The Legacy of Bosman: Revisiting the Relationship Between EU Law and Sport (ASSER International Sports Law Series)

In December 1995, the Court of Justice of the European Union delivered its judgment in its most famous case to date: the Bosman case. Twenty years later, this book explores in detail how this landmark judgment legally and politically transformed the relationship between the European Union and sport. Written by leading academics in the field, the ten contributions in this book reflect on how Bosman fundamentally shaped the application of EU law to sport and its transformative effects on sports governance. The book’s innovative perspectives on the Bosman ruling makes it important reading for scholars, practitioners and policy-makers concerned with EU law and Sports law. With a foreword by Prof. Dr. Carl Otto Lenz, Advocate General at the Court of Justice in the Bosman-case. Dr. Antoine Duval is Senior Researcher for International and European Sports Law at the T.M.C. Asser Instituut in The Hague. He holds a Ph.D. on the interaction between Lex Sportiva and EU Law from the European University Institute in Florence, where he was the conveyor of the Transnational Law Working Group. Prof. dr. Ben Van Rompuy is a senior researcher at the T.M.C. Asser Instituut, where he heads the ASSER International Sports Law Centre, and is Visiting Professor of Competition Policy at the Free University of Brussels (VUB). He holds a Ph.D. in law from the VUB and held visiting scholar positions at Georgetown University and New York University. The book appears in the ASSER International Sports Law Series, under the editorship of Prof. Dr. Ben Van Rompuy, Dr. Antoine Duval and Marco van der Harst LL.M. Series Information 6 Foreword 7 Contents 10 Editors and Contributors 11 Abbreviations 14 1 Introduction 16 Abstract 16 1.1 Re-reading Bosman: From Deregulation to Democratization 19 1.1.1 The Deregulatory Myth 19 1.1.2 The ‘Counter-Democratic’ Function of Bosman 21 1.2 The Structure of This Book 24 References 27 2 He Was not Alone: Bosman in Context 28 Abstract 28 2.1 Introduction 29 2.2 The Transfer System and Nationality Quotas: A Governance Problem 30 2.2.1 The Transfer System 30 2.2.2 Nationality Quotas 33 2.2.3 Low Political Visibility 35 2.3 Football, from Entertainment to Industry 35 2.3.1 ‘Post-modern’ Football 37 2.3.2 From European Cup to Champions League: The Arrival of ‘Sportainment’ 38 2.4 The Political Context and the Ability of Luc Misson 40 2.4.1 Increased Hostility in Brussels 40 2.4.2 The Importance of the Legal Team Behind Jean-Marc Bosman 42 2.5 Conclusion 43 References 44 3 Bosman: A Legacy Beyond Sports 46 Abstract 46 3.1 Introduction 47 3.2 Measuring Bosman’s Importance—An Exceptional Case 48 3.2.1 The Starting Point—A Fickle Court 48 3.2.2 Indegree Centrality 49 3.2.3 Casting a Wider Net—PageRank and Betweenness Centrality 50 3.3 The Many Sides of Bosman 53 3.3.1 Introduction 53 3.3.2 The Relationship Between the CJEU and National Courts 54 3.3.3 Fundamental Freedoms and Private Entities 55 3.3.4 Obstacles and Justifications 57 3.3.5 Temporal Effects of CJEU Judgments 58 3.3.6 Summary and Conclusions 58 3.4 Explaining the Importance of Bosman—New Law or Good Law? 59 3.4.1 Introduction 59 3.4.2 Placing Bosman in the Context of CJEU Case Law 59 3.4.3 The Building Blocks of Bosman 61 3.4.4 Bosman as Good Law 62 References 63 4 Nationality Based Playing Quotas and the International Transfer System Post-Bosman 65 Abstract 65 4.1 Introduction 66 4.2 The FIFA International Transfer Rules and Freedom of Movement 68 4.3 The FIFA Rules in Practice 70 4.4 Nationality Quotas and Bosman 72 4.5 Nationality Quotas Post-Bosman 75 4.6 Why Are Quotas Back on the Agenda? 