Bosman Ruling, Brexit and the Impact on Football

There has been much talk recently as to the potential effects of Brexit on football. It is certainly possible that leaving the EU could have consequences for the sport – that the two are interlinked was emphatically confirmed in the seminal 1995 Bosman ruling. This is so well-known that ‘Bosman’ has become synonymous for ‘free transfer’, but the facts and nuances of the case are still relatively obscure to many. Most are entirely unaware of the element of the ruling related to nationality requirements in football. In the light of potential post-Brexit changes, it is worth re-examining Bosman.

The ‘Bosman’ in question is Jean-Marc Bosman. The Belgian midfielder started out at Standard Liège, one of the country’s most successful clubs. He also earned multiple youth caps for the national team. His career stalled, however, and in 1988 he moved to RFC Liège, Standard’s city rivals. At the time, RFC was still in the top flight of Belgian football. Bosman quickly fell out of favour there, and his initial contract was not renewed following just three competitive appearances for the club. When this contract expired, the rules of the Belgian FA and UEFA established that his status changed – he became available for other clubs to sign, albeit with a ‘compulsory transfer fee’ attached to this transaction. This was calculated based on various factors including age, international stature and the appropriate compensation for the training of the player to date.

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Bosman did not attract any offers, and so touted his own services to French second-tier side US Dunkerque. They offered him a contract but the certificate of transfer was not submitted to the French football authorities (FFF) by RFC Liège after Dunkerque failed to pay the transfer fees. Bosman remained affiliated to Liège, but found himself in limbo with his wages cut short by 75%. Various short-term moves followed, but these were hindered by his ongoing uncertain relationship with Liège. Very few clubs would take a risk on him, and indeed Bosman would only ever play fourteen more games of competitive football.

He brought sweeping actions against Liège, the Belgian FA and UEFA in an attempt to challenge the rules that had seriously affected his career. The courts in Belgium held that the claim was admissible, but that since it required assessment of the legality of the transfer rules in light of EU law it must be referred to the European Court of Justice. How did the EU enter the equation? It comes back to the issue of free movement of persons: this is one of the foundational ‘four freedoms’ of the Union, and the rules in place at national and UEFA level had to be examined for compatibility.

Specifically, did the rules on compulsory transfer fees reduce competition between clubs with the result that wages were depressed and club-to-club movements across Europe were restricted? In addition, did UEFA nationality rules requiring a certain number of home-grown players at each club also impede the free movement of footballers? Before the Court of Justice could tackle these issues, it had to rule on whether or not it had jurisdiction to consider the questions referred by the national court. In particular, UEFA questioned why its nationality rules could be challenged when they bore no relation to the predicament of Jean-Marc Bosman himself.

In line with a dubious trend of the Court to interpret the Treaties in a way that affords them the most jurisdiction to hear cases, they ruled that the national court’s decision to refer a question on the nationality rules was enough to give them scope to address those rules. More broadly, they went on to say that the autonomy of sporting organisations such as UEFA did not extend to rules which may impede free movement, and that the questions were duly suitable for consideration. This is significant for both football and EU law.

In the EU context, it is further evidence of the ever-more pervasive interpretation of “economic activity” – this allows the Union to influence spheres well beyond pure economics by virtue of its free movement laws. One such sphere is football: the decision that EU rules may be of relevance despite the predominantly sporting context means that national football federations in Member States must draft their regulations with EU rules in mind.

“It’s a paradox. The Bosman Ruling was born to redistribute the wealth to everyone, especially the poorest players, but now the gain is in the hands of the few. I still think that the decision of the Court of Justice was right. It was a positive law but it’s now been distorted. Unfortunately, football is not healthy now.” -Jean-Marc Bosman, Gazzetta dello Sport

This brings us to the substantive issues considered by the Court. Having held that they could assess the UEFA rules in question, they went on to do so. The rule providing for a compulsory transfer fee upon the expiry of a contract was held to be a barrier to free movement of persons; although the rule limited movement between clubs per se, this included movement between clubs in different Member States of the EU and therefore hindered the free movement guaranteed by the Treaty.

