The, one, or the one legacy of Bosman?

Mikael Hansson
Juridiska fakulteten, Uppsala universitet

Probably one of the most widely known football players in Europe ever is the Belgian footballer Jean-Marc Bosman. His fame does not, however, stem from his career on the football pitch, but from the case that bears his name and its impact on football transfer rules. “To leave on a Bosman”, “to do a Bosman move”, etcetera, is more or less universal language in the world of football. In short and simplified terms, it means that a professional football player whose contract with a specific club have expired is entitled to leave that club to play for another club without the former club being entitled to any compensation (for younger players a compensation for training and development is to be paid to previous clubs, thus the liberalisation of the professional football Bosman is said to imply is not fully implemented).

Before the Bosman judgment (Case C-415/93 Bosman, judgment 15 December 1995), a professional football player could not leave his club for which he (adding an “or she” would be to ignore the fact that professional football was, and is, predominantly a male activity – an issue not addressed in the book) was registered for a new club, even if the player’s contract had expired, if a transfer fee was not paid by the new club. If such compensation was not paid, the former club could prevent the player to play for another club in the following year, thereby effectively preventing him from practicing his profession. In accordance with this regulation, the professional football player Jean Marc Bosman was prevented by his Belgian club to move to a French club, since the former wanted a higher fee than the latter was willing to pay. This regulation was challenged by Jean Marc Bosman in a Belgian court, as he claimed it was interfering with the free movement of workers within the European Union (professional players is in this respect “workers”). In addition, the UEFA regulation also stated a cap on foreign players in the European cups (maximum three), a cap which most of the national sports governing bodies had implemented as well.

The Belgian court referred the case to the Court of Justice of the European Union (CJEU), which ruled that national courts could not uphold the transfer regulation on professional players, thereby making the transfer rules impossible for the sport governing bodies to enforce. As a result, clubs could no longer prevent players from moving to another club when the contract ended, and the restriction on foreign players was (gradually) removed (first for EU players, and it has since developed into a regulation on “home-grown players” in the European cups).

The book is structured as a book, with consecutive numbering of the chapters ranging from the Introduction by the editors being chapter no. 1 and the last chapter being chapter no. 10. The chapters are written by a total of twelve authors, including the editors who also contribute with chapters other than the introduction. The chapters stands for themselves and need not be presented in a certain order (as “chapters” usually do), they do share a basic narrative; the impact and importance of the Bosman judgment. There is also a foreword, by the Advocate General in the Bosman case, Prof. Dr. Carl Otto Lenz (the Advocate General and the opinion he or she gives plays an important role in CJEU). The foreword is not restrained. After noting that the judgment (i.e. by the Court itself) largely followed his opinion he concludes that “[t]hanks to it, for the first time, millions of people learned that in ‘Europe’ they have individual rights and judges who protect them. This book celebrates the importance of the Bosman judgment as a fundamental case for the applications of EU law to sport and for the dialogue that it fostered between sports governing bodies and the EU institutions.“ A book “celebrating the importance” will, it seems, have a certain aim or at least a certain direction. In any case it cannot be expected to pose too much criticism on the object it celebrates.

One contribution (which also happens to be the only Nordic contribution) that stands out is the chapter by Johan Lindholm (whose Swedish textbook Idrottsjuridik [Sports Law] was reviewed by me on idrottsforum.org) and Mattias Derlén. In their analysis of the Bosman case, they perform an empirical study in which they aim at showing not only the Bosman judgment’s important place in CJEU jurisprudence, but also its quality. The study is potentially ground-breaking in legal science, and its methodological implications go well beyond the scope of sports law and EU law. Thus this chapter would be worth its own discussion on the relationship between importance, impact and quality, and what can be shown by different methods in legal research; however, this is not the place.

The chapter is, alongside the other chapters covering different issues of EU law and European football regulation, well suited to provide general knowledge to sport law lawyers. They may appeal primarily to EU law lawyers, but they may very well be of immediate interest for anyone interested in sports law and governance of professional sports, for example Katarina Pijetlovic’s “Framework for Analysis of Organisational Rules in Sport” in her chapter on EU Competition Law and Organisational Rules; the chapter by Simon Gardiner and Roger Welch on the transfer system and players’ quotas post Bosman; and Antoine Duval’s chapter on The FIFA Regulation on the Status and Transfer of Players (FIFA RSTP). The academic sports law lawyer is addressed in the last chapter, by Stephen Wetherill on The Lex Sportiva and EU law.

As for the celebration of the judgment and the implied lack of critical perspectives, the, however interesting, chapter by Borja Garcia, putting the Bosman judgment in context of an ongoing societal development, may serve as an example. In the chapter ”He was not alone”, Jean Marc Bosman’s legal team gets (well deserved) attention, but Jean Marc Bosman himself (and other less fortunate performers on the professional football arena) is somewhat reduced to more or less anonymous actors in an historical development leading to and explaining the Bosman judgment.

Perhaps it is unfair to criticise a book for what it is not, and perhaps it would be out of place, in a book celebrating a case arguably altering the rules of and conditions for professional sports, to put forward a somewhat tragic story of the man behind that case. But, it is difficult to get rid of the feeling that there may be another legacy, or other legacies, of the Bosman judgment on a harsh European labour market for professional or aspiring football players also well worth exploring. Things may not have been better (or even different) without the ruling – but we are not really given a chance to find out (instead, the fears of the governors of football, such as the UEFA president at the time, Lennart Johansson, over the judgment is made an example of those same leaders’ unawareness of the times a-changin’). It might have been even more rewarding to deal with Bosman not only as a famous judgment, but also as an infamous one.

Copyright © Mikael Hansson 2016