It has been over 20 years since a relatively unknown Belgian footballer faced the toughest opponent of his professional career and succeeded in changing the world of modern football forever. Jean Marc Bosman’s plea to the European Court of Justice in 1990 stemmed from his dissatisfaction with FIFA restrictions that prevented him from making a transfer to French club Dunkerque, despite his contract having already expired at Belgian side RFC Liege. The 1995 decision by the European court was a win for Bosman on a personal level, however the ruling has had far-reaching consequences since, giving leverage to players to demand huge signing-on fees and salaries to make up for the absent transfer fee. The record breaking €222 million transfer deal of Neymar from Barcelona to Paris St. Germain in 2017 would never have come about if it wasn’t for the aforementioned court ruling. Sport, in general, has been afforded the platform to self-govern, preventing the interference of the ordinary courts whose rulings could profoundly change the nature of the sport. But when does the law intervene? What recourse do players have in circumstances of dispute? Is sport a law unto itself?
Sport and the law have historically been considered as ‘natural enemies’ and the Government has been reluctant to intervene in the self-regulatory nature of national sporting organisations. Sporting regulation has predominantly fallen outside the realm of national private law as its nature sits uneasily with pre-existing norms in societies that forbid certain activities. For example, assault is a punishable offence, however, the sport of boxing endorses such violence. Consequently, the Government has respected the advantages of affording sporting federations the platform to self-govern and enjoy limited interference from the State. This is largely due to the historically recognised personality of sport, deemed to be best regulated by those who are truly invested, with the most expertise, and in the most appropriate position to protect the integrity of the sport and its players.
In a broad sense, there are many advantages associated with self-governing authorities like Just Sport Ireland and the Disputes Resolution Authority (DRA) such as; internalising cost, efficiency and technical advantages relating to expertise. Along with the practical advantages of avoiding the ordinary courts, it also limits State interference in matters that could profoundly affect the nature, traditions and personalities of different sport. The 1990 Bosman ruling in the European Court of Justice changed the nature of the Champions League on an international level. The Belgian midfielder challenged the Article 17 restriction in the FIFA regulations, arguing it was a breach of the European Union right to free movement of people, as he was not permitted to transfer to another club without the grace of his existing club. Bosman was coming to the end of his contract at Belgian side, RFC Liege. After an unsatisfactory two-year stint with the club, the midfielder was offered an improved contract by French second division side, Dunkirk. Before the Bosman ruling, a player could not leave at the end of their deal unless that club agreed to let him go on a free transfer, or if that club received a previously agreed fee from the buying club. Liege demanded a fee, far out of reach for Dunkirk, and when the deal fell through, Bosman’s wages at Liege were cut by around 75 per cent. After a 5 year legal battle, it was decided that leaving fees were effectively infringing on players’ right to free movement, a decision that was to be a game changer for the sport of football.
Pre-Bosman, clubs were under a “three-plus-two” rule in European competitions, meaning they could name no more than three foreign players in their squad for games on the continent, with an additional two who had progressed through the club’s academy. The impact of the Bosman ruling has resonated throughout the world and shaken up the entire nature of the game. Before the Bosman ruling in 1994, with UEFA ruling that Welsh and Scottish players counted as foreigners to English sides, then-Manchester United manager, Alex Ferguson was infamously forced to replace first-choice goalkeeper Peter Schmeichel with Gary Walsh in the 4-0 defeat by Barcelona at the Nou Camp in the Champions League group stages. Post-Bosman, clubs were free to play all EU players, and back at the Nou Camp in 1999, United completed a historic treble, by fielding eight players who would have been considered “foreign” just four years previous. Sir Alex Ferguson commented “Once the European Court of Justice ruled that clubs no longer had to pay transfer fees after the expiration of a player’s contract, all hell broke loose. Suddenly it was a free-for-all.”
Sport, at both amateur and professional level, like any area of society, is not without internal conflict. But given the increased commercialization of sport, the stakes, in monetary and professional terms, are higher for those invested in the sport, both as an athlete, shareholder and as a spectator. With such heightened interest, follows an influx of litigation and a demand for fair hearings and judicial process. Disputes arising from contested GAA suspensions to club relegation all require an authority to intervene and mediate. The European Union recognised the ‘special nature’ of sport and has supported national sporting federations to resolve disputes within their own organisations without the need to resort to the ordinary courts barring specific circumstances where the fairness of procedures are challenged.
Each organisation and local club are subject to the rules of that sporting federation which may extend beyond national boundaries to continental authority in certain sports ie. UEFA. Most of these organisations insert a clause in their regulations that any dispute relating to on field tackles, suspension, membership etc. will be referred to Just Sport Ireland or the DRA (or their own national equivalent). However, doping appeals are referred to the Court of Arbitration for Sport (CAS) in Lausanne upon exhausting all domestic dispute resolution remedies.
These platforms are affordable for amateur and professional players, and mean that the ordinary courts do not have to interfere in sporting matters whereby rulings could potentially alter the whole face and nature of the game as was the result of FIFA’s loss in 1995 before the European Court. Sport regulation it appears, is best left in the hands of those who truly understand the rules of the game.
Aoife Brady – Sports Writer
