May

08

The Bosman case and its implication

with European Citizenship
Mario Chaparro
The last fifteen years have represented a substantial change in the European football’s transfer
market. The expansion of the new markets, merchandising, television rights and revenues have
caused an increase in the number of transfers within the world and the constant migrations from
players from all Europe to the most important European leagues. The main reason that accelerated
change was the resolution of the Bosman case. This resolution was not only important in terms of
the football industry but is also interesting in terms of a spill – over process of the European
citizenship because what was granted as economic rights expanded to other fields like the social.
The concept of citizenship goes far away from a legal construction because it is imbued with an
ideological value that must be explained by what they mean in social contexts as an ideological
construction is where the cultural aspects can play an important role and more football, because it
is not a cultural expression but also as an economical activity. The Bosman case reflected not only
an achievement in the sport grounds but is also a part of the integration needed to create a more
solid concept of European citizenship.

European Citizenship
Institute d’Etudes Politiques du Paris
The last fifteen years have represented a substantial change in the European
football’s transfer market. The expansion of the new markets, merchandising,
television rights and revenues have caused an increase in the number of transfers
within the world and the constant migrations from players from all Europe to the
most important European leagues. The main reason that accelerated change was the
resolution of the Bosman case. It was a legal decision held in 1995 made by the
European Court of Justice related to the freedom of movement for workers, freedom
of association and direct effect of article 48 of the Treaty of Rome. The case also
confronted the legality of the transfer system for players and the existence of the
quota systems that limited the number of foreign players playing a match and
banned the restrictions of foreign players of EU State Members within the national
leagues allowing professional football players in the Union to move freely to another
club at the end of their contract with their present team.
The debate about the limits and expansion of the European citizenship is
taking place nowadays because of the new applications and boundaries that have to
be established. The importance of understanding the Bosman case is that it is an
example of the evolution of the applications of the Treaty of the European Union in
terms of citizenship. We have to ask ourselves now if the resolution of the Bosman
case can be interpreted as a part of the spill over process regarding the EU
citizenship, or if just in an application of the article 48 of the Rome Treaty.
The election of this topic is based on the importance of the football not only
as a sport or economical but as a “cultural institution” 1. It can be interpreted that
the resolution is affecting only economical activity but arguing this, means leaving
behind other aspects of the football industry. Taking in account the different
aspects, the resolution can be understood as a part of a process of expansion
regarding all the activities in the EU.
The first part of the paper will present the facts of the Bosman case, the
reasons, process, and resolution all concerning the event that had changed the
European football. Secondly the aftermath of the resolution in terms of sport
activities and regulation concerning the decision of the European Court in
Luxembourg. In the end, an analysis of why this resolution can be interpreted as
part of the spill over process regarding the debate of a new conception of European
citizenship.
The base for this case is the Article 48 2 of the Treaty of Rome who
established the freedom of movement for workers shall be secured within the
Community by the end of the transitional period at the latest and that 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. Also it shall entail the right, subject to
limitations justified on grounds of public policy, public security or public health: to
accept offers of employment actually made; to move freely within the territory of
Member States for this purpose; to stay in a Member State for the purpose of
employment in accordance with the provisions governing the employment of
nationals of that State laid down by law, regulation or administrative action; to
remain in the territory of a Member State after having been employed in that State,
subject to conditions which shall be embodied in implementing regulations to be
drawn up by the Commission; the provisions of the Article do not applied to
employment in the public service.
The Articles 85 and 86 regarding competition are also important because
they were also part of the lawsuit that Mr. Bosman sued against the Belgian
Federation and the UEFA. The Article 85 3 states the prohibition of incompatible

1 Ovararin, V. Bosman’s Ruling ¶1

2 Treaty of Rome, 1957
3 Ibid. Treaty of Rome
practices with the common market which may affect trade between Member States
and which could prevent, restrict or distort competition in particular those which:
directly or indirectly fix purchase or selling prices or any other trading conditions;
limit or control production, markets, technical development, or investment; share
markets or sources of supply; apply dissimilar conditions to equivalent transactions
with other trading parties, thereby placing them at a competitive disadvantage. Any
agreements contrary to the Article shall be automatically void within other
dispositions not to relevant for the case.
The Article 86 4 says that any abuse by one or more undertakings of a
dominant position within the common market or in a substantial part of it shall be
prohibited as incompatible with the common market in so far as it may affect trade
between Member States. Such abuse may, in particular, consist in: directly or
indirectly imposing unfair purchase or selling prices or unfair trading conditions;
limiting production, markets or technical development to the prejudice of
consumers; applying dissimilar conditions to equivalent transactions with other
trading parties, thereby placing them at a competitive disadvantage; making the
conclusion of contracts subject to acceptance by the other parties of supplementary
obligations which, by their nature or according to commercial usage, have no
connection with the subject of such contracts. We will see later how the UEFA and
other organizations acted contrary to these Articles.

