A decision of the European Court of Justice (ECJ) from 1995 became known as the Bosman decision (also known as the Bosman decision ) , which on the one hand states that professional football players in the European Union will move to another club free of charge after the end of the contract and on the other hand brought down the restrictions for foreigners in European sport.
The judgment has far-reaching significance for the legal order of the European Union beyond the transfer of athletes. Measured by the following references to judgments already issued by the Court of Justice of the EU, it is the most cited judgment (as of 2011).
The trigger for the underlying action for damages was what Belgian professional footballer Jean-Marc Bosman felt was too high a transfer fee from his employer, RFC Liège , which restricted him in his freedom of movement for workers .
Bosman initially filed a claim for damages against his club and the Belgian Football Association. In November 1990 a Belgian court ruled that Bosman could move to the French second division club USL Dunkirk for free . By contrast, the Belgian Football Federation put citing one. In the appeal hearing on December 15, 1990, the judges upheld Bosman's free transfer. At the same time, the court appealed to the European Court of Justice to create a uniform regulation for the free choice of job within the EU.
Although the European Football Association UEFA initially denied the jurisdiction of the European Court of Justice in matters of football, negotiations on Bosman's claims began in Luxembourg in June 1995 . With the support of the world football association FIFA, UEFA tried to influence the decision-making process through an open letter of protest.
On December 15, 1995 (ECJ RS C-415/93, Slg 1995, I-4921), the ECJ ruled that professional footballers within the EU were normal employees within the meaning of the EC Treaty (since December 1, 2009 TFEU ) and therefore the freedom of movement stipulated there (in particular Art. 45 TFEU, ex-Art. 39 EC) applies not only to official (i.e. state) measures, but also to other regulations that serve to collectively regulate work, i.e. such that regulate a certain area conclusively and comparable to a state law.
The Court of Justice banned all requests for a transfer fee to be paid to change players within the EU after the end of the contract. The regulations in force in some countries, according to which only a certain number of foreigners were allowed to play in a team, were - as far as EU players were concerned - declared invalid.
It was only nine years after the start of the trial that Jean-Marc Bosman was awarded around 780,000 euros in compensation for his early retirement. Today he lives in seclusion in his Belgian homeland on social welfare and financial support from the players union FIFPro . In retrospect, the verdict not only "destroyed my career, but also my private life. Love, satisfaction, quality of life - all gone. It cost me too much."
In the transfer policy of the clubs on the one hand and the ethnic composition of the teams on the other, the profound changes that the judgment had on the sport became apparent. The ruling strengthened the players' negotiating position vis-à-vis their clubs. By eliminating the transfer fees after the end of the contract, the clubs had lost a significant source of financial compensation that would have arisen for them if a contract had expired. If the clubs did not want to let the player in question go without compensation after the end of the contract, they had to convince him to stay elsewhere, which was mainly expressed in higher salaries or other special payments. The same applied to the club change, as the players now saw themselves in the position to compete for the club that offered them the highest financial compensation.
The Bosman decision not only affects football, it also affects the rules governing foreigners in all other professional sports. In ice hockey, players from Finland and Sweden were signed, as well as players from North America of Greek or Italian origin.
Since the start of the 2006/2007 season, the clubs in the German Football League have been allowed to use any number of foreigners from around the world.
Counter arguments from sports associations and national governments
The associations, as well as the Italian and French governments, argued that the transfer rules were justified by the desire to maintain the financial and sporting balance between the clubs and to support the search for talent and the training of young players. It is important to ensure equal opportunities and the uncertainty of the end results. The court countered that the application of the transfer rules did not constitute a suitable means of ensuring the maintenance of financial and sporting equilibrium in the world of football. These rules do not prevent the richest clubs from securing the services of the best players, nor do they prevent the available financial resources from being a decisive factor in sporting competition.
With regard to the foreigner clauses, the associations tried to assert the German, French and Italian governments that corresponding clauses serve to maintain the traditional ties of each club to their country, which is of great importance in order to enable the audience to identify with their favorite team to ensure that the clubs taking part in international competitions actually represented their country. It was noted that the “3 + 2 rule” was developed in cooperation with the European Commission and is therefore in line with leading political bodies in the EU. The European Court of Justice countered this by stating that at the time of the judgment a clear majority of the players no longer came from the respective city or region and that the identification had not been interrupted and that the Commission generally gave no guarantees regarding the compatibility of a certain behavior the European Treaties.