77 4.7 FIFA 6 + 5 Rule 79 4.8 Home-Grown Player Rule 84 4.9 Alternative Sporting Measures 87 4.10 Similar Rules in Other Sports 90 4.11 The Regulatory Future 91 4.12 Conclusions 93 References 94 5 The FIFA Regulations on the Status and Transfer of Players: Transnational Law-Making in the Shadow of Bosman 95 Abstract 95 5.1 Introduction 96 5.2 The Impact of Bosman on the Transfer System 99 5.2.1 The Transfer System in the Bosman Ruling 99 5.2.2 The Transfer System in the AG’s Opinion 101 5.3 Transnational Law-Making in the Shadow of EU Competition Law: The 2001 Agreement Between UEFA, FIFA and the Commission 103 5.3.1 The Commission’s Crusade Against FIFA’s RSTP 103 5.3.2 Legislating in the Shadow of EU Competition Law: Towards the 2001 Agreement 105 5.3.3 The Negotiation 106 5.3.4 The Agreement 108 5.4 The FIFA RSTP’s Successful Autonomous Afterlife 111 5.4.1 The Autonomous Judicial System 112 5.4.2 The Autonomous Normative System 116 5.4.3 The Autonomous Enforcement System 120 5.5 Conclusion: The Long Shadow of Bosman and the Future of the FIFA RSTP 124 References 127 6 EU Competition Law and Organisational Rules 131 Abstract 131 6.1 Introduction 132 6.2 Sporting Rules in Internal Market Jurisprudence 134 6.2.1 Purely Sporting Rules: Walrave [1974] and Donà [1976] 134 6.2.2 Objectively Justified Rules: Bosman [1995], Lehtonen [2000], and Bernard [2010] 135 6.2.3 Inherent Rules: Deliège [2000] 138 6.2.4 Final Remarks 140 6.3 Applicability of Articles 101 and 102 TFEU in the Sporting Sector 140 6.4 Exceptions Under Articles 101 and 102 TFEU 143 6.4.1 Economic Efficiency Defence Under Articles 101(3) and 102 TFEU 143 6.4.2 Regulatory Ancillarity 145 6.5 Commission Investigation in FIA [2001] and Court’s Decision in MOTOE [2008] 148 6.6 Commission Decisions in Mouscron [1999] and ENIC [2002] 153 6.7 Meca-Medina [2006]: The Ultimate Test for Regulatory Rules in Sport 154 6.7.1 Factual Background 154 6.7.2 Judgment of the Court: Scope of the Treaty 155 6.7.3 Judgment of the Court: The Test 158 6.7.4 Final Remarks 159 6.8 Annex I Framework for Analysis of Organisational Rules in Sport 159 6.8.1 General Structure 159 6.8.2 Organisational Rules not Likely to Infringe Articles 101 and 102 TFEU 160 6.8.3 Organisational Rules that May Infringe Articles 101 and 102 TFEU 162 6.8.4 Comment 164 References 165 7 EU Control of State Aid to Professional Sport: Why Now? 166 Abstract 166 7.1 Introduction 167 7.2 EU State Aid Policy-Making 169 7.2.1 The Treaty State Aid Rules 170 7.2.2 The Development of the State Aid Regime and Compliance 171 7.2.2.1 Towards a Rule-Based System 172 7.2.2.2 From Mature Soft Law to Hard Law 173 7.2.3 The Articulation of Sector-Specific Rules: The Example of the Film and Audiovisual Sector 174 7.3 State Aid to Sports Infrastructure 178 7.3.1 Phase 1: Football Stadiums as ‘Public Service’ Infrastructures 179 7.3.2 Phase 2: Commission Decisional Practice After LeipzigHalle 181 7.4 State Aid to Professional Football Clubs 185 7.4.1 Before 2013: Implicit Tolerance of Non-compliance with the Notification Obligation 186 7.4.2 The 2013 Formal Investigations 189 7.4.2.1 The 2012 Information-Gathering Exercise 189 7.4.2.2 Case Law on the Handling of Complaints 191 7.4.2.3 The European Ombudsman 194 7.5 Conclusions 196 References 197 8 The European Social Dialogue: A New Mode of Governance for European Football? 199 Abstract 199 8.1 Introduction 200 8.2 Labour Disputes in Sport: Application of EU Law 201 8.3 The European Social Dialogue 203 8.4 The Road to Social Dialogue in European Professional Football 205 8.5 The Social Dialogue Committee for European Professional Football 209 8.6 Social Dialogue as a Forum for Reforming the Football Regulations 213 8.6.1 Contract Stability 214 8.6.2 Training Compensation 215 8.6.3 Other Potential Topics 217 8.7 Conclusions and Assessment 218 References 222 9 Governing in the Shadow of Bosman: A Principal-Agent Perspective on Sports Governance and the EU 224 Abstract 224 9.1 Introduction 225 9.2 The Principal-Agent Framework 227 9.3 The Commission and the CJEU as Principals for SGBs 228 9.3.1 Conflicting Preferences 229 9.3.2 Information Asymmetries 229 9.4 The EU’s Options for Controlling SGBs 230 9.4.1 The EU Law Route 230 9.4.1.1 Sanctioning 231 9.4.1.2 Monitoring 231 9.4.1.3 Steering 232 9.4.2 The EU Sports Policy Route 232 9.4.2.1 Sanctioning 233 9.4.2.2 Monitoring 233 9.4.2.3 Steering 233 9.5 The Shadow of Bosman 234 9.5.1 Market Size and Relevance 235 9.5.2 Regulatory Capacity 236 9.5.3 Internal Cohesiveness 237 9.6 Decreasing the Shadow of Bosman 238 9.6.1 Manipulating the Preferences of the Commission, the Parliament and the Member States 239 9.6.2 Influencing the Preferences of Stakeholders 240 9.7 Conclusions 241 References 242 10 The Lex Sportiva and EU Law: The Academic Lawyer’s Path Before and After Bosman 244 Abstract 244 10.1 Introduction 245 10.2 Before