The Bosman Case

The Bosman case has not been the first attempt to promote the free
movement of sport workers within the EU, (Walrave case; Sentence December 12th
1974 and Donà case; Sentence July 14th 1976) 5 the difference is the effects that
came from the it. After some debates regarding the nature of the football players,
The European Parliament approved in April 1989 one resolution about “Freedom of
movement of professional football players in the EEC” 6 were they considered the
football players as workers who had to receive the same guaranties and rights as the
other workers granted in the Treaty about the freedom of movement and the
principle of no discrimination. That led to the sign of a gentlemen's agreement in
1991, it was not obligatory, but it was used until the resolution of the Bosman case
in 1995.
No matter the decision of the European Parliament the football players of the
EU countries had restrictions regarding the free movement of workers granted by
the Article 48 of the Treaty of Rome, these restrictions imposed by the Union of
European Football Associations (UEFA), the institution that controls and organizes
the football in Europe; and by the National federations in terms in nationality and to
avoid the transfer of one player to another team without indemnification for the
owner team.
The problem aroused when Jean – Marc Bosman a player playing for the
football team R. C. Liege (Belgian first division) during 1988 and 1990 received a
new contract in 1990 that will reduced his salary by seventy five percent so he did
not take the offer and was put in the transfer list. No club showed any interest in
Bosman so he arranged a contract with l’Union Sportive de Litoral de Dunkerque a
French club. The two soccer clubs agreed on a one-year temporary contract for
1,200,000 Belgium Francs and an option to buy Bosman after the first year for
4,800,000 Belgium Francs 7, in exchange for receipt by US Dunkerque of a transfer

4 Ibid. Treaty of Rome

5 Kolonko, C. Restraints of Trade in Sport: An International and South African Perspective. 2006 p.
11
6 Crespo, J. El caso Bosman: sus consecuencias. 1996 ¶7
7 Enander, N. Proposed measures by the UEFA and FIFA regarding the transfer system. 2001
certificate. Liege doubted US Dunketque’s solvency, and declined to request that the
Union Royal Belge des Societés de Football Association (URBSFA) send the transfer
certificate to the French club, resulting in the termination of the contract between
Bosman and US Dunkerque. Liege then suspended Bosman and prevented him from
playing the entire season.
Mr. Bosman presented a lawsuit against the RC Liege and after against the
URBSFA and the UEFA. He pretended that the national tribunal in Leige stated that
the rules for transfers and nationalities quotas could not be applied because they
were incompatible with the norms established in the Treaty of Rome about the
competition and free movement of workers. The demands from Mr. Bosman were to
receive a salary of 100,000 Belgian Francs until he was contracted by other club, a
request that prohibited the URBSFA and the UEFA to prevent him to find another
work and finally to raise a prejudicial question to the Court of Justice of the
European Community 8.
The Court of instance decided the payment of the minimum wage (30,000
Belgian Francs), the prohibition wished was also admitted and a question was sent
to the Court of Justice of the European Union on the regime of the transferences of
professional players, in interpretation of article 48 of Treaty the EEC. The prejudicial
question planted to the Tribunal was 9:
“Articles 48, 85 and 86 of the Treaty of Rome, of 25 of March of 1957 must
be interpreted in the sense that they prohibit:
1. That a football club can demand and perceive the payment of an amount
in the occasion of the hiring of one of its players, at the end of its contract, on the
part of a new club employer;
2. That the sport associations or national federations and international can
establish in their respective regulations certain dispositions that limit the access of
the citizen foreign players of the European Community the competitions that it
organize "
About the transfer norms, the Court maintained that they directly affected to
the access from the players to the market of work in other member States and were
therefore susceptible to prevent the free circulation of workers. These norms were
opposite to the dispositions of the Treaty. The arguments presented by the
federations were not accepted by the Court who tried to maintain a competitive and
economic balance between clubs, as well as the aid to young players. Although
Bosman had not been affected by the nationality norms, the national jurisdictional
organ had maintained that these norms could represent an obstacle while reducing
their possibilities of being contracted or aligned by a club of another member State.
The Court of Justice adopted the same argument line that the national jurisdictional
organ.
The Tribunal stated that the Article 48 of the EEC Treaty was opposed to the
application adopted by the sport associations with which a professional player of
national soccer of a State member only can, at the end of the contract, being
employed by a club of another State member if the latest has paid to the origin club
a compensation by transfer, formation or promotion. The Article 48 is also against
to the application of norms adopted by sport associations according to which, in the
parties of the competitions by organized them, the soccer clubs only can align a
limited number of national professional players of other States members.
The USFRBA and UEFA argued in opposition to the resolution citing non –
economic reasons for applying limits in the number of foreign players in each team.
These reasons included the need to fill up teams with players of the local population
or the need to maintain a competitive equilibrium within the national leagues. The

