"Bosman should not be seen as a bible." (1)
The name of one journeyman Belgian footballer, Jean-Marc Bosman, has become considered synonymous with the revolution that has taken place in association football. During each summer, between the end of one football season and the start of the next, the media is full of Bosman's name. This is not because of great sporting achievements or of field heroism, but because of the implications of the case that Bosman brought against football's regulations and governing bodies. What might otherwise have been referred to as a 'free' or 'out of contract' transfer has indelibly become the 'Bosman'. This case--and the modifications imposed upon the football transfer system subsequently (2)--have had implications not confined to that particular sport. In fact any professional sport operating in the European Union will almost certainly have had to review its practices in the light of the judgment.
The details of the case are well known, and will not be considered in great depth. Nevertheless, it is worthwhile briefly outlining the two main issues in the case.
Bosman and its impact
In Union Royale Belge des Societes de Football Association ASBL v. Jean-Marc Bosman (3) (Bosman) the European Court of Justice (ECJ) outlawed the imposition of transfer fees upon the expiry of a footballer's playing contract. The second element of the Bosman judgment was the prohibition of player quotas based on nationality, having the effect of preventing EU nationals from obtaining employment with professional teams abroad.
One immediate consequence of the judgment in Bosman was that the significance of holding the passport of an EU Member State grew immensely for professional sportsmen as this represents the key to freedom of movement within the European Union. This came about because of the relatively simplistic response of many sports governing bodies to the judgment; where sports had previously placed quantitative limitations on non-domestic nationals there were now limits placed on non-EU or EEA nationals participating in professional sport. Acquisition of this status effectively allows a third state national to sidestep the nationality requirements imposed by sporting federations, as well as any onerous immigration or work permit requirements which states may impose on incoming workers. Indeed some players and agents were driven to deception and forgery in order to secure access to the freedoms afforded under the Treaty of Rome. (4) A 'recent example of the importance of obtaining EU 'citizenship' is provided by Brazilian striker Julio Baptista, a transfer target for Arsenal, who declined the opportunity to move to the English club in favour of staying in Spain with Real Madrid. His choice was partly premised on the basis that he would then satisfy the qualifying period for Spanish citizenship and the corresponding capacity to freely obtain employment within the Community.
Access to Community law rights of free movement has been extended by the decision of the ECJ in the case of Deutscher Handballbund v Maros Kolpak. (5) Kolpak, a Slovakian handball player, was employed as a professional by a German team. As a Slovak, a national of a State not then a member of the EU, Kolpak was not considered subject to the non-discrimination provisions emanating from Bosman. The Handballbund limited the number of non-EEA nationals teams could field in professional fixtures. Kolpak considered that an association agreement between Slovakia and the European Union entitled him to be treated in the same way as an EEA national in relation to treatment once in employment. The European Court of Justice agreed that the relevant part of the association agreement was capable of direct effect, that is being applied by a EEA Member State court, and thus sporting bodies could not discriminate against Kolpak once in legal employment within an EEA Member State. (6) The EU has a small number of association agreements with other European nations, many of which have since joined the EU. However, the 'Cotonou Agreement' has given the ruling the potential for a significantly greater impact. The Cotonou Agreement is an international agreement signed between the EU and nations from the ACP (Africa, Carribean, Pacific) Group, which now includes more than 70 nations. Article 13(3) of the Cotonou Agreement includes similar provisions to those applied in Kolpak, potentially expanding the reach of the Kolpak decision to 100 states. (7) Although concerning handball, the decision has been of particular significance to other sports, not least cricket and the rugby codes in the UK context. In respect of cricket, the Cotonou Agreement extends the non-discrimination obligation to Test playing nations: South Africa and the states making up the West Indies. The inclusion of South Africa and the South Sea Islands have provoked most concern amongst the rugby codes. (8)
It is significant that the Kolpak ruling applies only to the treatment of players once in lawful employment in an EU member State, it does not extend to a right of entry or access to employment or free movement between EU Member States. (9) However, the judgment has effected a shift in regulatory responsibility away from sporting federations to State authorities, which have control of work permit provision. This represents the key to the Kolpak approach, as the capacity to enter into lawful employment is a prerequisite to engaging the rights coming from the judgment.
The UK government has recently taken action to limit access to work permits by sports professionals. Sports federations in the UK face particular problems because of the overlap between Kolpak countries and those making up the Commonwealth. Citizens of Commonwealth nations are given preferential treatment by the UK government, allowing them to undertake employment as part of a 'working holiday' for up to two years. It was feared that such easy access to work permits, combined with the Kolpak freedoms, would effectively open up the market for professional sports persons in the UK, leading to an influx of 'foreign' players. The government has responded to this by amending the conditions of the Commonwealth citizens working-holiday work permit scheme to expressly disqualify such workers from engaging in employment as sports professionals. (10) More specifically, the Home Office works with sports governing bodies to construct specific arrangements for professionals within individual sports. As the Kolpak position only applies to workers once they are in employment, (11) these filtration systems are of great importance to sports governing bodies. (12)
The Kolpak judgment is of such significance primarily because of the response of sports federations to the ECJ's rulings in Bosman. The typical reaction was the relatively simple amendment of qualification rules such that where previously there had been restrictive measures imposed in respect of 'foreign' players these were simply amended to refer to non-EEA players. After Kolpak the approach seems to have been much...