Bosman: The Case(S) for Sporting Autonomy 245 10.3 The Quiet Life of the Academic Sports Lawyer Before Bosman 247 10.4 Bosman Changed Everything! (Well, Almost) 255 10.5 Beyond Bosman 259 References 260 In December 1995, The Court Of Justice Of The European Union Delivered Its Judgment In Its Most Famous Case To Date: The Bosman Case. Twenty Years Later, This Book Explores In Detail How This Landmark Judgment Legally And Politically Transformed The Relationship Between The European Union And Sport. Written By Leading Academics In The Field, The Ten Contributions In This Book Reflect On How Bosman Fundamentally Shaped The Application Of Eu Law To Sport And Its Transformative Effects On Sports Governance. The Book's Innovative Perspectives On The Bosman Ruling Makes It Important Reading For Scholars, Practitioners And Policy-makers Concerned With Eu Law And Sports Law -- Page 4 Of Cover. Introduction / Antoine Duval And Ben Van Rompuy -- He Was Not Alone : Bosman In Context / Borja García -- Bosman : A Legacy Beyond Sports / Mattias Derlén And Johan Lindholm -- Nationality Based Playing Quotas And The International Transfer System Post-bosman / Simon Gardiner And Roger Welch -- The Fifa Regulations On The Status And Transfer Of Players : Transnational Law-making In The Shadow Of Bosman / Antoine Duval -- Eu Competition Law And Organisational Rules / Katarina Pijetlovic -- Eu Control Of State Aid To Professional Sport : Why Now? / Ben Van Rompuy And Oskar Van Maren -- The European Social Dialogue : A New Mode Of Governance For European Football? / Richard Parrish -- Governing In The Shadows Of Bosman : A Principal-agent Perspective On Sports Governance And The Eu / Arnout Geeraert -- The Lex Sportiva And Eu Law : The Academic Lawyer's Path Before And After Bosman / Stephen Weatherill. Antoine Duval, Ben Van Rompuy (editors). Includes Bibliographical References. In December 1995, the Court of Justice of the European Union delivered its judgment in its most famous case to date: the Bosman case. Twenty years later, this book explores in detail how this landmark judgment legally and politically transformed the relationship between the European Union and sport. Written by leading academics in the field, the ten contributions in this book reflect on how Bosman fundamentally shaped the application of EU law to sport and its transformative effects on sports governance. The book's innovative perspectives on the Bosman ruling makes it important reading for scholars, practitioners and policy-makers concerned with EU law and Sports law. With a foreword by Prof. Dr. Carl Otto Lenz, Advocate General at the Court of Justice in the Bosman-case. Dr. Antoine Duval is Senior Researcher for International and European Sports Law at the T.M.C. Asser Instituut in The Hague. He holds a Ph. D. on the interaction between Lex Sportiva and EU Law from the European University Institute in Florence, where he was the conveyor of the Transnational Law Working Group. Prof. dr. Ben Van Rompuy is a senior researcher at the T.M.C. Asser Instituut, where he heads the ASSER International Sports Law Centre, and is Visiting Professor of Competition Policy at the Free University of Brussels (VUB). He holds a Ph. D. in law from the VUB and held visiting scholar positions at Georgetown University and New York University. The book appears in the ASSER International Sports Law Series, under the editorship of Prof. Dr. Ben Van Rompuy, Dr. Antoine Duval and Marco van der Harst LL. M Front Matter....Pages i-xviii Introduction....Pages 1-12 He Was not Alone: Bosman in Context....Pages 13-30 Bosman: A Legacy Beyond Sports....Pages 31-49 Nationality Based Playing Quotas and the International Transfer System Post-Bosman....Pages 51-80 The FIFA Regulations on the Status and Transfer of Players: Transnational Law-Making in the Shadow of Bosman....Pages 81-116 EU Competition Law and Organisational Rules....Pages 117-151 EU Control of State Aid to Professional Sport: Why Now?....Pages 153-185 The European Social Dialogue: A New Mode of Governance for European Football?....Pages 187-211 Governing in the Shadow of Bosman: A Principal-Agent Perspective on Sports Governance and the EU....Pages 213-232 The Lex Sportiva and EU Law: The Academic Lawyer’s Path Before and After Bosman ....Pages 233-250