bernard v. bosman

Bernard v. Bosman Bernard v. Bosman

Michele ColucciMichele Colucci

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Bosman versus BernardBosman versus BernardSport in so far as economic Sport in so far as economic activityactivity

Free movement of workersFree movement of workers

Restrictions regardless of Restrictions regardless of nationalitynationality

Professional to professionalProfessional to professional

End of (prof.) contractEnd of (prof.) contract

Sport in so far as economic Sport in so far as economic activityactivity

Free movement of workersFree movement of workers

Restrictions regardless of Restrictions regardless of nationalitynationality

Amateur to professionalAmateur to professional

End of (amateur) End of (amateur) contract/trainingcontract/training

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Bosman versus BernardBosman versus Bernard

Transfer feeTransfer fee

To be paid by new To be paid by new clubclub

Limitation of free movementLimitation of free movement

Justification possibleJustification possible

But violationBut violation

ALTERNATIVE MEASURESALTERNATIVE MEASURES

NO TRANSFER FEE BUT NO TRANSFER FEE BUT Openings for training Openings for training compensationcompensation

DamagesDamages

To be paid by To be paid by playerplayer

Limitation of free movementLimitation of free movement

Justification possibleJustification possible

ProportionateProportionate

But violationBut violation

Openings for training Openings for training compensationcompensation

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““106. In view of the 106. In view of the considerable considerable social importancesocial importance of sporting activities and in of sporting activities and in particular football in the particular football in the Community, the aims of Community, the aims of maintaining a balance between maintaining a balance between clubs by preserving a certain clubs by preserving a certain degree of equality and degree of equality and uncertainty as to results and of uncertainty as to results and of encouraging the recruitment and encouraging the recruitment and training of young players must training of young players must be accepted as legitimatebe accepted as legitimate..

““39. In regard to professional 39. In regard to professional sport, the Court has already had sport, the Court has already had occasion to hold that, in view of occasion to hold that, in view of the considerable the considerable social social importanceimportance of sporting activities of sporting activities and in particular football in the and in particular football in the European Union, the objective of European Union, the objective of encouraging the recruitment and encouraging the recruitment and training of young players must training of young players must be accepted as legitimatebe accepted as legitimate (see (see BosmanBosman, paragraph 106).”, paragraph 106).”

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““108. As regards the second 108. As regards the second aim, it must be accepted that aim, it must be accepted that the the prospect of receivingprospect of receiving transfer, transfer, development ordevelopment or training fees is training fees is indeed likely to encourage indeed likely to encourage football clubsfootball clubs to seek new talent to seek new talent and train young players.”and train young players.”

““41. In that regard, it must be 41. In that regard, it must be accepted that, as the Court has accepted that, as the Court has already held, already held, the prospect of the prospect of receiving training fees is likely to receiving training fees is likely to encourage football clubsencourage football clubs to seek to seek new talent and train young new talent and train young players (see players (see BosmanBosman, , paragraph 108).”paragraph 108).”

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““108. As regards the second 108. As regards the second aim, it must be accepted that aim, it must be accepted that the the prospect of receivingprospect of receiving transfer, transfer, development ordevelopment or training fees is training fees is indeed likely to encourage indeed likely to encourage football clubsfootball clubs to seek new talent to seek new talent and train young players.”and train young players.”

““41. In that regard, it must be 41. In that regard, it must be accepted that, as the Court has accepted that, as the Court has already held, already held, the prospect of the prospect of receiving training fees is likely to receiving training fees is likely to encourage football clubsencourage football clubs to seek to seek new talent and train young new talent and train young players (see players (see BosmanBosman, , paragraph 108).”paragraph 108).”

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Bosman versus BernardBosman versus Bernard““109. However, because it is 109. However, because it is impossible to predict the impossible to predict the sporting future of young players sporting future of young players with any certainty and because with any certainty and because only a limited number of such only a limited number of such players go on to play players go on to play professionally, professionally, those fees are by those fees are by nature contingent and uncertain nature contingent and uncertain and are in any event unrelated and are in any event unrelated to the actual costto the actual cost borne by clubs borne by clubs of training both future of training both future professional players and those professional players and those who will never play who will never play professionally.”professionally.”

““42. The returns on the 42. The returns on the investments in training made by investments in training made by the clubs providing it the clubs providing it are are uncertain by their very natureuncertain by their very nature since the clubs bear the since the clubs bear the expenditure incurred in respect expenditure incurred in respect of all the young players they of all the young players they recruit and train, sometimes over recruit and train, sometimes over several years, whereas only several years, whereas only some of those players undertake some of those players undertake a professional career at the end a professional career at the end of their training, whether with the of their training, whether with the club which provided the training club which provided the training or another club (see, to that or another club (see, to that effect, effect, BosmanBosman, paragraph 109).”, paragraph 109).”

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109. “The 109. “The prospect of receiving prospect of receiving such fees cannotsuch fees cannot, therefore, be , therefore, be either a decisive factor in either a decisive factor in encouraging recruitment and encouraging recruitment and training of young players or an training of young players or an adequate means of financing adequate means of financing such activities, particularly in the such activities, particularly in the case of smaller clubs.”case of smaller clubs.”

