European Citizenship Institute d’Etudes Politiques du Paris

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.

May 08

The Bosman case and its implication with European Citizenship

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 482 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 853 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 864 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 Francs7, 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 Community8.

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 was9:

“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 case10.

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 199615: "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 player16.

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 says18, 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 Ennis19 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 considers20 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 Karaquillo21 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 origin22. 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 Rome23 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 citizenship24.

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 Poiares25 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 regime26. 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 Aaron27 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 citizenship29 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 winning30 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 200331” also “The Dutch were the most avid viewers, with an average of 22.4 percent of the population tuning in32”. 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 European33.

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 world34. 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 contexts35 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. Bibliography Aaron, Raymond. (1974). Is Multinational Citizenship Possible?. Social Research

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