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Nor could it be justified – although the Court accepted the legitimacy of UEFA’s purposes for imposing the rule, namely the desire to encourage clubs to invest in searching for and nurturing young talent, this was not strong enough to justify an incursion on free movement, and the goal could in any event be achieved in ways which did not impede free movement in this manner. Thus, on the expiry of a player’s contract, the Court held that he must be free to move to any other European club without that club becoming liable to pay his old employer: the Bosman ruling was born.

The Court also considered national and UEFA rules governing maximum numbers of foreign players allowed in teams – this is often disregarded when the Bosman ruling is discussed, but it was similarly important. Again, that such rules can pose a restriction is obvious; a club in France will be less likely to make a move for a Belgian player if they are only allowed to field two non-French players in any given line-up. UEFA tried to run a justification defence once more, arguing that for wholly sporting reasons the safeguarding of a national core to team squads was valid. Somewhat predictably, the Court rejected UEFA’s arguments again – clubs must be free to sign and field any number of players of any EU nationality.

This provides one of the most interesting areas for potential changes post-Brexit. UEFA is of course distinct from the EU, so the FA will retain membership after withdrawal from the Union – continued membership in a European body still subject to EU rules will inevitably limit the scope for change following withdrawal. In particular, the Bosman rule in respect of free transfers is likely to survive in the UK to the extent that clubs will still be unable to demand a transfer fee for a move that takes place following the expiry of a player’s contract.

However, some variation is very likely – the UK government has insisted that free movement will end, and this means that there simply cannot be frictionless movement of footballers from across Europe anymore. Any eventual ‘points system’ of immigration may be generous to footballers, but it seems implausible that it will erect no barriers whatsoever to the signing of European talent. This is merely a microcosm of the potentially disastrous broader consequences of the end to free movement.

On the flip side, the FA will now have more control over rules governing quotas of national players: in theory, at least, it could become a lot more protectionist of England’s top talent. This is the case despite continued UEFA membership – while the Bosman ruling continues to prevent UEFA from imposing centralised nationality requirements, there is nothing in the UEFA rules that prevents non-EU members from putting such restrictions in place. UEFA itself argued in Bosman that nationality rules “help to maintain a competitive balance between clubs by preventing the richest clubs from appropriating the services of the best players”.

“Once the European Court of Justice ruled that clubs no longer had to pay transfer fees after the expiration of a player’s contract, all hell broke loose. Suddenly it was a free-for-all.” -Sir Alex Ferguson, 2015

It now seems ironic indeed that UEFA tried to run an argument based on prevention of domination by the super-rich clubs: a cynicism born of impotent FFP sanctions suggests that UEFA are not overly concerned about competitive balance as long as some of the money finds its way back to them. Nonetheless, it is an interesting idea that nationality requirements could level the playing field domestically – it is now at least an option which the FA can consider as an alternative way of combating the emergence of the super-club.

However, this would probably be a bad idea on balance: there would be nothing to stop Manchester City scooping up all of the best English talent, for example, and in any case it is unlikely that the FA would countenance a rule that would severely handicap English teams in the Champions League and Europa League. The same is equally true of any kind of rule or restriction that the FA or even the legislature may think up to try and provide a national answer to FFP, one which is more effective in combatting inequalities and potentially creating a redistributive effect to grassroots football.

Even though the shackles are off to do this to a certain extent once the UK officially exits the EU, there will simply not be an appetite to do anything which will place UK-based teams at a disadvantage in European competition.

This friction between the theoretical possibility for potentially beneficial radical change and the practical denial of such a possibility by way of the dire consequences of being out of step with the whole of Europe is something which must be grappled with across the entire social and political spectrum of Brexit-related issues, not just in football. The possibility of nationalising assets that should properly be public services, for example, is limited by the EU – any halfway house agreement is likely to retain such restrictions, thus essentially discarding the benefits of membership but keeping the rules that are detrimental to positive social change.

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This is just one instance of many where the UK is essentially gearing up for the worst of both worlds, accepting neoliberal constraints on policy but eschewing benefits such as free travel and subsidies. There are of course nuances and considerations that go way beyond the remit of the author, but perhaps Bosman and its potential status post-Brexit can teach a wider lesson.

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