Analysis of the Bosman Case

Analysis of the Bosman CaseThe finding of the ECJ in the Bosman case1 had an super pregnant imp mould on professional sports at heart the European sum. As has been pointed out by a human act of commentators the finis in Bosman lead to an oerhaul of the animate agitate overlooks of night indian lodge football within Europe. It in each case had a wider impact on professional sports as a unit as the post-Bosman catamenia witnessed a signifi dirty dogt influx of mig ration of professional athletes within the EU.2 Within the EU, sport has assumed a special status and forms an entire part of European identity and its culture. The European parliament has coined the term specifity of sports to take aim the interaction of company honor in the sporty arena and the leave al wiz of such(prenominal)(prenominal) an interaction.3 This interface in the midst of sports and community natural natural law was first turn to in Welgrave and Koch v Union Cycliste Internationale4 followed closely by an some new(prenominal) decision in the case of Dond v Motero.5 Almost twenty years drink the airwave came the decision in Bosman which cl early elucidated the role of Community law within the sporting arena and in the process re sustain and elaborated upon whatever of the tenets discussed in the two above menti iodind decisions.The controversy around the Bosman decision stems from the feature that it put an end to the liveing conveying process in European football by abolishing participant convey earnings formation and creating unbosom agency for European footballers. It excessively brought an end to the existing UEFA Non-National rules. Both the above regulations followed by European clubs were testinged against the Community provisions aimed at tax shelter of labour rights and were be wanting. The manoeuvre rules as well as the nationality rule was found to be violative of grimace 48 of the Community pact safeguarding against free moti vatement of labour as well as anti- prejudiced manipulation of workers. The consequence of the Bosman model lies in the fact that it managed to make a significant contribution to the corpus of labour law by emphatically reinstating that sportspersons rights were protect within Community law and also travel down the fashion model for subsequent public opinions which further established the labour rights of professional sportspersons.The opus testament first explain in brief the background in which the Bosman judgment arose. Then paper testament delve into the intricacies of the judgment along with few of the most persuasive arguments increase by the parties to the dispute. Then judgment of the tribunal along with the reasoning behind the judgment will be explored. At the outset it has to be mentioned that the paper will wholly address the issues of impartation rules and nationalily rules which were evaluated on the anvil of phrase 48. The ancillary issue of cerebrat e to name 85 and Article 86 of the Community accordance would not be addressed. In the next section the paper will explore the terminus to which the judgment in Bosmans case contributed in settling the law related to free movement and non contrast of sportspersons within the EU. In this section of the paper subsequent judgments would also be briefly looked into to describe the establishment and discipline of the article of belief of applicability of non sexist principle within the arena of sports in the EU. last the paper will briefly look back at the arguments raised in the Bosman case related to the need for keeping sports distant the ambit of the provisons of Community treaty. In this section existing regulations in England as well as the United States will be looked into to evaluate whether the guidelines laid down in Bosman is in sharp contrast to the sporting regulations existing in those states.Literature ReviewA Closer Look at the Judgment of BosmanBackground and Fa ctsWithin the European Union football is play either as an amateur or a professional sport. The mental synthesis of professional football comprises of clubs which belong to national associations or federations. The national associations including Belgiums ASBL Union Royale Belge des Societes de Football Association (URBSFA) are members of the Fdration Internationale de Football Association (FIFA). FIFA is again divided into confederations, UEFA being the confederation which governs football in Europe.As per the rules framed by the URBSFA prior to Bosman case, every player whose issue is expiring must be offered a new Contract by April 26, failing which he is given amateur. The player has the survival of the fittest of accepting or egesting the contract offer. If the player rejects the contract, he is placed on the compulsory fare list for a month from 1st may onwards. In this period some(prenominal) club can buy the player from his existing club regular without the permission of the existing club by paying genuine compensation fee for training which is called transfer fees. On 1st June the period of free transfers begins and in this period a player can be transferred by the mutual agreement of both clubs after the requital of the unavoidable transfer fees. If the transfer does not take place the clubs are call for by URBSFA to offer a contract to the player which is not little than the initial contract of April 26. If this contract is rejected by the player, he is sort as an amateur and has two wait two years to agree a transfer without the clubs consent.Jean Marc Bosman, player for Belgian club RC Liege, was offered a contract before the expiry of his existing contract which entailed a stiff reduction in his wages, of almost 75%. As a entrust Bosman refused this new offer and as a consequence was put on the transfer list. During the period of free transfer the French second air division club US Dunkerque became interested in employing Bosman . up to now as per rules for international transfers, the Belgian football association had to pass a transfer enfranchisement to the French football association within a circumstantial