AlexTheGreat said:
whats the different? he cant go to the club to play after his contract was expired because of some rotten rules set by fifa. now is Juve's turn, we cant seek for a fair trial becoz some rules which should be changed
FACT-SHEET ONE:
THE BOSMAN CASE, EU LAW AND THE TRANSFER SYSTEM
WHAT IS THE BOSMAN CASE?
The Bosman Case was a legal decision made by the European Court of Justice in 1996. The case determined the legality of the system of transfers for football players and the existence of so-called 'quota systems', whereby only a limited number of foreign players were allowed to play in a club match. The decision binds all football governing bodies that are based in the European Union, and indirectly affects all UEFA competitions even though UEFA is based in non-E.U. Switzerland.
WHAT WAS THE SITUATION BEFORE BOSMAN?
Before the Bosman case, the situation in European football was very different with regard to player transfers and quotas. Prior to Bosman, a football player could only move to another club with the agreement of both clubs. Usually this agreement was only reached by the setting of a "transfer fee", whereby the buying club actually purchased the player from the selling club. This applied regardless of whether or not the player’s contract with the selling club had ended. Hence, out of contract players were not allowed to sign a contract with a new team until a transfer fee had been paid, or they had been granted a free transfer.
Secondly, prior to the Bosman case, quota systems existed in many national leagues and also in the UEFA club competitions. The quota systems meant that only a limited number of foreign players could play in a particular match. For example, in the UEFA club competitions, only 3 foreign players (plus 2 ‘assimilated’ foreign players) could play for a team.
WHY DID THE BOSMAN CASE COME ABOUT?
The Bosman case arose because of a Belgium player called Jean-Marc Bosman. Bosman’s contract with Belgium club side RFC Liege had run out and he wanted to be transferred to French club Dunkerque. Liege, however, refused to let Bosman leave without the payment of a transfer fee which Dunkerque were unwilling to pay. Bosman claimed that as a European Union citizen, he possessed the right to "freedom of movement" within the European Union if he wished to find work (then Article 48 of the Treaty of Rome). The transfer system prevented him exercising his right to freedom of movement and Bosman argued that the system should be changed so that players who were out of contract with their club could move to another club without the paying of a transfer fee.
WHAT WAS THE DECISION IN THE BOSMAN CASE?
The case was heard at the European Court of Justice, and the court found in favour of Bosman and against RFC Liege, the Belgium Football Association and UEFA. There were two important decisions:
1. Transfer fees for out-of-contract players were illegal where a player was moving between one E.U. nation and another. From now on only players still serving contracts with their teams could have transfer fees paid for them.
2. Quota systems were also held to be illegal. Club sides are now able to play as many foreigners from other European Union states as they liked (although limits on players from outside the E.U. could still be imposed).
WHAT ARE THE IMPLICATIONS OF THE BOSMAN CASE?
The implications of the Bosman case were far-reaching for football across Europe. Clubs started signing players for longer contracts than before in order to avoid risking losing them on free transfers. Smaller clubs that could not afford to sign longer contracts with players (especially young players) who may not fulfil their potential started to lose out on transfer fees as the better players moved on to larger clubs on free transfers. However, fears that large numbers of smaller clubs would go bankrupt as a result of this proved groundless. The most serious economic impact of the Bosman case would only become apparent six years later, when the ITV Digital TV deal with the Football League collapsed, leaving clubs that had employed players on long-term contracts unable to reduce their now inaffordable wage bill.
However, the case had a beneficial effect on the players. Out of contract players were able to enter into free negotiations with potential employers, resulting in an enhanced bargaining position and higher wages. In effect, the Bosman case increased ‘player power’ considerably, providing players with more employment rights and a greater say in the development of their career.
THE LEGALITY OF THE POST-BOSMAN TRANSFER SYSTEM
Tthe Bosman case, though widely reported, only affected the transfers of players whose contracts had come to an end. It did not, however, address the wider and potentially more serious issue of the legality of the payment of transfer fees for players who are still under contract. In 1998, the European Commission issued a statement of objections on the international transfer system for contracted players to the football authorities, and in 2000, following the £37m paid by Real Madrid for Barcelona’s Portuguese international Luis Figo (who was midway through his contract) it declared that the international transfer system was incompatible with the EU Treaty. Obliged under Declaration 29 of the Treaty of Amsterdam “to listen to sports associations when important questions affecting sport are at issue”, the Commission entered into negotiations with the football authorities a reform of the system to bring it in line with the Treaty.