8 Op. Cit. Crespo ¶56

9 Comisión Europea. Deporte y libre circulación - El caso Bosman. 2006
Court answered in a way that the protection of nationality need only to be applied to
the fielding of national teams and the protection of nationalism is not a valid
argument regarding professional football. The Court stated also that the elimination
of the restrictions for nationality would help to increase the opportunity for
employment while creating a larger employment market.
The European Court chose not to rule on the application of Article 85 and 86
to the transfer fee system and the nationality restrictions. It cited sufficient grounds
under Article 48 to invalidate them without considering Articles 85 or 86. The court
did not dismiss these claims, but merely chose not to rule on them in the Bosman
case 10.
The refusal of the restrictive clauses because of nationality is what is most
important for this study since they prevented that “Such freedom of movement shall
entail the abolition of any discrimination based on nationality between workers of
the Member States… 11” So before that decision, the UEFA without being an official
organism restricted the Communitarian Rights of the EU citizenships in their sports
competitions while imposing quotas of the number of foreign or communitarian
players that should play in each team.
The sentence of the Court started in the 15th December 1995 and the
countries affected were the fifteen members of the European Union at that time plus
Iceland, Liechtenstein and Norway because they were members of the European
Economic Area and the agreements gives the workers the right to move freely and
establish themselves within the Community. The UEFA accepted the ruling in
February 1996 and began to adapt its rules. 12

The Aftermath of the Bosman Case

“The ECJ ruled in favour of Bosman and a new era in the sport began” 13.
This phrase reflects all the importance of the Bosman ruling because the European
Court of Justice stated that sport is like any other economic activity and is subject to
ordinary rules of the European law. Before the Bosman case the federations and the
UEFA had been convinced that football was a “specific” 14 activity and have to be
ruled by their own laws.
Even Bosman was surprised with the turn of his case as he declared to the
World Soccer magazine in January 1996 15: "I expected to win my case, but not so
decisively. It was a total defeat for all my opponents. I feel proud I had the courage
to do something no other player had the courage to try. I showed that football is not
above the law.”
The implications of the Bosman are seen now all across Europe. The National
Clubs need to make longer contracts to maintain their players because if no they
could lose them in free transfers. The problem comes for the small teams or second
division teams who cannot afford to sign longer contracts with players (especially
young) so the good players in small teams usually can go to a more prestigious club
in a free transfer. A number of small clubs went bankrupt because they could no
longer rely on the transfer money that secured their futures when they sold a big
player 16.
The Bosman case has worked to benefit the players, now they can demand
higher wages and move to a new club that offers them more profit. “…the Bosman