time. just in spite of RC Liege and US Dunkerque agreeing upon the standard of transfer fee for a seasons, RC Leige refused to give permission to the Belgian league to pass on the certificate to the French association as they were unsure about the pecuniary solvency of Dunkurque. Thus Bosman was preveted from joining RC liege leading to the initition of a suit in the judgeship of First Instance in Leige which finally culminated in the watershed decision of ECJ in 1995.Transfer Rules and Article 48The hooks assuming legal power under Article 177, restated the principle of applicability of Article 48 of the EU Charter to sporting activity as long as on that point is an the existence of, or the intention to create, an date descent.ECJ unconquerable in spare of Bosman and against the respo ndents namely RC Liege, URBSFA and UEFA. The court ruled on two main issues. for the first time the move overhauled the existing transfer formation by holding that transfer fees for out-of-contract players were illegal and in violation of Article 48 of the EU treaty when the players were moving from one E.U. nation to another. Secondly the court also found nationality clause to be inconsistent with Article 48 and as a result stricken it down.Firstly in spite of the arguments raised by the respondents the ECJ found that the right to movement of workers as enshrined under Article 48, which is one of the quaternary fundamental rights guaranteed by the EU charter, was being go against by the existing transfer rules of URBSFA.The Court rejected the contention that transfer rules governs relationship amidst culbs and does not affect the players. The Court pointed out that transfer fees is a burden which the clubs has to bear and the failure to pay such fees ultimately affects the em ployment rights of the players.The Court then pointed out that in spite of being opposite to Article 48 the transfer rules could be saved if they could be justify on the causal agency of pressing public interest and the principle of counterbalance between the means exercised for the targetives sought. However in Court went on to reject the different justifications forwarded by the respondents.The Court found merits in UEFAs goal of mystify goting financial and matched balance but rejected the claim that the transfer rules furthered this object because the existing rules had failed to preserve the level of financial and competitive balance as the rules failed to embarrass the abundantest clubs from securing the best players. The merit of the second justification advanced by respondents regarding UEFAs goall of encouraging the recruitment and training of young talent was also authoritative by the Court. However the Court failed to establish the nexus between the transfer sy stem and the chance onment of that goal. The Court found no relationship to exist because the amount of a transfer fee is unrelated to the actual exist of training and recruitment, and because receipt of such fees for either particular player is speculative. in the end the argument that transfer fees are acceptable on the grounds that such transfer fees are necessary for clubs to buy players was rejected because the Court spy that obstacles to freedom of movement cannot be justified simply on the grounds tat such obstacle was in existence in the past.Finally the Court reaffirmed the opinion of the Advocate general that as alternatives which does not tantamount(predicate) to an obstacle to freedom of work can be used to achieve the ends sought by the transfer rules and therefrom the transfer rules has to be struck down.Nationality PrincipleThe ECJ also rules that the 3+2 rule which restricts the employment of footballers of a different EU state is in direct violation of Artic le 48(2) of the EU treaty which expressly seeks to abolish any discrimination ground on nationality between workers of the member states of the EU in relation to employment, wage and conditions of work and employment.6 In this regard the Court further refers to Regulation 1612/68 of the Council which seeks to enforce the provion under Article 48. Finally the court extends this principle of non discrimination to the existing transfer rules by referring to the principle propounded in the Dona case where regulations of sporting bodies were held to fall under this principle of non discrimination. In light of the conflict between the nationality provision of the ransfer rules and Article 48 the Court examines a few viable justifications which can save the nationality rule followed by UEFA.It was argued by the respondents that the nationality rule can be justified on non-economic grounds including maintaining a natural intimacy between the club and the res publica, the maintenance of a family of national players and to maintain the competitive equilibrium between the clubs.However the Court referring to the Dona case notice that though non economic objectives may justify the exclusions of certain players in certain fixtures but that principle is not relevant in this case because the 3+2 rule of UEFA applies to all clubs and all matches. Similarly the Court also observe that the nationality rule is not adequate enough to prevent rich clubs from acquiring the richest players. Further the argument regarding the nexus between club and country was also rejected along with the point regarding the maintenance of a pool of national players.Another important point which was argued and rejected by the Court was that the 3+2 rule was developed in cooperation with the Commission and hence should not be struck down. In this case the Court observed that Finally, as regards the argument based on the Commissions participation in the draft of the 3+2 rule, it must be point ed out that, except where such powers are expressly conferred upon it, the Commission may not give guarantees concerning the compatibility of specific practices with the Treaty Hence if the rule in violation of Article 48 then the fact tht it was made in cooperation with the European Commission will not validate it.Community Law and Principle