This installment focuses on Part I of the article: The impetus of European Union (EU) involvement in professional soccer. The following sections discuss two important aspects of the issue. First, a description of the organization of professional soccer in Europe will be provided. Second, readers will be introduced to the Bosman case, which signified the beginning of the EU's interest in the regulation of professional soccer in Europe.
I. The Impetus for EU Involvement in Professional Soccer
a. The Organization of Professional Soccer
Organized soccer is played by teams which belong to national associations; each Member State has a single association which is responsible for organized soccer at the national level. [1] The national associations in Europe are members of the Union of European Football Associations (UEFA). [2] UEFA is the European arm of the Federation Internationale de Football Association (FIFA), which is the worldwide governing body of soccer. [3] It is the rules of these associations which may be challenged under EU law.
Prior to 1995, there was relatively minimal involvement in the EU's regulation of sports, including professional soccer. [4] Although there were a small group of cases which dealt with sports, for the most part, the European Court of Justice (ECJ) and the European Commission rarely intervened. [5] But, in 1995, the Bosman ruling was handed down, which marked a new era in the EU's involvement in professional soccer.
The Bosman case is perhaps one of the most well-known cases in Europe. The case signified the proactive approach the EU was willing to take with sports, and more specifically, with professional soccer. The decision sent shockwaves throughout the European soccer leagues. Ultimately, the case displays the ability that EU law has in affecting changes in the governance of professional soccer in Europe. [6]
b. The Bosman Case
Jean-Marc Bosman was a Belgian soccer player who was employed by RC Liege, a Belgian first division soccer team. [7] Prior to Bosman's contract expiring, his team offered him a new contract at a lower salary than he was previously earning, which he rejected. [8] He was then placed on a transfer list. In order to be transferred to another team, such a team would have to pay a transfer fee. [9] Another team showed interest in acquiring Bosman and began negotiating a transfer with Bosman's original team. [10] A deal was agreed upon, but ultimately fell through, and Bosman was suspended from his team for the entire season. [11] Bosman then filed suit. [12] After the case made its way through the Belgian national courts, the ECJ was asked to interpret the applications of Articles 39, 81, and 82 of the EU Treaty to the transfer and nationality rules of professional soccer. [13]
Although the transfer rules imposed on Bosman were the Belgian transfer rules, which were more restrictive than the UEFA rules, the ECJ stated that the UEFA rules were still relevant in the preventive actions brought by Bosman against URBSFA and UEFA, and that the ECJ's decision on the legality of the UEFA transfer system would be useful to the national courts. [14] The ECJ held that "the transfer rules constitute an obstacle to tfreedom of movement for workers prohibited in principle by Article [39] of the Treaty." [15]
Bosman's opposition argued that the rules were needed in order to maintain financial and competitive balance between teams, and to support the recruiting and training of talented new players. [16] But these defenses were rejected, as player transfers usually do not have a significant effect on financial resources and so do not affect the competitive balance between teams; and, the receipt of transfer fees was not a major factor in a team's decision to find and train new players. [17] Thus, the court ruled that the violation of Artilce 39 of the EU Treaty was not justified. [18]
The Court also held that the nationality clause in the professional soccer regulations were in violation of Article 39. [19] The nationality regulations in question allowed national soccer associations to limit the number of foreign players a team in a given association was allowed to field. [20] The Court held that the nationality clause constituted an obstacle to the freedom of movement of professional soccer players. [21]
Ultimately, the Court did not decide whether transfer and nationality rules were in violation of EU competition laws. [22] But, the Court did not rule out the applicability of competition laws. [23] Indeed, the court reaffirmed the notion that the economic aspects of sports, and in this case, professional football, were not immune from EU regulation. [24]
Bosman left much to be determined. The ruling marked a new stage in EU involvment in professional soccer, cutting at the heart of soccer rules which had previously been left to the judgment of the governing bodies of soccer.
But it was somewhat surprising that the Bosman court did not analyze the issues which arose in that case through the application of Articles 81 and 82. However, it seems as though competition policy will be the primary method used to address problems in professional soccer. [25] How competition law should apply to sports is perhaps the most glaring question. The Court in Bosman did not treat professional soccer like it would treat an ordinary form of business, recognizing that although professional soccer is an economic activity, it also possessed peculiar characteristics which must be taken into consideration when determining how EU law applies. [26] But the question of how to balance these characteristics with the goals of EU competition law remain unanswered, and the current uncertainty surrounding the EU's regulation of professional soccer remains.
Sources:
[1] See Case C-415/93, Union Royale Belge des Societes de Football ASBL v. Bosman, 1995 E.C.R. I-4921, 4 (Lenz, Adv. General).
[2] See id.at 5.
[3] Id.
[4] Ken Foster, Can Sport be Regulated by Europe?: An Analysis of Alternative Models, in PROFESSIONAL SPORT IN THE EU: REGULATION AND RE-REGULATION 44 (Andrew Caider and Simon Gardiner, eds., T.M.C. Asser Press 2000).
[5] See id.; See also Case 36-74, Walrave and Koch v. Association Union cycliste internationale, 1974 E.C.R. 1405, 4 (stating that "the practice of sport is subject to community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty.").
[6] Stephen Weatherill, Resisting the Pressures of "Americanization": The Influence of European Community Law on the "European Sports Model", 8 WILLIAMETTE J. INT'L L. & DISPUTE RES. 37 (2000).
[7] Bosman, 1995 E.C.R. I-4921, at 28 (ECJ).
[8] Id. at 29
[9] Id. Under the Belgian association rules, before the expiration of a player's contract, the team must offer the player a new contract, id. If the player refuses, he is placed on the transfer list, id.
[10] Id.
[11] Id. at 30.
[12] Id. at 34.
[13] Id. Bosman brought an action against RC Liege to the Belgian Court of First Instance; that court ordered RC Liege and the Belgian Association to pay Bosman a portion of his requested salary in advance and to refrain from impeding Bosman's attempts to find employment with other teams. That court also asked the ECJ for a preliminary ruling on the interpretation of Article 48 in regards to the transfer rules for professional soccer players. Later the Cour d'Appel revoked a portion of the lower court's ruling dealing with the request for a preliminary ruling. In new pleadings, in 1992, Bosman amended his claim against RC Liege and UEFA, and brought a new action against the Belgian Association, seeking a declaration that the transfer rules and nationality clauses were inapplicable to him. The Cour d'Appel found that Bosman's claims required considering the legality of transfer rules under the labor and competition laws of the EU, and so made a reference to the ECJ for a preliminary ruling on the interpretation of Articles 39, 81, and 82 of the EU Treaty (previously 48, 85, and 86).
[14] Id. Note that the Cour d'Appel considered, with regard to Article 81, that the regulations "might constitute decisions of associations of undertakings by which the clubs restrict competition between themselves for players. Transfer fees were dissuasive and tended to depress the level of professional sportsmen's pay. In addition, the nationality clauses prohibited foreign players' services from being obtained over a certain quota. Finally, trade between Member States was affected, in particular by the restriction of players' mobility." Id.
[15] Id. at 63.
[16] Id. at 104.
[17] Id. at 105.
[18] Id. at 107.
[19] Id. at 114.
[20] Id. at 137.
[21] See Bosman, 1995 E.C.R. I-4921, 39 (Lenz, Advocate Gen.) (discussing UEFA's adoption of the "3+2" rule).
[22] Bosman, 1995 E.C.R. I-4921, 137 (ECJ).
[23] Id. at 138.
[24] Id.
[25] Id.
[26] Weatherill, supra note 6, at 64.