44. (…), the 44. (…), the clubs which provided clubs which provided the training could be discouragedthe training could be discouraged from investing in the training of from investing in the training of young players if they could not young players if they could not obtain reimbursement of the obtain reimbursement of the amounts spent for that purpose amounts spent for that purpose where, at the end of his training, a where, at the end of his training, a player enters into a professional player enters into a professional contract with another club. In contract with another club. In particular, that would be the case particular, that would be the case with small clubs providing training, with small clubs providing training, whose investments at local level in whose investments at local level in the recruitment and training of the recruitment and training of young players are of considerable young players are of considerable importance for the social and importance for the social and educational function of sport.educational function of sport.

TRAINING COMPENSATION?TRAINING COMPENSATION?

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AG in BernardAG in Bernard

52. First, since only a minority of trainee players will prove 52. First, since only a minority of trainee players will prove to have any subsequent market value in professional to have any subsequent market value in professional football, whereas a significantly greater number must be football, whereas a significantly greater number must be trained in order for that minority to be revealed, trained in order for that minority to be revealed, investment in training would be discouraged if only the investment in training would be discouraged if only the cost of training the individual player were taken into cost of training the individual player were taken into accountaccount when determining the appropriate compensation. when determining the appropriate compensation. It is therefore appropriate for a club employing a player It is therefore appropriate for a club employing a player who has been trained by another club to pay who has been trained by another club to pay compensation which represents a compensation which represents a relevant proportionrelevant proportion of of that other club’s overall training costs.that other club’s overall training costs.

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AG in BosmanAG in Bosman

““237. The transfer fees cannot be regarded as 237. The transfer fees cannot be regarded as compensation for possible costs of training, if only for the compensation for possible costs of training, if only for the simple reason that their amount is simple reason that their amount is linked not to those linked not to those costs but to the player's earningscosts but to the player's earnings.”.”

(…)(…)

““Any reasonable club will certainly provide its players with Any reasonable club will certainly provide its players with all the development necessary. But that is expenditure all the development necessary. But that is expenditure which is in which is in the club's own interestthe club's own interest and which the player and which the player recompenses with his performance. It is not evident why recompenses with his performance. It is not evident why such a club should be entitled to claim a transfer fee on such a club should be entitled to claim a transfer fee on that basis.”that basis.”

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AG in BosmanAG in Bosman

““239. That does 239. That does not meannot mean, however, that a , however, that a demand for a transfer fee for a player demand for a transfer fee for a player would, following the view I have put would, following the view I have put forward, have to be regarded as forward, have to be regarded as unlawful in unlawful in every caseevery case.” .”

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AG in BosmanAG in BosmanSuch rules would in my opinion have to comply with: Such rules would in my opinion have to comply with:

– First, the transfer fee would actually have First, the transfer fee would actually have to be limited to the amount to be limited to the amount expended by the previous clubexpended by the previous club (or previous clubs) for the player's training. (or previous clubs) for the player's training.

– Second, a transfer fee would come into question Second, a transfer fee would come into question onlyonly in the case of in the case of a first a first change of clubschange of clubs where the previous club had trained the player. where the previous club had trained the player.

– Analogous to the transfer rules in force in France, that transfer fee would Analogous to the transfer rules in force in France, that transfer fee would in addition have in addition have to be reduced proportionately for every year the player to be reduced proportionately for every year the player had spent with that club after being trainedhad spent with that club after being trained, since during that period the , since during that period the training club will have had an opportunity to benefit from its investment in training club will have had an opportunity to benefit from its investment in the player. the player.

– Moreover, it is not certain that even such a system of transfer rules could Moreover, it is not certain that even such a system of transfer rules could not also be countered by Mr Bosman's argument that the objectives not also be countered by Mr Bosman's argument that the objectives pursued by it could also be attained by a system of redistribution of a pursued by it could also be attained by a system of redistribution of a proportion of income.proportion of income.

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SummarySummary

Training compensation can be adequate (ECJ Bernard)Training compensation can be adequate (ECJ Bernard)Compensation of real training costs (ECJ Bernard)Compensation of real training costs (ECJ Bernard)Criteria determined in advance (ECJ Bernard)Criteria determined in advance (ECJ Bernard)Paid by player / club (AG Bernard)Paid by player / club (AG Bernard)Relevant proportion of overall training cost (AG and ECJ Relevant proportion of overall training cost (AG and ECJ Bernard)Bernard)Pro rata for training clubs (AG Bernard)Pro rata for training clubs (AG Bernard)Development is also in interest clubs (AG Bosman)Development is also in interest clubs (AG Bosman)Only in case of first change / reduced in time (AG Only in case of first change / reduced in time (AG Bosman)Bosman)Not make free movement impossible (proportionality) Not make free movement impossible (proportionality) (Bosman, Bernard)(Bosman, Bernard)

bernard v. bosman

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