Bernard v. Bosman Michele Colucci

Bosman versus Bernard Sport in so far as economic activity Free movement of workers Restrictions regardless of nationality Professional to professional End of (prof.) contract Sport in so far as economic activity Free movement of workers Restrictions regardless of nationality Amateur to professional End of (amateur) contract/training 2

Bosman versus Bernard Transfer fee To be paid by new club Limitation of free movement Justification possible But violation ALTERNATIVE MEASURES NO TRANSFER FEE BUT Openings for training compensation Damages To be paid by player Limitation of free movement Justification possible Proportionate But violation Openings for training compensation 3

Bosman versus Bernard “106.   In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate. “39. In regard to professional sport, the Court has already had occasion to hold that, in view of the considerable social importance of sporting activities and in particular football in the European Union, the objective of encouraging the recruitment and training of young players must be accepted as legitimate (see Bosman, paragraph 106).” 4

Bosman versus Bernard “108.   As regards the second aim, it must be accepted that the prospect of receiving transfer, development or training fees is indeed likely to encourage football clubs to seek new talent and train young players.” “41. In that regard, it must be accepted that, as the Court has already held, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players (see Bosman, paragraph 108).” 5

Bosman versus Bernard “108.   As regards the second aim, it must be accepted that the prospect of receiving transfer, development or training fees is indeed likely to encourage football clubs to seek new talent and train young players.” “41. In that regard, it must be accepted that, as the Court has already held, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players (see Bosman, paragraph 108).” 6

Bosman versus Bernard “109.   However, because it is impossible to predict the sporting future of young players with any certainty and because only a limited number of such players go on to play professionally, those fees are by nature contingent and uncertain and are in any event unrelated to the actual cost borne by clubs of training both future professional players and those who will never play professionally.” “42. The returns on the investments in training made by the clubs providing it are uncertain by their very nature since the clubs bear the expenditure incurred in respect of all the young players they recruit and train, sometimes over several years, whereas only some of those players undertake a professional career at the end of their training, whether with the club which provided the training or another club (see, to that effect, Bosman, paragraph 109).” 7

Bosman versus Bernard 109. “The prospect of receiving such fees cannot, therefore, be either a decisive factor in encouraging recruitment and training of young players or an adequate means of financing such activities, particularly in the case of smaller clubs.” 44. (…), the clubs which provided the training could be discouraged from investing in the training of young players if they could not obtain reimbursement of the amounts spent for that purpose where, at the end of his training, a player enters into a professional contract with another club. In particular, that would be the case with small clubs providing training, whose investments at local level in the recruitment and training of young players are of considerable importance for the social and educational function of sport. 8

TRAINING COMPENSATION?

THE PRINCIPLE PARA: 45 “a scheme providing for the payment of compensation for training where a young player, at the end of his training, signs a professional contract with a club other than the one which trained him can, in principle, be justified by the objective of encouraging the recruitment and training of young players. However, such a scheme must be actually capable of attaining that objective and be proportionate to it, taking due account of the costs borne by the clubs in training both future professional players and those who will never play professionally (see, to that effect, Bosman, paragraph 109).

AG in Bernard 52. First, since only a minority of trainee players will prove to have any subsequent market value in professional football, whereas a significantly greater number must be trained in order for that minority to be revealed, investment in training would be discouraged if only the cost of training the individual player were taken into account when determining the appropriate compensation. It is therefore appropriate for a club employing a player who has been trained by another club to pay compensation which represents a relevant proportion of that other club’s overall training costs. 11

AG in Bosman “237. The transfer fees cannot be regarded as compensation for possible costs of training, if only for the simple reason that their amount is linked not to those costs but to the player's earnings.” (…) “Any reasonable club will certainly provide its players with all the development necessary. But that is expenditure which is in the club's own interest and which the player recompenses with his performance. It is not evident why such a club should be entitled to claim a transfer fee on that basis.” 12

AG in Bosman “239. That does not mean, however, that a demand for a transfer fee for a player would, following the view I have put forward, have to be regarded as unlawful in every case.” 13

AG in Bosman Such rules would in my opinion have to comply with: First, the transfer fee would actually have to be limited to the amount expended by the previous club (or previous clubs) for the player's training. Second, a transfer fee would come into question only in the case of a first change of clubs where the previous club had trained the player. Analogous to the transfer rules in force in France, that transfer fee would in addition have to be reduced proportionately for every year the player had spent with that club after being trained, since during that period the training club will have had an opportunity to benefit from its investment in the player. Moreover, it is not certain that even such a system of transfer rules could not also be countered by Mr Bosman's argument that the objectives pursued by it could also be attained by a system of redistribution of a proportion of income. 14

Summary Training compensation can be adequate (ECJ Bernard) Compensation of real training costs (ECJ Bernard) Criteria determined in advance (ECJ Bernard) Paid by player / club (AG Bernard) Relevant proportion of overall training cost (AG and ECJ Bernard) Pro rata for training clubs (AG Bernard) Development is also in interest clubs (AG Bosman) Only in case of first change / reduced in time (AG Bosman) Not make free movement impossible (proportionality) (Bosman, Bernard) 15