Following the Bosman case, transfer fees in football for such players continued to spiral, peaking at the £45m paid by Real Madrid for Zinedine Zidane. However, the demanding of such a fee by the selling club – should the buying club refuse to meet it – has the potential to severely restrict freedom of movement between EU states for players. For example, the fee demanded by Barcelona for Luis Figo essentially meant that it was only Madrid, and perhaps a couple of the larger Italian clubs, that could realistically afford to buy him. It meant that had Figo wished to return to Portugal, he would have to wait until the end of his contract, as no Portuguese club could have ‘bought’ him.
The selling clubs believed that both legally and morally, there was nothing wrong with the situation allowing them to control the movement of players under contract, as they had an obligation to honour their contract, and should a player breach it by moving elsewhere, then the fee acted as compensation for the breach. However, the transfer fees were, in the European Commission’s opinion, no longer reflective of the actual loss suffered by a club for a player leaving mid-way through a contract. Real Madrid had to pay Arsenal £23m for Nicolas Anelka, but at the time when Arsenal were refusing to release him, Anelka’s lawyers warned legal action, claiming that the real value of the compensation owed for Anelka breaking his contract and moving to Madrid would be merely £900,000, the value remaining on his contract. In addition, in many cases of player transfers, it was the selling club that had actually broken the contract by selling a player often against his wishes in order to gain the capital from a transfer fee. In these cases, why should any compensation be payable, except by the ‘selling club’ to the player?
THE EUROPEAN COMMISSION’S CHALLENGE TO THE TRANSFER SYSTEM
The Commission believed therefore that the compensation payable for contract breach on the part of a player should be objectively and impartially determined, should more accurately reflect the actual loss suffered by the club, and should not prevent players moving between EU states. The Commission pointed out that in other industries, employees who wished to terminate their contract could do so by serving a period of ‘notice’ as stipulated in the contract of employment, although they accepted that a system whereby a player could simply give a month’s notice to his current club and then move to their local rivals before, perhaps, a championship decider or cup final would result in devalued and unbalanced competitions. As a result, the European Commission did not demand complete freedom of movement for footballers, but instead called for a compromise that would bring the international football transfer system more in line with EU law without devaluing the competitions themselves.
As with the Bosman case, the football authorities both in the UK and throughout Europe were unwilling to meet the Commission half-way, instead insisting that Sports should be completely exempt from EU law and that the current transfer system should remain. They argued that transfers provided a method of re-distribution that kept smaller clubs and smaller leagues afloat, and that without the system, football as a sport would suffer. However, the football authorities arguments, even backed up by accountants Deliotte and Touche, were not convincing. The transfer system’s re-distributive qualities since Bosman had been extremely limited, with most ‘big money’ transfers being between the richer clubs for already ‘proven’ players and in the UK in particular, as many small clubs were getting into financial difficulties through over-spending in the transfer market as were being bailed out by being able to sell their best players to other clubs. Furthermore, the Commission considered that if the authorities were serious about redistributing wealth to the poorer teams then there were better ways to do this, for example by sharing out television revenues more fairly.
Another problem that the football authorities failed to address was that even if the European Commission did “leave football alone”, as the frequently requested, that would not change the potential illegality of the transfer system, only make a future challenge by a disgruntled footballer more likely, possibly with support by the international player’s federation, FIFPro. This could result in an ECJ case with even more serious consequences than Bosman, with the court most likely less willing than the Commission to accept a compromise settlement.
THE NEW INTERNATIONAL TRANSFER REGULATIONS
However, whilst UEFA and the big clubs fought their corner, FIFA appeared to recognised the inevitability of change and introduced new transfer regulations for international transfers. These were ratified at the annual FIFA council in Buenos Aires in July 2001. The new regulations applied to all contracts signed after 1 st September 2001, and provided for:
Training Compensation for Players under 23
Protection of contracts for the first 2-3 years from unilateral breach by players by a sporting sanction of a four month suspension combined with compensation reflecting the wages and period left on the contract of the player in accordance with national law.
Movement for players only in 2 transfer “windows” a season (so contrary to popular belief, the windows were actually a FIFA rather than a Commission idea to protect the industry).
The creation of an independent and objective disciplinary and arbitration system to deal with contractual disputes and compensation (with the power to allow movement for contracted players for good ‘sporting’ reasons.
UEFA and the clubs were under the impression that the sporting sanction was 4 months from the beginning of the next season – ie as many as 16 months, and would therefore act as a deterent. FIFA, had, however, essentially pulled the rug from under UEFA and made a secret agreement with the Commission and FIFAPro. In September 2001 they released FIFA Circular 769, making it clear that the ban was a maximum.
