Решение по Делу Босмана, футбольного игрока, (C- 415/93 "Union Royale de Societes de Football v. Jean-Marc Bosman", 1995), является одним из знаковых в мировом футболе.
По делу Босмана, футболисты, у которых истек срок трудового договора с клубом, не имели права перейти в другой клуб до того, как работодатель получит за игрока, так называемую, трансферную сумму или не откажется от получения данной суммы.
До решения по делу Босмана в государствах-членах ЕС действовали разные правила трансферной системы.
Решение Суда ЕС: признать право на беспрепятственный переход футболистов по окончанию контракта из одной команды в другую.
FACT-SHEET ONE:THE BOSMAN CASE, EU LAW AND THE TRANSFER SYSTEM
EU LAW AND FOOTBALL
EU law is of huge importance for the football industry throughout the world. Although the EU accepts the 'specificity of sport', and article 165 of the Treaty of Lisbon makes specific reference to the special nature of sport, it grants no exemption from EU law for the industry. Where purely sporting rules are integral for the sport and are considered proportionate (e.g. eligibility rules for International football) these can be justified, but where rules are either not integral for sport or have a disproportionate impact on EU rights they can be challenged by the Commission or in the European Court of Justice. A number of long standing and traditional football practices have been struck down or fundamentally altered by the European Union (e.g. exclusive or discriminatory ticket selling arrangements, collective TV agreements, anti-competivie practices) and a number of its regulations and practices remain potentially at risk of being declared unlawful.
This factsheet focuses on one specific area of football that has come into conflict with EU Law - the football Transfer System.
THE BOSMAN CASE
The Bosman Case was a legal decision made by the European Court of Justice in 1995. The case challenged 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.
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.
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 - now Art. 39 of the EU Treaty). 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.
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).
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, otherwise they risked losing their players on free transfers. Many smaller clubs could not afford to sign longer contracts with players (especially young players) who may not fulfil their potential so the good players at smaller clubs often were able to move to a bigger club on a free transfer. This meant that some clubs lost revenue from transfer fees, although despite initial predictions, large numbers of clubs did not go into liquidation as a direct result. Some Premier League clubs did however suffer due to having to pay high wages on long contracts upon relegation from the top division.
Secondly, the Bosman case has worked to the players' benefit. Because out of contract players are sought after, the players can demand higher wages, and move to the club that offers the best wages. If effect, the Bosman case has increased ‘player power’ considerably. Now, as in all other industries, the best players have greater control over their own career, and are able to demand wages that many would argue reflect their skills.
POST-BOSMAN CHALLENGES TO THE TRANSFER SYSTEM
In 2000, the European Commission announced that it was taking action against the football authorities because the current international transfer system breaches the right to freedom of movement between E.U. states under the Treaty of Amsterdam, even for players who are still under contract. They argued that footballers who wished to unilaterally break their contract of employment should be able to leave with a term of notice, as employees in other sectors can do, with only a relatively small amount of compensation being paid in return.
This action led to a compromise being reached between the football authorities and the Commission which was ratified by FIFA's executive in summer 2001. The new transfer regulations apply to every player who signed a contract after 1st September 2001 and is involved in an international transfer. They made no reference to the payment of a transfer fee. The regulations are as follows (and are reproduced in more detail on www.FIFA.com):
1: Training Compensation for Players under 23
2: Protection of contracts for the first 2-3 years by - a sporting sanction of a four month suspension for a player who unilaterally breaches their contract within this period - compensation reflecting the wages and period left on the contract of the player in accordance with national law
3: Movement for players only in 2 transfer "windows" a season
4: The creation of an independent and objective disciplinary and arbitration system to deal with contractual disputes and compensation.
THE WEBSTER, MUTU AND METUZALEM CASES
The new transfer regulations, however have been slow in being applied to football and it was only in 2008 that the Court of Arbitration for Sport finally ruled that the new regulations effectively abolished transfer fees for players who were out of their 'protected period' in the case of Heart of Midlothian v Webster and Wigan Athletic, (2008, CAS Decisions: 2007/A/1298-1300). Andy Webster had been a plauyer at Hearts who effectively handed in his notice to Hearts FC and signed for Wigan Athletic. He had served 3 years of a 4 year contract. The SFA’s attempt to prevent the release of his International Transfer Certificate was blocked by FIFA’s player status committee who ruled the player’s actions followed the new rules (because his protected period had expired). Hearts tried to claim a £5m transfer fee for the player. In January 2008 CAS ruled that Hearts could not demand a transfer fee and the actual amount of compensation was £150,000 – which was the residual amount of the contract remaining when Webster resigned. The case appeared to effectively implement the 2001 regulations in the way they were intended. It was thought that as a result of this case, any player who is 2 or 3 years into their contract can resign and move to a club of their choice without it having a pay a transfer fee.
However the decisions of CAS in the cases of Mutu v Chelsea and Shaktar Donetsk v Matuzalem (both 2008) cast severe doubt as to how compensation for unilateral contract breach will be determined. In both cases, CAS awarded huge amounts of compensation to the club that was the victim of the breach that was akin to a transfer fee. If these cases are followed as a precident, rather than the decision in Webster, then it is likely that we will see another case before the European Court of Justice. The ECJ has in fact recently ruled that compensation for training costs is onlyproportionate and legal under EU law if it genuinely reflects the actual amount lost by the contract breach (in the Olympique Lyonnais v Bernard and Newcastle United [2009] ECJ Case C-325/08 case). At the moment the entire issue is clouded with uncertainty.
QUOTA SYSTEMS AND THE HOMEGROWN PLAYER RULES
The current legal situation is that any quotas limiting the number of foreigners (who are EU citizens) from club football are illegal. Direct discrimination on the grounds of nationality is expressly prohibited by EU law and the Commission and ECJ have made it clear that any attempt to bring in the type of quota system that existed before the Bosman case would be challenged. As a result, FIFA was forced to abandon its proposed '6+5' rule in 2010. The situation regarding UEFA's Homegrown Player rule is less clear. The rule is discriminatory under EU law but unlike the Quota System it is indirect, rather than direct discrimination. Therefore it is possible that the system could be justified under EU law if it achieves its objectives of increasing the quality of the academy systems.
THE FUTURE FOR EU LAW AND FOOTBALL
This factsheet has focussed on the impact of Article 45, but of greater significance to football are the rules of Competition Law. EU Competition Law prohibits anti-competitive agreements (Article 101) and prohibits abuse of a dominant market position (Article 102). Since all football's governing bodies are effectively monopolies, this means that they must act reasonably and not abuse their position, otherwise they will be in breach of EU law. In recent years, FIFA and UEFA have been successfully challenged over ticketing policies (France98 and MM2006 Germany) and TV rights for the Champions League and Premiership have been broken down. Article 102 would also mean that any attempt by FIFA, UEFA or a domestic Association to prevent, for example, a breakaway league, would also be seen as unlawful.
FURTHER READING
Ref.: Pearson, G. (University of Liverpool FIG Factsheet) - www.liv.ac.uk/footballindustry/bosman.html
Тамара Шашихина9 марта 2011
Комментарии
Показать все комментарии