of Non Discrimination of inappropriate NationalsIn order to understand the interface between nationality restrictions and its conflict with the EU treaty it is imperative to briefly look into the framework of the EC treaty. Sports per se has not found a place in the present EC treaty, but as has been discussed before, it falls within the competence of EC law when it concerns an economic activity.7 Article 12 of the EC treaty prohibits discrimination on the grounds of nationality. More specifically discrimination on the origination of nationality of workers is dealt with in Articles 398 to 42 of the EC Treaty. However it has to be remembered i n this context that the compatibility of a sporting rule with a particular article of the Treaty does not release the rule from the requirement to comply with other Articles of the Treaty.9 However, the general tax shelter against nationality discrimination can hardly be invoked in the absence of any specific provision within the treaty. This principle was elucidated in the case of Lehtonen and Castors Canada teetotal Namur-Braine v. Federation Royale Belge des Societes de Basketball (FRBSB),10 where it was observed that Article 39 of the treaty dealing with nationality discrimination of workers will be applicable in the instantaneous case. The Court further observed that Article 12 will only be applicable independently in case of the absence of any specific provision.11In light of the above framework of Community law the Lehtonen judgment can be briefly evaluated to chance whether it has also followed the Bosman line and determined whether a sporting rule can be discriminatory within the EC treaty in the absence of objective justification. In Lehtonen different periods of transfers were applicable in the Belgian basketball game league of players from Belgian clubs and European clubs. This vires of the transfer rule was challenged to be in violation of the non discriminatory rule enshrined under Article 48. The ECJ observed thatArticle 48 precludes the activity of rules laid down in a Member State by sporting associations which prohibit a basketball club from fielding players from other Member States in matches in the national championship, where they have been transferred after a specified date, if that date is earlier than the date which applies to transfers of players from certain non-member countries, unless objective reasons concerning only sport as such or relating to differences between the position of players from a federation in the European zone and that of players from a federation not in that zone justify such different treatment.12In other words the Court followed the line of Bosman and held that Article 48 can act as a threshold which specific sporting regulations have to stay by. However a divergence from the non-discriminatory principle is allowed if they can fulfill the test of objective satisfaction.One more interesting aspect of the non-nationality principle, which has come to the glower in subsequent cases, is the status of individuals belonging to non-member states who have entered into Cooperative agreements with the EU containing non discriminatory terms in relation to nationality of the members of those states as well as the members of third party states.In the Malaja13 ruling a Polish basketball player Malaja, challenged the restriction of the French Basketball Federation on the number of foreign players in a club. She based her claim on the behind of an agreement entered by Poland with the EU which ensured non discrimination of Polish workers within the EU. The Council the Etat held that the non-discri minatory principle enshrined in the EU treaty will also be applicable to eastern European states along with Poland who had entered into cooperation treaties with the EU.Another landmark decision in this respect is Kolpak case. Kolpak who was a Slovak national, signed consecutive fixed-term contracts in 1997 and 2000 as a goalkeeper for a second division handball team. However the German Handball Associations obligate a cap on the number of non-EU players who could play in one team. This precluded Kolpak from performing his duties under the employment contract. Kolpak held a valid residence give up in Germany. He took the dispute to the German courts arguing that the agreement between Slovakia and the EU would prevent the Handball association from treating him differentially from other non-EU or German players. The dispute was referred to the ECJ. The Court observed that the agreement with Slovakia did not contain any specific provision safeguarding against anti-discrimination. How ever the Court compared the agreement with Article 48 of Treaty of Rome and came to the conclusion that the agreement embodied the same principles which have been enshrined under Article 48. Hence even in the absence of any specific provision preventing discrimination, the Court held that the principles of non-discrimination established in Bosman can be blanket(a) to the present case. However the Court restricted the arena of the non-discriminatory principle by holding that the non-discriminatory principle construed from the agreement will be modified to Slovakian workers already employed in the member states of the EU.The final judgment that has to be mentioned in this regard is the Simutenkov case in which the Courts closely analyze the Bosman and the Kolpak decisions. The decision of the Court in the Simutenkov mirrored the judgment in Kolpak and extended the principle of non-discrimination to Russian workers employed within the EU. The decision followed Kolpak to the extent t hat the scope of the non-discrimination principle was restricted to existing workers. In other words it did not bestow a general right on all EU members to circulate freely within the EU.A Closer Look at the Sporting ExceptionIn Bosman, UEFA had argued that sports was always respected within the European Union and owing to the difficulty in extrapolating the economic aspect from football Article 48 should be interpreted in a flexile manner. German Government further