Few people have spent more time studying the Bosman Judgment than Glyn Ford, Labour MEP for Greater Manchester East, and he thinks that a lot of what has been said has missed the point. This could turn out to only be the beginning
Pages and pages have been written on the European Court of Justice (ECJ) ruling in the Bosman Case. And they’ve all been wrong. Jean-Marc Bosman took two issues to the Court. Firstly, that of the transfer system, and secondly, limitations on ‘foreign’ players. He won both arguments, but not in the way it has been commonly described. The European Court did not outlaw the foreign player rule – three foreigners plus two assimilated players. They ruled instead that under Article 48 of EC law it was illegal to discriminate against nationals of other Member States, thereby making all EC citizens domestic players.
Similarly it included in this category citizens of those States in the European Economic Area (EEA), namely Norway, Iceland, and Liechtenstein, where Treaty obligations between them and the European Community give them identical rights. That much is absolutely clear.
Additionally, it is equally clear, but unreported, that assimilation will now take place through five years’ residence in the EC or the EEA as a whole rather than an individual Member State. Thus a Tunisian, Romanian or Albanian residing in France, Norway or Italy, or even a mixture of them, for five years is now instantly available as an assimilated player in the UK.
The judgment therefore means that the FA, UEFA or any other association can legitimately operate a foreigner rule or even vary the one they have now by cutting the number of foreigners to two, one or even zero; reduce the number of assimilated players to one; or eliminate them altogether. What it cannot escape is operating within the context of the European Community and its associated States with their clear commitment to competition and free movement of people within the Treaties. Doctors and market traders, porn stars and even politicians can seek work freely in any Member State. David Steel stood for 1989 European election in Italy and lost. A French socialist got elected for the Italian communists in the same election. Football players now unsurprisingly have had the fact that they have the same rights confirmed.
The transfer argument is just as clear in its international dimension. A player out of contract is a free agent who can move to play in any other Member State. The European Court fulfilled the letter of the law in merely answering the point put to it of transfrontier movement under Article 48. However, it did not invoke in its judgment, as it might have done, Article 85 of the Treaty relating to competition policy, so it did not make an explicit judgment on the legality of the transfer market within Member States.
The time bomb ticking away at the heart of British football is that all those football club accounts that have put a value on the teams’ players aren’t worth much more than the paper they are printed on. As soon as some waning superstar gets sufficiently disgruntled by his inability to move within the UK to improve his salary or conditions of service then he or, more likely, his agent reaches for his lawyers, resulting in an eighteen months to two-year hiatus before he wins his case.
It may not even be necessary to wait that long. The European Commission is firmly of the view that the artificial rules im-posed by the FA that say you cannot return to the UK for at least twelve months after registering abroad have absolutely no legal validity and are in breach of Article 48 of the EC Treaty. This was demonstrated by the recent statement from the Employment Commissioner Padraig Flynn’s office that the attempt to impose such a regulation by Rugby Union Authorities would be illegal.
So, there is nothing to stop the establishment of a “club of convenience” within the European Community and its associated States – let’s say in Liechtenstein – where out-of-contract players en route from say Everton to Manchester United might bide their time metaphorically for a week or a month in limbo before returning to the playing fields of the Premiership. The Commission takes the view that the maximum delay that could be imposed would be dependent on the player’s previous contract. As many Premiership players on the fringes of the first team squads are on monthly or even weekly contracts, the message seems clear.
The Bosman case raises a whole series of other questions, too. For example, the possibility of individual football clubs being able to move freely, US-style, around the European Union. In view of the recent proposal by Wimbledon that they move to a ground in Dublin, I have asked the European Commission if, in the event of the FA in the UK preventing such a move, would it not be a clear contravention of competition law. I am now awaiting their reply.
From WSC 109 March 1996. What was happening this month