10 Op. Cit. Ovavarin

11 Op. Cit. Treaty of Rome
12 Op. Cit.. Comisión Europea
13 Ennis, D. The Bosman Legacy in Footbal. 2005
14 Blanpain, R. 10 years of Bosman: the fight for player freedom continues. 2006
15 Op. Cit.. Ennis.
16 Ibid.
case has increased ‘player power’ considerably. Now, as in all other industries, the
best employees will have control over their own career, and will be able to demand
wages that many would argue reflect their skills” 17.
As Mirra says 18, in various ways one of the most important themes of
Bosman could be that 'the rich get richer' whether clubs or players. He also points
that Bosman has been a factor that has led to inflation in salary levels and improved
contracts and this could have turn professional athletes into regular workers. This
has caused that as Ennis 19 points, the FIFA and UEFA are now more alert to the
influences that the European Union or the Courts would like to exert on the game
and are far more receptive to any influences in other activities, not only football.
The Bosman ruling in that time (1996, year that was adopted by the UEFA)
created two types of European clubs, the communitarian and the extra –
communitarian. The first ones had the opportunity to sign any player from the EU
without considering them as foreign players not only in their own leagues but also
in the Continental competitions. The extra – communitarian had to struggle against
the UEFA’s rule of 3+2 (three foreign and two assimilated players).
Regarding to the question of the free circulation of workers without
nationality clauses, although Commissioner Van Miert considers 20 football like an
economic activity, and that for that reason does not admit discussion some on the
fundamental European rights of the free circulation of professional players, some
scholars as Professor Jean-Pierre Karaquillo 21 state the hypothesis that the existing
rules on nationality have a sport purpose and not merely economic. Also for him the
sport interest of the national quota would be the one of the protection of the
national teams, reason why its existence would be permissible and affordable.
Thirteen years after the Bosman Ruling, we are still seeing the changes it
caused in the football industry, not only as a sport activity but also as an economical
activity. The migration of workers from European countries is bigger than in any
other industry. The soccer labour market contrasts with any other sector of the
economy –nowhere else in Spain more than 40% of the workers are foreigners by
origin 22.

Bosman and the European Citizenship

The European citizenship can be easily defined in political and legal terms
according to the Article 8 of the Treaty of Rome 23 because every person holding the
nationality of a Member State shall be a citizen of the Union. But the problem is that
the term citizenship contains a cluster of meanings related to a social o legal status,
a means of political identity, a focus of loyalty, a requirement of duties, and
expectation of Rights and even when all started by political and legal rights, now
civil, political and social rights arise as part of the concept of citizenship 24.
The Bosman ruling is a good example, that shows how the right to work and
the freedom of workers to choose their work and employment can be supported by
the EU Institutions because the decision changed rules that produced discrimination
against workers of other Member States, and reduced their capacity of free
movement because of the limits imposed by the contracts with their respective

17Mirra, V. Implications of the Bosman case in the football transfer system

18 Ibid
19 Op.Cit. Ennis
20 Crespo, J. El Caso Bosman: Sus Consecuencias. 1996
21 Ibid.
22 Roy, J. Are we better off six years later? European integration and the case of FC Barcelona. 2007
23 Op. Cit. Treaty of Rome
24 Meehan, E. Citizenship and the European Community. 1993
teams. This changes that started in an economical way, have expanded to social
rights as Miguel Poiares 25 states:
What is clear is that the most important developments in the area of social rights have also come
from the core of market integration. It is the relationship established between free movement of
persons and the principle of non-discrimination on the basis of nationality that has mainly been the
driving force behind some of the most important developments on the protection of social rights in
the European Union and the construction of a European citizenship.

This process when a secondary effect follows a primary effect is what is

called a spill – over and can be functional or political. The functional is when
technical imperatives push integration from one economic or policy sector into
others and the political focuses more in the attitude of the participants in the
emerging regime 26. In the Bosman case it was more a functional than a political
spill – over because even when the decision came because of the response of one of
the participants, it was more the economical development that led to the decision of
the Court.
What become relevant in the Bosman ruling was that within the European
Community the time to pass from just political and economic rights to civil, political
and social rights took many years and there were people as Raymond Aaron 27 who
consider that there would be not possibility of an European Citizenship, but in the
case of the football players, what started as an economical rights, transformed very
quickly into social rights and as Dr. Poiares considers; “The consequence of the
recent expansion of the free movement of persons provisions beyond the simple
prohibition of discrimination on the basis of nationality may be the recognition of a
set of European social rights required for an effective protection of the free
movement of persons”. 28
The rapid expansion of the football market after the Bosman ruling had
become an important way of expanding the European citizenship because as
pointed earlier, in the Spanish league, around the 40% of the players are not
Spanish and the real fact comes when they consider themselves as communitarian
and not by their nationality. The concept of communitarian players has born in
opposition to the concept of non – communitarian players, reflecting an integration
between all the players of the Member States.
The Bosman case is not merely the application of the Article 48 of the Treaty
of Rome, it is part of the spill – over process of the European citizenship because the
concept of citizenship is now expanding its boundaries and taking in consideration
another types of activities. It is clear that football is an economic activity and it has
to be considered within all the regulation of the European Union, but is necessary to
take in consideration that football is also a cultural expression and a social activity
that goes far beyond the economical issues and the fact that the European
institutions take part in regulating them as any other activity points that the process
of creating and respecting an European citizenship is now going far from the
economic, landing in new areas in order to be more extensive and inclusive.
Aaron said while arguing against the concept of a European citizenship that
the Community actually weakens people’s sense of their citizenship 29 but it seems to
be not totally true, at least in football terms, where after the Bosman case and the
arrival of foreign players to the teams there have been a loss of identity in the clubs
but as a consequence of the loss of regional identity in the clubs has been a