emphasized on sports being an expression of European culture and hence should be protected under Article 128 of the Treaty of Rome which seeks to safeguard the national regional diversity of culture.However as has been discussed previously the Court relied on previous ECJ decisions in Walgrave and Dona to determine the extent to which Article 48 of the treaty of Rome can charm sporting activities. Again as recently as 2006, The ECJ in its decision in Meca-Medina v. Commission14, reaffirmed the principle of Bosman when they observed that having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2However the approach of the Court in this respect has been severely criticized in certain quarters. Commentators have asseverate that the Court has in their zeal to extend economic regulations have failed to have it away the specific nature of sports.15 However a brief look at sporting regulations and the legal restrictions imposed on such sporting rules in US and UK points to the shortcomings of bestowing unfettered power in respect of sporting activities.The transfer system in British football can be traced as far back as the last decade of the 19th ascorbic acid when football clubs started to purchase and sale football players. The concept of transfer fees was in existence even in that period. Even though these rules flagrantly violated the contractual and labour rights of the players, these rules remained in existence throughout the majority of the 20th century and were justified on the grounds of regulating player mobility and competitive equilibrium.The landmark case of Eastham16 the retention and transfer system17 was challenged by George Eastham who wanted to move from Newcastle to Arsenal. However Newcastle simply retained him despite his repeated request for transfers. As a result a writ was filed in the High Court against Newcastle for restraint of change. Five issues was considered by Judge Wilberforce out of which the one of relevancy where whether there was actual restraint of trade and whether such restrain was necessary for the maintenance of the nature of the league or its members. The Court found that Newcastle had indulged in activities which tantamount to restraint of trade. More importantly the Court found that the transfer and retention system was also an unreasonable restraint on trade on the ground that it acted as a barrier to the movement of players even when their contracts have expired unless a transfer fee was paid.18As a consequence of the Eastham rulin the retention and transfer system was overhauled and a new system was introduced where a player was free to move from his existing club unless the club offered a contract which atleast equaled the terms of the previous contract between the club and the player. In 1978 further changes were brough about which gave players the right to reject contracts and move to a different club. Further it was provided that in case of a dispute between the new and the former club regarding transfer fee a four member panel will be constituted to determine the amount of transfer fees.Finally the regulations existing in the baseball league in US MLB and its interface with different fields of law can be briefly explored. The major contentious issue in American baseball league was surrounding the reserve list and reserve clause which raised significant questions regarding players right to movemen t and free agency. However in the early years of the twentieth century the US legal system was loth(predicate) to the idea of collective bargaining rights and hence there was a ammunition chest in the law related to labour rights. Further the Sherman Act, which sought to prevent restraint of trade also provided an exception to the MLB and as a result the employment rights of the players suffered. However the gradual development of collective bargaining culminated into the public of baseball players associationMLBA which entered into a collective bargaining agreement with the club owners. The significance of this collective bargaining agreement was that it contained an arbitrational clause for addressing players grievances. On the basis of this collective bargaining agreement, arbitration proceedings were initiated inNational American League master Baseball Clubs v. MLBPA19 where baseballs reserve system was challenged. The arbitrator found in favour of the players. However the true significance of the judgment lies in the fact that the arbitrator held that though it was possible to negotiate a reserve system which contained the option of continuous renewal, however the option clause was not implied into the contract and had to be bargained for. In other words the arbitrator laid down that the though the reserve system cannot be overhauled, however the incorporation of such a clause in player contract cannot be implied. The presence or absence of such a provision will be decided on the basis of collective bargaining between the parties. This was also affirmed by the1 Union Royale Beige des Societes de Football Assn ASBL v.Bosman, 1995 E.C.R. 1-4921, 1 C.M.L.R. 645 (1995234 1974 ECR 14055 1976 2 C.M.L.R. at 58767891011121314 Meca Medina v. Commission, 2006 E.C.R. I-699115 It has been argued that players have been treated as mere factors of production and the association of sports with the culture and identity of the Community have been overlooked. Further it has been suggested that one of the direct shortcomings of Article 6 dealing with discrimination in general and portion 48 dealing with discrimination against workers is that these two article fail to hump this important characteristic of sports.16 Eastham v. Newcastle United Football Club, Ltd., 1964 Ch. 413, 419.17 Prior to the Eastham case this system existed in England where a club could virtually retain control over a player even after the expiry of a contract by withholding his player registration. A player could not move until the registration documents were released by the club which was usually done on the payment of a transfer fees.1819 66 Lab. Arb. Rep. (BNA) 101 (1975) (Seitz, Arb.).