Many sports federations continued to try to argue that the Bosman ruling did not affect them:
- Sports clubs are not commercial enterprises.
However, the Luxembourg judges have shown that a professional club can be compared to a company .
- Local players would have to be protected from too many foreigners.
The Luxembourg judges rejected this, as there were no restrictions on the use of players within a member state.
The Bosman decision in amateur sports
The Bosman ruling has not yet had any impact on amateur sport, as the Treaty on the Functioning of the European Union , on which the Bosman ruling is based (Article 45), does not apply to sport or the like with a cultural connection (Article 167 ) as long as this is not an economic activity i. S. d. Article 2 means.
In 2000, the German Table Tennis Association (DTTB) tried to promote young German players. After the opening of the borders, many foreigners, especially from Eastern Europe, mainly traveled to areas near the border (e.g. Bavaria) in order to play in low-class clubs for comparatively little money. In the opinion of many experts, this meant that the development opportunities for young German players were reduced, as many teams only registered foreigners. The DTTB therefore decided on the following regulation in June 2000: From the 2000/2001 season onwards, the number of registered German players must be at least "team target strength minus two" for classes below the 1st Bundesliga . For example, if the point games are played with a team of six, at least four Germans must be reported. It is up to the clubs whether and how many Germans they actually use in a team fight. Germans are active people with German citizenship and foreigners who have been granted their first license to play in Germany.
The Austrian Alberto Amman, who played for the Saxon regional league club TTC Eilenburg, sued against this. The Federal Court of the DTTB initially upheld this action. It referred to the European Sports Charter of 1992, which stipulates for athletes from the EU: Disadvantages based on nationality must not exist in access to sports facilities or sports activities. In August 2001, however, the Federal Court, headed by Eckart Fleischmann, dismissed the complaint.
- Jürgen L. Born : The consequences of the Bosman judgment from the point of view of the clubs . In: Journal for European Private Law (ZEuP) . Volume 13, 2005, pp. 378-382.
- Eberhard Feess: Bosman and the consequences - what do we learn from empiricism? In: Journal for European Private Law (ZEuP) . Volume 13, 2005, pp. 365-377.
- Katharina Posch: Bosman . In: Stephan Keiler, Christoph Grumböck (Hrsg.): ECJ judicature current. Jurisdiction of the Courts of the European Communities according to policies . Linde Verlag, Vienna 2006, pp. 103-109.
- Rudolf Streinz : The Bosman case: balance sheet and new questions . In: Journal for European Private Law (ZEuP) . Volume 13, 2005, pp. 340-364.
- Michael Parusel: How Greece became European champions - ... and why England is staying at home this time! From Walrave and Dona to Bosman and Kolpak - meaningful contributions to Article 39 of the EC Treaty or is the European Court of Justice consequently wrong? . VDM-Verlag Dr. Müller, Saarbrücken 2008, ISBN 978-3-8364-9942-2 .
- Mattias Derlen, Johan Lindholm: Goodbye van Gend en Loos, Hello Bosman? Using Network Analysis to Measure the Importance of Individual CJEU Judgments . In: European Law Journal . tape 20 , no. 5 , September 1, 2014, ISSN 1468-0386 , p. 667-687 , here p. 673 , doi : 10.1111 / eulj.12077 ( wiley.com [accessed June 10, 2017]).
- FOCUS Online: Private life destroyed: Football revolutionary Jean-Marc Bosman would no longer sue. Retrieved December 21, 2019 .
- Michael Ashelm: Bosman decision: The football revolution . December 15, 2015, ISSN 0174-4909 ( faz.net [accessed December 21, 2019]).
- faz.net Restriction for foreigners in ice hockey with a role model function
- ECJ: Bosman, C-415/93 . December 15, 1995, p. Marg. 105-107 .
- ECJ: Bosman, C-415/93 . December 15, 1995, p. Marg. 123 u. 126 .
- ECJ: Bosman, C-415/93 . December 15, 1995, p. Marg. 131 u. 136 .
- Magazine DTS 2000/7 S. 21
- Rahul Nelson: Judgment of the Federal Supreme Court - How many Germans do we need? , Journal DTS 2000/11 pp. 22-23
- Magazine DTS 2001/9 S. 25