Dual satisfaction not yet totally warranted. The reader may well imagine with what satisfaction the author of these lines read in "Le Monde", serious newspaper if ever there was one, the headline of a full page spread: "The process aimed at overturning the Bosman ruling has begun". Satisfaction at noting that the interest of young Europeans were finally being taken into account and that the negative effects of this ruling for sport in Europe should be acknowledged, as well, in some part, personal satisfaction, recalling the time when this section was the only tribune (small)as it may be where the Bosman ruling was disputed from the outset, among reproachful comments by legal experts, sarcasm even (the word is not too strong) of the entourage of the beacon of European thought that was Padraig Flynn.
Unfortunately, this dual satisfaction is not yet wholly warranted by the facts. What has changed, is the general atmosphere that surrounds sports and the desire to provide sport with the position it deserves. But the EU has not yet drawn from this change all the conclusions that are demanded. Let's go by order.
The word "sport" is no longer an intruder in Community language. A few years ago, the very fact of pouncing the word seemed incongruous, an anomaly compared to serious issues that European institutions have to deal with, an intrusion of frivolity in an austere world. And when sport was surreptitiously introduced into this world, because the Court of Justice itself was called on to deliberate the issue, sports representatives were viewed from on high and a certain amount of mistrust (in part, warranted, true).
Today, the EU recognises the function of sports in society. Ministers increasingly deal with it, the European Commission and its officials no longer have the impression of demeaning themselves by devoting too much of their time to it. The Commission's latest comprehensive paper, drawn up under the responsibility of Mrs. Reding after many hours of preparatory work by some officials devoting themselves to the task with passion, is a turning point, offering sport a positive image and recognising its significance. This attention and this recognition are taking shape in a few specific priority fields, like the fight against doping. The new atmosphere is influencing the general attitude of institutions relating to sports; we especially appreciated the speed and efficiency with which the European Commissioner for competition, Mario Monti, as soon as he took office, recognised that implementation of the rules of competition had to take account of the special nature of sport. Its significance and its objectives. In fact, at a more general level, we are allowed to feel confident: yesterday's condescension, vaguely tainted with scorn¸ is behind us.
The weight of the two (mistaken) principles of the Bosman Ruling. What is unfortunately false is that the "process aimed at overturning the Bosman ruling" has begun. Impending Court of Justice rulings on sports cases will no doubt take sport's specific nature into account, in compliance with the general attitude that is currently that of the Court, which takes due account of the goals and nature of the situations on which it has to rule. It has, for example, already said that environmental protection may justify certain obstacles to the free movement of goods (even against the opinion of the European Commission). But regarding specifically the Bosman Ruling and its harmful effects on the organisation and practice of sport, the situation will not improve as long as the two principles underlying the ruling (both mistaken) have been reversed. Let us recall these two principles.
Firstly: the Court decreed that provisions limiting the number of non-nationals that may take part in a sporting event constituted "discrimination based on nationality", incompatible with the fundamental rules of the EU. Where lies the mistake? In the application of the principle of non-discrimination there where it does not have its place. All sports rules are discriminatory in appearance; in fact, this is not discrimination but standards imposed by the very nature of sport and by the fairness of competitions. "Discrimination" based on sex is the first rule of sport: women's competitions are separate from men's. "Discrimination" based on age is the second rule: participants are rigorously separated according to age, adolescents must not combat men, older sports people have their own reserved events, etc. Some forms of obligatory "discrimination" in sports would be grotesques elsewhere: that based on weight, for example (neither in boxing nor other sports do the "lightweights" fight the "heavyweights").
Participation of non-nationals may not be imposed in all competitions. Can there be an exception for discrimination based on nationality? If one has to designate a country's champion, only nationals of that country take part; its intuitive, the best Frenchman in a speciality cannot be a German, the best Greek cannot be a Spaniard. It is the nature of the demonstration that determines the participants, in the same way that traditional meetings between married and celibate people it is the married who decide; and that in an international tournaments, the Commission team must not have Council civil servants in it and in that of the Parliament the civil servants from the Court of Justice are not admitted.
Would it be possible to establish a distinction between professional and amateur sport? From several points of view yes and it is even inevitable. Though for the "discrimination" aspect no, the rules are the same. Take the example of most "professional" sport that exists, tennis. Roland-Garros is the popular name for the large Parisian tournament, but the true name is "International French championship" and all the world tennis players take part. Though in the national French championship, only Frenchmen are admitted. This is the same for Wimbledon in Great Britain and so on. And what about the Davis cup? None of the rules would pass the lawyers assessment, as they don't know the rules of the sport. The none-nationals may take part in the team of a country which is not theirs on condition that they have been affiliated to that country's federation for five years. Who once played in a country's team, may no longer, for this competition, be part of another country's team, even if in the mean time, he acquired the nationality. Why such strict rules? On the basis of purely sporting criteria: avoid that a billionaire may "buy" a team and win the coup through the power of money.
How to conciliate, in football and elsewhere, the right for a professional club to offer contracts to all footballers that they want, without discrimination based on nationality? It is quite simple: each club may contract all the professional players it wants, but the participation in one or other event depends on the nature of the event itself and the organisers decisions. Who does not like this formula? Which large multibillionaire companies who today "buy" footballers only to frustrate rival teams; nor the big stars who even afford to blackmail; nor the "agents" who win a percentage for each new contract and so should push players to change team as often as possible. It is really with them that the legislators should be preoccupied?
A barrier to the free movement of workers? The second principal on, which the Bosman ruling is based is that the "transfer compensation" represents… a barrier to the free movement of workers. In following his Advocate general, a brave person, but who was ignorant of all sport, the Court neglected the true meaning of these "compensations": their main aim being to enable less rich clubs, provincial or peripheral, to create and maintain a large number (often up to fifty or more) "youth squads", that is to say youths, children often from the street, often immigrant children. In knowing that out of several thousands only a small number will become professional footballers and one or two will have the role of stars, at the same time, certain clubs give job training to their apprentice footballers, so that that may return to society. The transfer compensation of the "rare pearl" who succeed enable serious clubs to maintain their youth teams and constantly renew them. The Bosman ruling ended all of that; these brave lawyers and Mr. Flynn with them, happy to have asserted a principal, free movement, where it has no place!
The free movement of workers is a thing that is too important for united Europe to mix it with a case that concerns only a dozen stars. The transfer compensations never stopped the billionaire clubs from hiring champions, the whole history of football is there to prove it; simply, they should pay compensation (sometimes lavish, why not?). What we saw afterwards, flirting the terrible; these "agents" that frequent the local clubs to find the most promising young in training and offer them contracts (to them or their parents eager to profit from the child's revenue) to extract without an attached grant to those who offered them the possibility of learning to play football… In some cases, the court take care of it.
The Bosman ruling also provoked absurd effects. The free movement of workers being a intra-community notion, the transfer compensations have become banned between clubs from different Member States, but have remained legal between clubs of the same country! Must we conclude that the free movement of workers does not exist inside our Member States where it is blocked because the transfer of footballers is subordinated to the payment of compensation?
The justification (some say: relentlessness) that this section dedicates to sport in the European contexts remains to seen. Once again we try, in the following page, to explain the reasons. Readers with an interest should read on.
Ferdinando Riccardi