The new system was initially sold to the Commission as a way to replace transfer fees without distorting competition, but it soon became clear that transfer fees would still be paid in situations where both parties and the player agreed. Although transfer fees have reduced since the 2001 regulations, this has been more the result of the economic downturn in the transfer market, and prohibitive fees have still been used to prevent players leaving their clubs (e.g. Fulham’s valuation of Louis Saha to try and prevent a move to Manchester United in the 2004 January Transfer Window) or to raise revenue to reduce debts (e.g. Leeds United’s sale of Jonathan Woodgate in 2003). Indeed, three years after the new regulations were introduced, the only notable impact for British football has been the introduction of transfer windows and the payment of compensation for out-of-contract players under 23 (for example the £2m+ paid by Manchester United for David Bellion in 2003), both of which in effect reduce freedom of movement.
IS THE CURRENT SYSTEM LEGAL?
It was surprising that the European Commission was willing to accept a ‘compromise’ that in reality left transfer fees more or less intact, but also opened the door for potentially prohibitive fees for players who had previously been free agents, reduced freedom of movement by introducing transfer windows and gave the football authorities the power to suspend a player breaking a contract for 4 months. It is unlikely that this issue is closed. The football authorities’ agreement with the Commission holds no legal standing and would not prevent a challenge in either a domestic court, under laws such as Restraint of Trade, or in the European Court of Justice under Article 39, Freedom of Movement of Workers, or Article 81, Anti-Competitive Agreements. In 2001, the transfer system was subject to another 'Bosman-esque' challenge, when a Hungarian Player, Tibor Balog, challenged the system at the ECJ. However, the case of Tibor Balog v Royal Charleroi Sporting Club (Case C-264/98) was dramatically settled out of court shortly before the Advocate-General’s opinion was delivered, considered by many commentators to have been favouring a judgement that the system was incompatible with Article 81 of the EC Treaty.
WHAT IS THE FUTURE FOR FOOTBALL UNDER EUROPEAN LAW?
Recent attempts to exempt football from European Competition and Employment law have failed. Football is an "economic activity", and as such it is an area of E.U. ‘competence’ (although a declaration made with the Treaty of Amsterdam that acknowleged the specificity of sport). Therefore the football industry must comply with European Union Law a similar way to any other industry. It is clear now that the Bosman case was just the tip of the iceberg with regard to E.U. law’s affect on football, a point backed up by the stance of the European Commission on this issue. Furthermore, the application of EU Competition Law to the industry is already having an important effect with regard to the sale of television rights (for the UEFA Champions League and the FA Premier League for example).
EU Employment Rights for footballers are also being extended to many non-E.U. states in Eastern Europe and North Africa that have association agreements with the E.U.. Recent cases involving Valery Karpin and Igor Simutenkov (both Russians playing in the Spanish League) mean that Football Authorities cannot discriminate against non-EU nationals (most notably through the imposition of foreign player quotas). Furthermore, it is probable that employment rights arising from the 'Cotonou Agreement' between the EU and a large number of African, Pacific and Carribbean states are also directly applicable to football, meaning that it would be unlawful for a Governing Body or club to discriminate against a player from these nations who is lawfully employed within the EU.
FURTHER READING
Belgian FA v Bosman [1996] All ER [EC] 97
Blanpain, R and Inston, R, (1996) The Bosman Case, Sweet & Maxwell: London
Caigner and Gardiner, (2000) Professional Sport in the European Union: Regulation and Re-regulation, TMC Asser: The Hague
Crolley, L, Levermore, R, and Pearson, G (2002) ‘For Business or Pleasure? A Discussion of the Impact of European Union Law on the Economic and Socio-Cultural Aspects of Football’ European Sports Management Quarterly Vol.2 No.4: 276
Gardiner, S et al (2001), Sports Law, Cavendish: London.
Morris, P, Morrow, S and Spink, P (1996) ‘E.C. Law and Professional Football: Bosman and its Implications’, Modern Law Review, November: 893
Weatherill, S, (2003) ‘”Fair Play Please!” Recent Developments in the Application of E.C. Law to Sport’, Common Market Law Review, No. 40: 51-73
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<---(btw is that the most used smilie in the recent months 
), I wanted Juve to take the case to the European Court of Justice. They will be viewed by the press as autonomus institution beyond Juve influence (this doesn't Juve have the control of Italian courts, but others may not see it in that way), and any decisions from there will have international recognition, and authority.
and no matter Juve win the Tar case or not they can take the case to the EU court, imo