Article 45 of the Treaty of Functioning of the European Union (TFEU) establishes that “Freedom of movement for workers shall be secured within the Union. 26.10.2012 Official EN Journal of the European Union C 326/65 2. Such Freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment”.
This landmark case, relative to the free movement of workers and the transfers of professional footballers, helped create a single football market and meant that the sports sector was affected and regulated by the Treaties of the European Communities.
The European Court of Justice (ECJ) ruled in this judgment that footballers have the right to a free transfer at the expiration of their contracts, as long as they are transferred between different clubs within EU associations. Furthermore, it considered that transfer fee was incompatible with the right of free movement of persons guaranteed under Article 48 EEC Treaty (now Article 45 TFEU) and that restrictions on foreign players could not be applied in a way that constituted discrimination on the grounds of nationality between citizens of EU member states.
This historical judgment prohibited foreign EU players within national leagues and allowed players in the EU to move to another club at the end of a contract without a transfer fee being paid.
The Cour d’Appel (Appeal Court), Liège, referred to the ECJ for a preliminary ruling a set of questions on the interpretation of Articles 48, 85 and 86 of the EEC Treaty, to rule in the main proceedings, where Mr Bosman, a professional footballer of Belgian nationality, that was employed from 1988 by RC Liège brought an action against RC Liège, as well as against the Belgian Football Association and UEFA, for understanding that his Freedom of the contract was hampered, that the transfer rules and nationality clauses did not apply to him and for suffering the loss of profit due to the regulations relating to transfers.
Mr Bosman refused to sign a new contract for RC Liège and was put on the transfer list. Since no club showed an interest in a compulsory transfer, Mr Bosman made contact with US Dunkerque. On 27 July 1990, a contract was concluded between RC Liège and US Dunkerque for the temporary transfer of Mr Bosman for one year, against payment by US Dunkerque to RC Liège of a compensation fee of BFR 1 200 000 payable on receipt by the Fédération Française de Football (“FFF”) of the transfer certificate issued by URBSFA. The contract gave US Dunkerque an irrevocable option for the complete transfer of the player for BFR 4 800 000. However, both contracts were subject to the suspensive condition that the transfer certificate must be sent by URBSFA to FFF in time for the first match of the season, which was to be held on 2 August 1990.
RC Liège, which had doubts about US Dunkerque’s solvency, did not ask URBSFA to send the said certificate to FFF. As a result, neither contract took effect.
On 31 July 1990, RC Liège also suspended Mr Bosman, preventing him from playing for the entire season.
The exact questions referred to the Court of Justice in the preliminary ruling were if Articles 48, 85 and 86 of the EEC Treaty should be interpreted as prohibiting a football club from requiring and receiving payment of a sum of money upon the engagement of one of its players who has come to the end of his contract by a new employing club and as prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize.
The ECJ in response held that Article 48 of the EEC Treaty precludes the application of rules laid down by sporting associations, under which a professional footballer who is a national of one Member State may not, on the expiry of his contract with a club, be employed by a club of another Member State unless the latter club has paid to the former club a transfer, training or development fee. It also opposes the application of rules laid down by sporting associations under which, in matches in competitions they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.
Therefore, the CJEU considered transfer compensation and foreigner quotas illegal when applied to citizens of the European Union.
Click here to read the whole case summary
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