Responsibility. Current events force me to interrupt my thoughts about the renewed desire for a Constitution for Europe because most of the sports pages of the media have spent gallons of ink on the tenth anniversary of the 13 December 1995 ruling of the European Court of Justice revolutionising the organisation of European football (the Bosman ruling). Politicians, officials and lawyers tend to pay little attention to sports news, not in their professional capacity at any rate. That's a shame in this case because the EU has to take responsibility for its action, both good and bad. Public opinion and the media tend to criticise the EU so frequently for imaginary ills and inexistent powers that it is a good idea not to ignore real ills and real powers.
The headlines for the tenth anniversary speak volumes - Bosman ruling revolutionised sport in Europe - Ten years that shook football - etc, with virtually unanimous agreement that the outcome has been a disaster. Journalists comment and the sports authorities questioned do not challenge the Court's ruling - how could they? They simply state the facts. A few random quotations: 'Perverse effects of application of Bosman ruling: market slippage, explosion of footballers' pay, endemic debt, speculation about the transfer market (of players from one club to another).' Or: 'Concentration of success and financial resources in a handful of clubs and a handful of leading countries' despite 'sporting uncertainty being the main source of creating sporting values'. Third quote: 'Players take advantage but their unemployment rate has shot up'. Fourth: 'In this free market, players' agents take orders and siphon off all the speculative profit'. Fifth: 'the gap between rich clubs and the rest has widened and competitions are losing interest because of this. Many clubs have lost their identity.' The impact is there for all to see. Only competitions between national teams (that the Bosman ruling has not been able to change, despite a few grey areas) have generally remained as they were. Inter-club competition has become pure business. One Milan team often plays without a single Italian player, and one London team without any English players. A Russian oil billionaire has bought a London club and trying to beat down opponents with telephone number transfers and salary deals.
The most serious part. These sports comments are sad enough, but worse is yet to come. The Bosman ruling has largely destroyed the most useful and noble role of football - training teenagers and integrating second and third generation immigrants. The most powerful clubs have boosted the number of football pitches and recruitment, the most shining and praiseworthy example being the Ajax club in Amsterdam, with four dozen full football pitches, premises, equipment, trainers and healthcare managers to boot. This is all free for young people. The club can afford it because it trains its stars itself and has created a legendary Dutch club identity - for Dutch people all around the world. The demands of the flagship team have even been surpassed, enabling Ajax to make profits from the transfer of some players to clubs which are not such smart movers. The results are well-known - Ajax dominated European football for a while, and at the time of the Bosman ruling it still had one of the best teams in Europe. It set an example.
Apart from this exceptional case, possible in a big metropolis, a huge number of medium-sized cities and towns also set up training centres and grounds, funded by transfer fees from sending the best young players to big cities. Until the day when the Bosman guillotine ended the system. The Court of Justice Advocate General dealing with the case (who has since passed away) was a good man, full of good will, who listened to the arguments for and against. He recognised that the club that trains a player is entitled to a training fee to cover the real cost of training the player in question, like football boots and a football or two, perhaps. But he didn't understand that in order to progress, the young players need a whole team behind them, and pitches and trainers. The investigative journalism underlying the articles on the tenth anniversary of the Bosman ruling explain that in most cities today, it is as expensive to enrol a child in a football club as it is for the child to follow tennis lessons or horse-riding! Inner city teenagers have lost one of the rare opportunities open to them to regularly play sport, to learn solidarity with fellow players and respect for the other team, and gain a taste for hard work and discipline. I am distraught at the idea that EU institutions are partly responsible for this decline.
Ignorance about what's different about sport. There were of course many grey areas in the football world before the Bosman ruling: the increasing role of money (inevitable once high level sport required full time players, and partly justified because sporting stars should share in the profits they help produce); the spread of football hooliganism (the UK demonstrated that this could be contained); and so on. But the ruling has had a disastrous impact. Even clubs with full pockets because of support from fans and television rights now tend to look for future stars elsewhere in the world, using networks of talent scouts rather than training up young players themselves (some are now starting to take a more balanced approach). All this was easily predictable, but the EU circles were blind to it, refusing to understand what is different about sport, basing their arguments on two grounds: a) banning nationality-based discrimination, leading them to ban any measures limiting the number of foreign players in a professional football team; and b) applying business contract rules o sport, banning any payment of a fee to the old team by the new team.
I was at pains (starting before the Bosman ruling, in the light of the Advocate General's 'conclusions') to warn against the consequences of ignoring the specific nature of sport, but to no avail, I regret, either within the institutions or in legal milieus. Aurelio Pappalardo, at the time deputy Director General for Competition, warned me that my comments about the Bosman ruling were not taken seriously. Same story at the European Parliament, where I attended a debate dripping in snivelling rhetoric, with footballers connected with a club being described as twentieth century slaves. A courageous man and friend of the sports world at the European Commission, Competition Commissioner Karel Van Miert, was won over by lawyers to introduce the immediate application of the law introducing the right for any team to sign up as many 'EU' footballers as it wanted. Right in the middle of championships that had started under different rules, although on of the main principles of sporting loyalty is never to change rules part way through a competition!
Some principles to be kept in mind. I do not challenge the legal expectations of the Court of Justice - I have neither the knowledge nor the skills to do so. I will simply 'pass' a few remarks about the specific nature of sport. Firstly, the principle of non-discrimination written in to European Treaties cannot be transferred to sport as it is. This is simply obvious. The most despicable of discrimination, discrimination against women, is not discrimination in sport where, on the contrary, the ban on women (with a few exceptions) playing in men's competitions and vice versa protects women athletes and allows them to get as many gold medals at the Olympics as male athletes. Not to mention 'discrimination' based on age or weight even, which is inconceivable, ridiculous even, outside sport. Discrimination on the basis of nationality is necessary in certain cases to ensure the significance and loyalty of sports competitions. Nothing would prevent clubs having the ability to sign up as many 'EU' and assimilated footballers as they like, with the number of non-national players who can play in a match being decided by sports authorities for each competition.
But the legal wall could not be breached and it was in vain that I quoted the wonderful maxim of Cicero's: 'Summa jus, summa injuria' (Extreme law is extreme injustice). I am well aware that some flexibility has since been introduced (Spain has introduced various restrictions on the rights introduced by the Bosman ruling), which the European Commission and the European Court of Justice itself have taken the special nature of sport into consideration in various cases. Footballers have demonstrated wisdom by agreeing to cut some of their telephone number deals wangled by their agents. Football overall is alive and kicking. But the damage caused by the Bosman ruling is genuine, as demonstrated by the research and analysis to mark its tenth anniversary. Next year, the World Championship (to be held in Germany) will no doubt be a success, but for the moment it generally escapes from the repercussions of the Bosman ruling because it is a competition between national teams… In the future, Europe must take account of the special nature of sport and its significance in not only the physical training of teenagers and young people, but also their civil and moral training. In my opinion, the institutions should intervene as little as possible, and limit themselves to distant monitoring of the action of sports organisations, respecting their autonomy as much as possible when it comes to organising sports events.
(F.R.)