Player Mobility Restraints Within the European Football Industry

Abstract: For the past fifteen years, ever since the Court of Justice’s ruling in its landmark case Bosman, the sporting rules governing player mobility have been a hot topic. The ruling prohibited transfer fees for players out-of-contract thus putting an end to the restrictive transfer system hindering the free movement of football players. The Court also abolished the nationality restriction where clubs were prohibited from fielding more than three foreigners in club competitions arranged by UEFA. However, the Court took into account the specificity of sport and considered encouraging recruitment and training of young players and maintaining a competitive balance between clubs as objectives capable of justification. After a long struggle of the EU institutions to get the football governing bodies to adapt to the Bosman ruling, FIFA finally adopted the 2005 FIFA regulations on the Status and Transfer of Players allowing for training compensation related to the actual cost of training a player up to the age of 23. Even though the regulations appear more lenient, they still contain restrictive measures such as the requirement of training compensation, the solidarity mechanism, transfer windows and the contractual stability rules, all capable of hindering the players’ right to free movement. The contractual stability rules are of particular concern as they provide the clubs with different tools to discourage or hinder a player from moving to another club if he desires to do so. There appears to be a problem of proportionality when it comes to the sanction imposed on the player and the compensation to be paid to his former club in case of unilateral breach of contract. It is seriously questionable whether those rules would survive a challenge before the Court as they would have to be justified on grounds of public interest. With the entry into force of the Lisbon Treaty in December 2009, for the first time a special article on sport explicitly recognizing the “specific nature of sport” was inserted. Article 165 TFEU now provides the Commission with soft competence and the sports governing bodies with a supervised autonomy when dealing with sports governance. One can detect a new approach by the Court in its recent ruling in Bernard, a much feared case by the sports governing bodies because of its resemblance to Bosman. The Court implicitly gave its blessing to the FIFA Regulations providing rights to training compensation while taking into account the uniqueness of sport. When FIFA has intentions to enforce the so called 6+5 rule requiring clubs to field at least six club-trained players, the relationship between the EU institutions and the sports governing bodies and the approach towards players’ free movement contra the specificity of sport will be put to the test. The future challenge is to find a fair balance between the players’ rights to free movement and the specific nature of sport when dealing with disputes concerning player mobility where the assessments by the Court of Justice in collaboration with the Court of Arbitration for Sport will have a decisive role.