BOSMAN RULING: A JUDGEMENT THAT MADE MODERN FOOTBALLERS RICH

Introduction

The club football in Europe is more than just a game. The clubs are a part of their daily lives, their culture and heritage. Apart from that, Football in Europe is a multibillion-euro industry. The European football always has been a destination for top football players to pursue their career in the sport. The essential feature of European football is transfers. Players often move to big clubs to find the name and fame for themselves. This is done by paying a transfer fee by the interested club to the original club. Often such transfers set out to be a tug of war situation between the club and the players. For example, the proposed of Neymar Jr. in 2017 was resisted from the side of FC Barcelona, but he pushed and moved to Paris Saint Germain FC for a record transfer fee of 222Million euros. The case of Union Royale Belge des Societes de Football Association ASBL v. Jean-Marc Bosman[1] set out to be a precedent as far as transfer policy in European football is concerned.

Facts of the case

Jean Marc Bosman, Belgian footballer who played as a midfielder for RC Leige, a first division football club in Belgium. He was offered a new contract post expiration of his original one in 1990. He was offered a deducted salary from his club, so he decided to move to another club as a free agent in the transfer window. In July 1990, a French second division team SA d’economie mixte sportive de l’Union Sportive du Littoral de Dunkerque (US Dunkerque) approached RC Leige for the transfer of the player, as a free agent (his contract with RC Leige expired that season). RC Leige demanded a transfer fee of BFr1 200,000. The transfer deal collapsed due to inability of FC Dunkerque to pay the transfer fee. After this incident, the club reduced his wages by 75% and demoted him to the reserve team of RC Leige. Jean-Marc Bosman sued RC Leige for the same.

Applicable Laws and Transfer Policy

The European Court of Justice started proceeding in accordance to section 48, 85 and 86 of Treaty of Rome. Article 48 talks about the freedom of movement with respect to employment. Article 85 and 86 talks about the competition rules. According to article 48[2], every worker is allowed to work and seek employment anywhere in the European Union, irrespective of nationality. The main goal of this article was to establish European Union as a common market[3]. Agreements between undertakings and groups of undertakings that distort competition inside the common market and impact trade between Member States are prohibited under Article 85(1)[4]. According to Article 85(2), any agreements or activities banned by Article 85(1) are instantly null and void. Article 86[5] concerned with the dominant positions taken by the various enterprises which restricts trade between member states. Dominant position refers to a situation where a firm or company behaves independently and takes their own decision without taking into account of their competitors, purchasers, suppliers, investors. It can be done by either controlling either the demand side or supply side of the market.

Judgment

The European Court of Justice, in its ruling said that the transfer system is against the Article 48. This is because it simply restricts the player’s freedom of movement by preventing them to play from other member nations[6]. Also at that time, 3+2 rule also applicable to various football leagues across Europe. According to this rule, the club was allowed to field only 3 foreign players and two players who have been a resident of the country where the club belong. For example, Manchester United, an English club, should consist of at least 8 English players in the playing XI for a match. This made the players life difficult to find a place and showcase their talent in a bigger club such as Real Madrid.  Lifting the restrictions, the court were of the view that the rule violates article 48 of Treaty of Rome mentioning it discriminatory and preventing talented individuals to play for the member nations[7]. The court did not rule in accordance with articles 85 and 86 since the rule was determined to be in conflict with article 48. Both rules, according to the judgement, were completely within the scope of article 85(1)[8]. The transfer laws ban on foreign players maintained the demand and supply for teams in terms of recruitment and scouting, which did not violate article 85. (3). Also, because the rules solely affected relationships between players and clubs, the judge found no misuse of dominant position as defined in article 86.

Conclusion

Players are more comfortable going from one team to another and from one league to another, setting aside the transfer fees and constraints on the number of outside players a team was having. Long-term contracts are becoming more popular among clubs, making it easier for them to collect a predetermined amount of money when selling a player. As a result, when it comes to negotiating contracts with organisations, players are in a much stronger position. When their contracts end, all players are free. However, a small number of athletes are either unrestricted free agents or are under contract because their unique abilities are in high demand. Players have been able to demand and withdraw money in ways that were not possible before Bosman’s judgement. Players who are dissatisfied with the team’s management or believe their club has no chance of winning a trophy or titles now have the power to seek a move without danger of being fired, as long as they are capable enough as players.

Author(s) Name: Pushpam Jha (Symbiosis Law School, Noida )

References:

[1] URBSFA v. Bosman, [1996] 1 C.M.L.R. 645

[2] Treaty of Rome, 1957

[3] Patrick Closson, ‘Penalty Shot: The European Union’s Application of Competition Law to the Bosman Ruling’ (1998) 21 B C Int’l & Comp L Rev 167

4 Treaty of Rome, 1957

[5] Treaty of Rome, 1957

[6] Blair Downey, ‘The Bosman Ruling: European Soccer – Above the Law’ (2001) 1 Asper Rev Int’l Bus & Trade L 187

[7] William Duffy, ‘Football May Be Ill, but Don’t Blame Bosman’ (2003) 10 Sports Law J 295

[8] Andrew L. Lee, ‘The Bosman Case: Protecting Freedom of Movement in European Football’ (1996) 19 Fordham Int’l LJ 1255

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