Written by Aryaman Tewari*
Introduction
Player transfers have grown to become an integral part of the global footballing network. The frenzy and excitement surrounding transfers that would earlier fill up the back pages of newspapers can now be found everywhere. Transfer gossip columns are being updated daily (or even hourly), with fans from across the globe eagerly awaiting the news surrounding their favourite clubs and players. Although we are familiar with processes and behind-the-scenes of transfers today, the system has evolved and taken many forms in the past century and a half. This evolution can be best described as a tug-of-war between clubs and players who have greater bargaining power. Over the years, momentum has gone from one side to the other. Currently, it rests with the players, as was made evident by the transfer of Neymar Jr. to PSG (Paris Saint Germain), against the wishes of his employer club (FC Barcelona). To understand the arrival of greater bargaining power within players' hands, we look at probably the single-most impactful event in the history of player transfers in football – The Bosman Ruling.
Background
The ruling is named after Belgian footballer Jean-Marc Bosman who was playing for RC Liège (in the Belgian football league). Bosman’s contract had expired when he was offered an extension. However, the extension had a major caveat – Bosman had to take a pay cut to the extent of 75%, bringing down his salary to the minimum wage allowed under the Royal Belgian Football Association (URBSFA) rules. On the other hand, Bosman had attracted interest from French Club Dunkerque, who were willing to pay a significantly higher wage. The move ultimately failed because of Dunkerque’s inability to meet the transfer price levied on Bosman by RC Liege[1]. Effectively, RC Liège had priced an out-of-contract player out of a transfer move. In response, Bosman decided to take RC Liege, UEFA and the Belgian FA to the Court of Justice of the European Union, questioning the lawfulness of levying a transfer fee on an out-of-contract player[2]. The European Court based its findings upon several European Community (EC) Treaty provisions, particularly on Articles 48 (or Article 39 of the EC Treaty), 85 and 86. The Article reads –
“Freedom of movement for workers shall be secured within the Community.
Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
It shall entail the right, subject to limitations justified on the grounds of public policy, public security or public health:
to accept offers of employment actually made;
to move freely within the territory of Member States for this purpose;
to stay in a Member State for employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
to remain in the territory of a Member State after being employed in that State, subject to conditions that shall be embodied in implementing regulations to be drawn up by the Commission.
The provisions of this article shall not apply to employment in the public service”[3]
Employing the aforementioned provisions, the Court decided that levying a transfer fee upon out-of-contract players and having a nationality-based cap on the number of players in a football team violated the principle of free movement of labour (a right promised to people belonging to the EU)[4]. The Janssen Van Raay Report went to the extent of claiming the then state of the football transfer system to be similar to the “latter-day version of the slave trade, a violation of the freedom of contract and the freedom of movement guaranteed by the Treaties”[5].
Bosman won. The ruling can be attributed to the development and establishment of the transfer system as we see it today. Foreign quotas within UEFA competitions were removed. Players were no longer held hostage by football clubs beyond their contracts but were now deemed as ‘free agents’.
Impact Of The Ruling
The ruling of the Court of Justice of the European Union effectively put an end to the ability of football clubs to hold players hostage. By reinforcing the principles of freedom of contract and movement of labour, the concept of free transfers was birthed. This concept has become an integral part of the current football player transfer system. Where earlier, the player could be kept back against his wishes even if the employment contract period had expired, now the players were free of the duties and responsibilities they owed to the football club. Consequently, players were free to seek employment elsewhere once their existing contract expired.
The overall/large-scale impact was dramatic inflation in the footballing market. With players capable of leaving football clubs for free, clubs were forced to use better packages and higher salaries to attract the best talents from across the globe. According to an article published in 2012 by The Guardian, player wages had seen an astronomical rise of 1500% in the last 20 years. More interestingly, the report also briefly mentioned how the fans of the beautiful game were facing the brunt of its inflation by facing an increase in ticket prices, merchandise and other related commodities[6]. Football today has become an extremely commodified field. Specifically, the Ruling has changed football transfers, wherein players are now treated as assets utilized by and traded amongst the various football clubs around the world. Before the Ruling, the transfer system was characterized by football clubs having greater power over their players. However, the current system has at least introduced parity, if not put players in a stronger position to negotiate fair terms of employment with their employers. It may even be argued that ‘free agency’ has led to the rise of ‘player power’ compared to ‘club power’. This has led to the introduction of ‘agents’, who act as representatives of a footballer. As the name suggests, these people are agents of the players, seeking to acquire sponsorships, brand deals, better wages, etc., for the players they represent. So the Bosman Ruling has had a domino effect.
Conclusion
Notwithstanding the obvious resultant benefits and enforcement of rights via the Bosman Ruling, some glaring negatives exist to the forthcoming narrative. The ruling reinforced the wealth divide between football clubs. The clubs capable of paying the best wages started building super squads by attracting the best talent. The ‘smaller’ clubs found it increasingly challenging to keep a hold of their excellent players lured by the big clubs' financial incentives and greener pastures. Therefore, the ruling unintentionally morphed football into the inflated form we find it in today, taking away with it the much-needed competitiveness and replacing it with a pay-to-win scheme.
* The author is a law Scholar of Jindal Global Law School, India.
(The image used here is for representational purposes only)
References
[1] Prior to the ruling, football clubs were not mandated to let their players leave without a transfer fee at the end of their contract. Therefore, the decision to let the player go was entirely within the club's hands regardless of whether he was in or out of contract.
[2] Case C-415/93, URBSFA v. Jean-Marc Bosman [1996] All ER (EC) 97 (ECJ and Advocate General Lenz).
[3] The European Commission Treaty, a 39.
[4] P.E Morris, S Morrow & P.M Spink, EC Law and Professional Football: Bosman and its Implications, 59 The Modern Law Review 893-902 (1996).
[5] J.V Ray, Report of the Committee on Legal Affairs and Citizens’ Rights on the Freedom of Movement of Professional Footballers in the Community (European Parliament, Session Documents Series A (1989).
[6] Top footballers' wages rise 1,500% in 20 years, The Guardian (2012), https://www.theguardian.com/football/2012/aug/20/footballers-wages-rise-tickets (last visited Sep 15, 2021).
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