Inherit the Wind: A Comment on the Bosman Jurisprudence

The Bosman jurisprudence has marked a sea-change in the organisation of professional football in Europe: the Court opened the door to free movement of players, liberating them from constraints such as nationality clauses and the transfer fees that had to be agreed across clubs even for players at the end of their contract. Importantly, by confirming prior case law, it established the Court’s attitude to subject aspects of professional football to the authority of EC law. Bosman was not part and parcel of a wider EC strategy on this score: it is not the role of the Court to do that, and the Commission, on its own admission, was not after a common football market. Bosman does not discuss the application of EC competition law on football, it limits itself to a discussion of the free movement of labour. What followed it, nevertheless, has been an ongoing attempt to subject an ever-increasing part of football-related activities to a body of law (EC law) which was simply not designed to deal in extensor with such issues. The culmination point is last year’s Meca-Medina judgment. This Chapter aims at addressing Bosman in this context.We raise two issues: first, to what extent one can legitimately trace back to Bosman the ever-changing ratio between sporting and economic aspects of football (the latter, only, being accountable under EC law); second, to what extent the Court, in the absence of clarification of the ratio described above by the law-making EC organs, is well positioned to take the lead on such issues. Our response is, unsurprisingly maybe, that clarification of the ratio through a law-making exercise becomes all the more important, if not urgent, in today’s post-Bosman world.