Bernard v. Bosman
Michele Colucci
Bosman versus Bernard
Sport in so far as economic
activity
Free movement of workers
Restrictions regardless of
nationality
Professional to professional
End of (prof.) contract
Sport in so far as economic
activity
Free movement of workers
Restrictions regardless of
nationality
Amateur to professional
End of (amateur)
contract/training
2
Bosman versus Bernard
Transfer fee
To be paid by new club
Limitation of free movement
Justification possible
But violation
ALTERNATIVE MEASURES
NO TRANSFER FEE BUT
Openings for training
compensation
Damages
To be paid by player
Limitation of free movement
Justification possible
Proportionate
But violation
Openings for training
compensation
3
Bosman versus Bernard
“106. In view of the
considerable social importance
of sporting activities and in
particular football in the
Community, the aims of
maintaining a balance between
clubs by preserving a certain
degree of equality and
uncertainty as to results and of
encouraging the recruitment and
training of young players must
be accepted as legitimate.
“39. In regard to professional
sport, the Court has already had
occasion to hold that, in view of
the considerable social
importance of sporting activities
and in particular football in the
European Union, the objective of
encouraging the recruitment and
training of young players must
be accepted as legitimate (see
Bosman, paragraph 106).”
4
Bosman versus Bernard
“108. As regards the second
aim, it must be accepted that the
prospect of receiving transfer,
development or training fees is
indeed likely to encourage
football clubs to seek new talent
and train young players.”
“41. In that regard, it must be
accepted that, as the Court has
already held, the prospect of
receiving training fees is likely to
encourage football clubs to seek
new talent and train young
players (see Bosman, paragraph
108).”
5
Bosman versus Bernard
“108. As regards the second
aim, it must be accepted that the
prospect of receiving transfer,
development or training fees is
indeed likely to encourage
football clubs to seek new talent
and train young players.”
“41. In that regard, it must be
accepted that, as the Court has
already held, the prospect of
receiving training fees is likely to
encourage football clubs to seek
new talent and train young
players (see Bosman, paragraph
108).”
6
Bosman versus Bernard
“109. However, because it is
impossible to predict the
sporting future of young players
with any certainty and because
only a limited number of such
players go on to play
professionally, those fees are by
nature contingent and uncertain
and are in any event unrelated
to the actual cost borne by clubs
of training both future
professional players and those
who will never play
professionally.”
“42. The returns on the
investments in training made by
the clubs providing it are
uncertain by their very nature
since the clubs bear the
expenditure incurred in respect
of all the young players they
recruit and train, sometimes over
several years, whereas only
some of those players undertake
a professional career at the end
of their training, whether with the
club which provided the training
or another club (see, to that
effect, Bosman, paragraph
109).”
7
Bosman versus Bernard
109. “The prospect of receiving
such fees cannot, therefore, be
either a decisive factor in
encouraging recruitment and
training of young players or an
adequate means of financing
such activities, particularly in the
case of smaller clubs.”
44. (…), the clubs which
provided the training could be
discouraged from investing in
the training of young players if
they could not obtain
reimbursement of the amounts
spent for that purpose where, at
the end of his training, a player
enters into a professional
contract with another club. In
particular, that would be the
case with small clubs providing
training, whose investments at
local level in the recruitment and
training of young players are of
considerable importance for the 8
social and educational function
TRAINING COMPENSATION?
THE PRINCIPLE
PARA: 45 “a scheme providing for the payment of
compensation for training where a young player,
at the end of his training, signs a professional
contract with a club other than the one which
trained him can, in principle, be justified by the
objective of encouraging the recruitment and
training of young players. However, such a
scheme must be actually capable of attaining
that objective and be proportionate to it, taking
due account of the costs borne by the clubs
in training both future professional players
and those who will never play professionally
(see, to that effect, Bosman, paragraph 109).
AG in Bernard
52. First, since only a minority of trainee players will prove
to have any subsequent market value in professional
football, whereas a significantly greater number must be
trained in order for that minority to be revealed,
investment in training would be discouraged if only the
cost of training the individual player were taken into
account when determining the appropriate compensation.
It is therefore appropriate for a club employing a player
who has been trained by another club to pay
compensation which represents a relevant proportion of
that other club’s overall training costs.
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AG in Bosman
“237. The transfer fees cannot be regarded as
compensation for possible costs of training, if only for the
simple reason that their amount is linked not to those
costs but to the player's earnings.”
(…)
“Any reasonable club will certainly provide its players with
all the development necessary. But that is expenditure
which is in the club's own interest and which the player
recompenses with his performance. It is not evident why
such a club should be entitled to claim a transfer fee on
that basis.”
12
AG in Bosman
“239. That does not mean, however, that a
demand for a transfer fee for a player
would, following the view I have put
forward, have to be regarded as unlawful in
every case.”
13
AG in Bosman
Such rules would in my opinion have to comply with:
– First, the transfer fee would actually have to be limited to the amount
expended by the previous club (or previous clubs) for the player's training.
– Second, a transfer fee would come into question only in the case of a first
change of clubs where the previous club had trained the player.
– Analogous to the transfer rules in force in France, that transfer fee would
in addition have to be reduced proportionately for every year the player
had spent with that club after being trained, since during that period the
training club will have had an opportunity to benefit from its investment in
the player.
– Moreover, it is not certain that even such a system of transfer rules could
not also be countered by Mr Bosman's argument that the objectives
pursued by it could also be attained by a system of redistribution of a
proportion of income.
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Summary
Training compensation can be adequate (ECJ Bernard)
Compensation of real training costs (ECJ Bernard)
Criteria determined in advance (ECJ Bernard)
Paid by player / club (AG Bernard)
Relevant proportion of overall training cost (AG and ECJ
Bernard)
Pro rata for training clubs (AG Bernard)
Development is also in interest clubs (AG Bosman)
Only in case of first change / reduced in time (AG
Bosman)
Not make free movement impossible (proportionality)
(Bosman, Bernard)
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