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The Bosman Revolution: Redefining Player Rights in European Football

By Avinash Kumar

INTRODUCTION:


The tradition of player transfers has been ingrained in football since its surge in popularity in England toward the late 19th century. Dating back to the 1893/94 season, players were exclusively registered with one club and permitted to play solely for that team throughout the season. This marked the initial restriction on player mobility within football, a model adopted by subsequent leagues formed after the English league. However, if a club revoked a player's license, the player could then be signed by a new club for the following season, albeit with the obligation for the new club to compensate the former club to incentivize the release.


As football grew to become the predominant sport across Europe, particularly economically, player transfers became more frequent. The globalization of football, spurred by industrialization and the aftermath of World War II, saw an increase in intercontinental transfers and the scouting of players. Another prevalent restriction was the limitation on the number of foreign players allowed on a team, commonly known as the "3+2" rule, where European competitions stipulated that each team could field only three foreign players.


The Bosman case dismantled two fundamental pillars of the existing regulatory framework. Firstly, it abolished restrictions on the number of foreign players allowed to play for clubs in all EU member states, thereby enabling an unlimited influx of foreign talent across European teams. Secondly, it put an end to the practice of imposing transfer fees when a player's contract expired. Previously, clubs had the authority to demand a fee for a player even after their contract had lapsed, provided certain conditions were met. This change was perceived to have both positive and negative consequences. On one hand, it was believed to benefit smaller clubs, allowing them to recoup expenses incurred in training and developing players. Conversely, there were concerns that the elimination of this system might discourage clubs from investing in youth development, as they could potentially save money by purchasing players from other clubs instead.

 

TRANSFER RULES PRIOR TO THE BOSMAN CASE:


Under the broad FIFA transfer regulations, each continental confederation had the authority to establish its own transfer rules. UEFA exercised this right by implementing its own transfer regulations for its member associations. Among these regulations, two in particular sparked controversy.


The first regulation granted players at clubs within the European Union the right to transfer to foreign clubs once their contracts expired. However, it mandated that the player's new club compensate the former club with a transfer fee. UEFA justified this rule by asserting that it aimed to reimburse the former club for the player's training and development expenses. In practice, though, transfer fees demanded by clubs often far exceeded the actual costs incurred for player development. Consequently, this system proved to be highly advantageous for the player's former club, serving as a significant revenue stream, while posing relatively minimal financial burden on the new club.


Expanding upon this, it's worth noting that the imposition of transfer fees was intended to strike a balance between incentivizing clubs to invest in player development and ensuring fair compensation for the efforts and resources expended. However, the discrepancy between the actual costs of training and development and the transfer fees demanded raised questions about the fairness and transparency of the system. This disparity also fueled debates about the economic implications of player transfers and the distribution of financial resources within the football ecosystem.


The second regulation implemented by UEFA, known as the "3+2 rule," mandated that national football associations within the European Union impose restrictions on the number of foreign players permitted to participate in first division matches for a club. Specifically, clubs were limited to fielding a maximum of three foreign players alongside two "assimilated" players. Assimilated players were foreign individuals who had continuously represented a national association for a minimum of five years, with at least three of those years spent on a junior team.


Similar to FIFA's approach, UEFA granted its national associations the authority to formulate their own transfer regulations. However, these regulations had to align with FIFA and UEFA transfer rules and adhere to international footballing standards to ensure consistency across the sport.


Furthermore, FIFA regulations stipulated that an international transfer could only occur if the player's former national association issued a transfer certificate confirming the settlement of all financial obligations, including any transfer fees. Consequently, if a player's national association governing the club withheld the transfer certificate, the player's ability to transfer was effectively blocked. These transfer regulations not only constrained players' career choices but also bestowed considerable power upon associations and clubs over the players.


The imposition of such regulations aimed to maintain a balance between nurturing domestic talent and fostering competitiveness within leagues. However, critics argued that these rules disproportionately favored established clubs with greater financial resources, limiting opportunities for players from smaller clubs or less affluent regions to pursue career advancements. Additionally, the stringent requirements for international transfers underscored the complexities and power dynamics inherent in the global football transfer market, often leaving players vulnerable to the whims of governing bodies and clubs.


FACTS OF THE CASE


1. Within the European Union, football is divided into amateur and professional spheres, with professional football organized around clubs affiliated with national associations or federations. These national associations, such as Belgium's ASBL Union Royale Belge des Societes de Football Association (URBSFA), are members of the Fédération Internationale de Football Association (FIFA), which is further divided into confederations, with UEFA governing football in Europe.


2. Before the Bosman case, URBSFA had established rules regarding player contracts and transfers. According to these rules, when a player's contract was set to expire, the club was obligated to offer the player a new contract by April 26. If the player rejected this offer, they were placed on the compulsory transfer list from May 1, allowing other clubs to purchase the player's rights by paying a compensation fee for training, known as transfer fees. From June 1, the period of free transfers began, during which clubs could mutually agree to transfer a player after paying the requisite transfer fees. If a transfer did not occur, the club was required to offer the player a contract not less favorable than the initial offer by April 26. If the player rejected this contract, they were classified as an amateur and had to wait two years to transfer without the club's consent.


