Over a decade has elapsed since Bosman (a relatively unknown Belgian footballer but now a regular on the Question of Sport picture round) put EC free movement law firmly on the Match of the Day agenda.
Over the ensuing years, the European Court of Justice ("ECJ") and the European Commission ("Commission") have articulated (sort of…) clearly that sport does not benefit from some "white card" exemption to the application of EC free movement rules. Further, in 2004, in a case involving anti-doping rules (Meca Medina), the ECJ finally decided to beat the off-side trap to confirm the application of the competition rules to sporting activities which constitute "economic" activities, subject to a recognition of the "special characteristics" of the sporting sector.
International Release: Sporting du Pays de Charleroi, G-14 Groupment des Clubs de Football Européens v FIFA
In an issue which is likely to cause FIFA president, Sepp Blatter, a degree of discomfort (but club managers- particularly any manager of Michael Owen- a degree of hope), the ECJ is due to consider next spring the compatibility of FIFA's rules on international release of players with EC free movement and competition law.
The case was initiated by the G-14, a group of Europe's 18 most powerful football clubs, together with the Belgian club, Royal Sporting Charleroi FC, in the Charleroi Commercial Court in March 2006. Following an injury to a Charleroi player while representing Morocco, the club and the G-14 have challenged the FIFA rule which states that clubs must release players for international matches. Although the domestic court rejected the parties' €860 million request for damages to cover costs incurred due to national match injuries, the issue of the legality of FIFA's rules was referred to the ECJ.
The ECJ will consider the compatibility of the rules with the free movement of workers and services as well as deciding on whether FIFA has been abusing a dominant position in terms of Article 82 of the EC Treaty. FIFA has commented that while it is currently considering reforms to the compulsory release rule (with a system of collective insurance being debated), any amendments to the current system will take quite some time.
The Commission's White Paper on Sport
The case comes against the background of the Commission seeking to ensure a greater EU involvement in sport. In July, the Commission published a "White Paper" on Sport, which outlines a number of action points that the Commission intends to carry out in the coming years such as: (i) analysing rules requiring that teams include a certain quota of locally trained players; (ii) engaging in the fight against doping; (iii) enhancing the role of sport in education and training; and (iv) the development of a European statistical method for measuring the economic impact of sport.
In relation to the application of competition law, the White Paper and accompanying documents do not say anything new and broadly confirm the application of competition law as developed by the ECJ. This is disappointing, as the parameters of EC competition law are not altogether clear (except the clearest of cases) and so, continuing court actions can be expected over the coming years as sport becomes increasingly commercialised. It is clear that the Commission itself is not clear as to the application of EC law to sport and how to interpret and apply the ECJ's decision in Meca Medina.
That said, despite accusations from sports' associations that the Commission has been overly focused on professional football and has largely neglected amateur sport, the White Paper received a warm welcome from Sports Ministers at a recent conference. With particular enthusiasm for the development of a European Sports Forum, sport is on the competition/free movement radar screen whether Sepp Blatter and other sporting regulatory bodies consider it appropriate or not.