25 Poiares, M. Europe’s Social Self: “The Sickness Unto Death”. 2000

26 Op. Cit.. Meehan.
27 Aaron, R. Is Multinational Citizenship Possible?. 1974.
28 Op. Cit. Poiares
29 Op. Cit. Aaron. p.649
resurgence of the value given to the national teams, expressed in the latest World
Cups or as will be seen in the next UEFA Euro Cup.
The football now has become a way to promote the European citizenship,
because more traditional methods as the elections have been failing and the
abstention is winning 30 in terms of football, the participation is increasing in terms
of viewers and spectators, as an example “118 million people tuned in to the first-
round France-England match... That figure trounces the 89 million-person
American audience for the Super Bowl last year, which was the biggest television
event of 2003 31” also “The Dutch were the most avid viewers, with an average of
22.4 percent of the population tuning in 32”. This could be an opportunity to expand
the concept of citizenship with less traditional alternatives, because talking about
European citizenship only in terms of political, economic and legal rights has been
over passed.
Even when a lot of benefits for the European citizenship have come after the
Bosman case, it is important to point one big problem because while the rest of the
Europeans were considered EU citizens, non - European players search for EU
passports through a variety of means. The result is that as much as 64% of Spain’s
league players with EU passports had not been born in Europe and the pressure to
shorten the residency requirements in any EU country is increasing and if the trend
continues, in a few years any player of any origin will be able to play in Europe and
count as European 33.
The Bosman case has proven how can be possible to expand the concept of
European citizenship to include other categories such as civil and social rights, but
also how to include it in a cultural way. While Europe is searching for more
methods of integration it is important to understand the impact of the football in
this process. Players as Eric Cantona in Manchester United, Zinedine Zidane in Real
Madrid, Gianfranco Zola in Chelsea or Thierry Henry in Arsenal are proofs of how
can a foreign player can become an idol within the community, city or club.
The Bosman case have proved to be a rupture point in the European sport, it is
indispensable to understand that the opening of football borders within the EU as a
result of Bosman need to be considered alongside broader political and economical
developments in different parts of the world 34.

Conclusion
This paper had the intention to show how the Bosman case has been part of
the spill – over process of the development of the European citizenship, passing
from economical rights to social and civil rights. The concept of citizenship cannot
be a static one, the society is changing and also the relationships between persons
and countries. These changes had led to the new conception of a dual citizenship
based not only in the country of origin but also in a supranational entity such as the
European Union. The basic criticisms about the possibility of having this dual
citizenship have been over passed because the searching for common rights went
far away for just economical rights, causing and expansion of them to the political,
civil and social fields, landing in new industry that were regulated by their own
rules like the football.
Taking away the consequences for the football industry, in legal terms the fact

30 Delwit, P. Electoral Participation and the European Poll: A Limited Legitimacy. 2002
31 Pfanner, E. TV ratings climb for Euro 2004. 2004 ¶6
32 Ibid. ¶12
33 Op. Cit. Roy. p. 12
34 Lafranchi, P. Bosman: A Real Revolution?. 2004. p. 111
that the European Court forced the UEFA to attach to the European legislation is
important because it forced all economical activities to take part in the European
legislation without any particularities. The fact that just one player could won a case
against a powerful organization like the UEFA shows the interest of the European
authorities in making efforts of integration and expansion of the concept of
citizenship.
The far the process of integration goes in Europe, the fast the concept of
citizenship expands. It is no more just about political rights, the social and civil are
taking place along with more necessities as long as the process continues and it is
not possible to maintain the definition in a static way. The concept of citizenship
goes far away from a legal construction because it is imbued with an ideological
value that must be explained by what they mean to real participants in social
contexts 35 as an ideological construction is where the cultural aspects can play an
important role and more football, because it is not a cultural expression but also as
an economical activity. The football has the particularity that can reinforce the
national values when talking about the National squads, but also promotes
integration within the clubs in the national leagues.
The Bosman case is not merely the application of the Article 48, it is part of the
spill – over process of the European citizenship because the concept is now
expanding its boundaries and taking in consideration another types of activities
proving that been European is not only exerting the political and economical rights,
but also participating in other types of activities that promote integration.

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