Bosman—There and Back Again: The Legitimacy of Playing Quotas under European Union Sports Policy

• Date: 01 November 2011
• Author: Simon Gardiner,Roger Welch
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00580.x
• Published date: 01 November 2011

eulj_580828..849

Bosman—There and Back Again:

The Legitimacy of Playing Quotas under

European Union Sports Policy

Simon Gardiner and Roger Welch*

Abstract: The 1995 ruling of the European Court of Justice in Bosman was a pivotal

point in the relationship between the European Union and sport. It has had an immense

impact upon professional team sports, most notably football, in terms of liberalising the

transfer system and abolishing player quotas. This paper will chart the development of a

European sports law policy generally and will specifically discuss two current proposals

concerning the reintroduction of playing quotas in football. We will examine the legality

of these proposals with reference to Article 45 of the Treaty on the Functioning of the

European Union and will evaluate the political context within which these proposals have

been promulgated. It will be suggested that a possible solution, which should end legal

uncertainty, could be the adoption of a collective agreement or directive based on the

methodology of reflexive labour law.

I Introduction

At the end of 1995, the European Court of Justice (ECJ) delivered its historic ruling in

the Bosman case.1The two limbs of the Bosman ruling were based on what is now

Article 452of the Treaty on the Functioning of the European Union (TFEU) estab-

lishing the rights of EU nationals to work on a non-discriminatory basis in any

Member State. First, the ECJ ruled that out-of-contract players, who were EU nation-

als, were entitled to negotiate their own contracts with new clubs within the EU without

their current clubs being able to demand a transfer fee before a move to a new club

could take place. In this context, the transfer system constituted an unjustified restric-

tion on rights of freedom of movement. Second, the so-called 3+2 rule then in place

restricting the numbers of foreign players that could be fielded in one match was

declared to be an unlawful constraint on freedom of movement and was contrary

* Simon Gardiner, Reader in Sports Law, Leeds Metropolitan University, City Campus, Leeds, UK, LS1

3HE and Dr Roger Welch, Visiting Research Fellow, University of Portsmouth, University House,

Winston Churchill Avenue, Portsmouth, Hampshire, UK, PO1 2UP.

1Case C-415/93, Union Royale Belge des Societes de Football Association & others v Jean Marc Bosman

[1995] ECR I-4921.

2This was previously Article 39 of the EC Treaty and at the time of the Bosman ruling was Article 48.

European Law Journal, Vol. 17, No. 6, November 2011, pp. 828–849.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

to European discrimination law in so far as players from EU Member States were

treated as foreigners.3

The striking away of protectionist measures as a result of the ruling has had

profound effects on the organisational and contractual dynamics of professional team

sports. The increased mobility of labour generated by the ruling has led to new patterns

of migration on the part of professional sportsmen. However, Bosman has not been

the end of the story. In the years since the ruling, there has been a significant actual

and threatened increase in the legal regulation of professional sport, particularly in

the world of professional football as it operates within the framework of the transfer

system. Overall, there has been a continuing redrawing of the boundary between

regulation through ‘sporting’ rules and external legal regulation.

The main issues of concern are: the validity of transfer systems in their entirety and

the contractual dynamics generated by them, the prohibition of rules that offend EU

discrimination law and the extent to which regulation of professional sports by sporting

authorities should be subordinate to external legal regulation. These are all issues which

have been subject to developments and challenges posed by EU law. Furthermore, over

the last few years, football and other European team sports have sought to reintroduce

measures, which can be perceived to be new forms of protectionist nationality quotas.

In football, the Union of European Football Associations (UEFA), the European

governing body, has introduced the ‘home-grown player rule,’ whereby a certain

number of members of a playing squad need to have been developed by their club or by

another club in the same national association for at least three years between the age of

15 and 21. The Fédération Internationale de Football Association (FIFA), the inter-

national sports federation, has promoted the so-called ‘6+5 rule,’ where a team in each

match would need to field at least six players who are eligible to play for the national

team of the country of the club.4

This paper will seek to evaluate post-Bosman developments in EU law in the context

of these protectionist measures. In particular, we will examine the rationale of the

UEFA rule and FIFA’s proposals both in sporting terms and their legality under EU

Law. Additionally, an evaluation will be made as to whether EU law can provide

solutions, which both recognise the continued specificity of sport and strengthen the

rights of professional sports participants to move to new clubs free from discrimination

and undue restraints on their freedoms of movement and contract. Sport has a strong

historical tradition of self-regulation, which has caused significant tensions between

how and to what extent European professional sport should comply with EU Law. It

will be our contention that a solution could be found by adopting a system of reflexive

law using the method of EU social law as a paradigm.

II European Union and Sport

From the inception of the Common Market in the 1950s to the recent ratification

of the Lisbon Treaty, the profile of sport has risen along with the development of an

3Under the 3+2 rule, teams could only have a maximum of three foreign players in a team plus a maximum

of two foreign players who were classified as assimilated players in that they had been registered in the

relevant national association for at least five years. For more see R. Blanpain and R. Inston, The Bosman

Case: The End of the Transfer System? (Sweet & Maxwell: Peeters, 1996).

4Similar proposals have been mooted in other team sports, ‘FIVB ready to fight EU labor laws on “4+2”

player rule’—International Volleyball 21 May 2008, http://www.fivb.ch.

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© 2011 Blackwell Publishing Ltd.