Paper Presentation I:
The Market and the Law
Thursday, April 8, 15.15–17.15

Marie Kronberg
Germany

The infamous Bosman ruling by the European Court of Justice (ECJ) in December 1995 has been considered the turning point both of the organization of European football as also of the implementation of a so-called European Sports Law Policy.

In this ruling, the ECJ confirmed the applicability of Community law to sports and the horizontal effect of the fundamental freedoms. It declared foreigner clauses and transfer fee practices to be incompatible with the free movement of workers. Foreigner clauses were therefore to be applied to EU citizens, and citizens of other states given the same rights through international treaties, as if they were nationals.

Looking back nearly 15 years later, Bosman has however not been the end of European football. Nationality changes in order to circumvent foreigner clauses have gone back, fans identify with their team’s foreign top players, European national teams are still excelling on global level, and there is much more money to be made in the football business than ever before.

However, FIFA is planning to introduce the so called “6+5-rule” which stipulates a minimum number of national players to field per team and match. This rule has identical effects as the one challenged in Bosman and is therefore equally incompatible with EC law. UEFA has gone a different way with its “Homegrown Players Rule” which demands a minimum number of young players fielded who have been trained within the same club or federation, with no nationality related discrimination. Justified as an incentive to develop young talent, the “Homegrown Players Rule” does not violate European free movement rights.

There is no denying that (European) football has become business. And as such, it will have to be treated as such. The danger for football’s future does not lie in the application of business law rules to the sports business, but in the on-going commercialization of sports which has led to create legal questions. The European Union and the ECJ have shown more sensibility on this subject than publicly perceived, and published several documents, such as the White Paper on Sports, to address these matters. In addition, a sports article has been introduced into the Lisbon Treaty.

As long as commercialization does not take over sporting ideals, football still has a bright future in the European Union. Let’s make the most of it.