3. Jean-Marc Bosman, a player for Belgian club RC Liege, was offered a new contract with a significant wage reduction, prompting him to refuse the offer and be placed on the transfer list. During the free transfer period, French second-division club US Dunkerque expressed interest in signing Bosman. However, under international transfer rules, the Belgian Football Association had to issue a transfer certificate to the French association within a specified timeframe.


4. Despite RC Liege and US Dunkerque agreeing on a transfer fee, RC Liege withheld permission for the transfer certificate due to concerns about Dunkerque's financial stability. This prevented Bosman from joining US Dunkerque, leading to his legal challenge in the Court of First Instance in Liege, ultimately resulting in the landmark ruling by the European Court of Justice (ECJ) in 1995.


ANALYSIS OF JUDGMENT


  • Jean-Marc Bosman's lawyer, Jean-Louis Dupont, utilized three key legal provisions in his argument: Article 48 of the EEC Treaty concerning the free movement of workers, and Articles 85 and 86 of the EEC Treaty addressing the imposition of restrictive practices and abuse of a dominant position. Bosman contended that the existing transfer regulations in football infringed upon his ability to seek employment in another country, particularly asserting that limiting the number of foreign players to three per club violated Article 48.


  • Article 48(2) explicitly prohibits discrimination against any EU citizen and ensures that foreign workers enjoy the same rights as domestic workers. Article 48(3) guarantees individuals the right to actively seek employment in another EU member state, provided their career as a football player is recognized as a profession from which they derive income.

  • The commercialization of sports was evident early on, highlighted by the abolition of maximum wage restrictions for players in 1961, which resulted in a significant increase in player salaries. Despite UEFA's contention that only "super clubs" could be considered economic entities, the ECJ ruled that football constitutes an economic activity when players are gainfully employed and receive remuneration, regardless of the profitability of the activity. This decision affirmed the applicability of EU law to the economic aspects of sport and rejected the argument that sporting organizations like UEFA could operate autonomously when their rules impede free movement.


  • Regarding transfer regulations, the ECJ examined whether they hindered free movement by allowing clubs to demand transfer fees for players no longer under contract. Dupont argued that such fees impeded players' ability to freely pursue employment opportunities. The Court concurred with this interpretation, ruling that transfer fees contravened Article 48 of the EEC Treaty.


  • The ECJ gave the following press release in order to underlie its opinion:

“Application of Article 48 of the Treaty is not precluded by the fact that the transfer rules govern the business relationships between clubs rather than the employment relationships between clubs and players. The fact that the employing clubs must pay fees on recruiting a player from another club affects the players' opportunities for finding employment and the terms under which such employment is offered.”

 

CONCLUSION


Football remains the most popular sport in many regions worldwide, with events like the FIFA World Cup 2018 drawing fans from across the globe and fostering a sense of international camaraderie. National pride plays a significant role, evident in matches like France versus Croatia, which evoke strong emotions on both sides.


However, at the club level, the landscape has transformed since the Bosman case on December 15, 1995. Borders between countries have become less distinct, and the sport, particularly football, has become more international than ever before. Players now have the freedom to choose their clubs without being hindered by discriminatory clauses, leading to greater mobility and diversity within the sport. The ability to change clubs without transfer fees after the expiration of a contract has further accelerated this trend.


The Bosman Case has brought about a significant transformation in European football, particularly in terms of internationalization and the recognition of sport as an economic activity under European law. The influx of foreign players into European football leagues has reached unprecedented levels, highlighting the sport's global nature. The Bosman ruling unequivocally establishes that sport falls within the purview of European law, especially when it involves economic aspects. Football's increasing commercialization is evident in the substantial budgets of clubs across the top five European leagues.


Jean-Marc Bosman's determination and perseverance played a pivotal role in challenging the football establishment. Without his actions, the Bosman case may not have come to fruition, and the transfer rules and nationality clauses might still prevail today. His victory against the football system underscores the primacy of human rights under EU law as affirmed by the European Court of Justice.


Ultimately, the Bosman Case represents a watershed moment in European football, signaling the triumph of individual rights and the recognition of sport as a significant economic activity governed by European law.


*The Author is a legal Scholar from India




(The Image used here is for representative purposes only)


References:

  1.   This was decided by the Court of Appeal in England in the Radford case (1893) as Nothingham Forest F.C. went to court in order to prevent this player to sign with the Blackburn Rovers F.C.  

  2.  Amikan Omer Kranz, The Bosman Case: The Relationship Between European Union Law and the Transfer System in European Football, 5 Colum. J. Eur. L. 431, 435 (1999).    

  3. Supra  

  4. Stefaan Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU Post Bosman 210 (2005).    

  5. Case C-415/93, Union Royale Belge des Sociétés de Football Ass’n ASBL v. Bosman, 1995 E.C.R. I-5040, I-5073, I-5078; Kranz, supra note 66, at 435.

  6.  Bosman, 1995 E.C.R. at I-5047.

  7.  (Bosman Case, Judgement of the Court paragraph 74)  

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