In defence of the Bosman Ruling, after thirty years of hurt
Discover a fictional trial imagined by Albrecht SONNTAG, published to mark the anniversary of the Bosman ruling.
After an investigation conducted exclusively by the prosecution, fuelled by an agitated press, the Bosman ruling was condemned by French public opinion with rare unanimity. Thirty years later, the time has come to rectify a historic injustice. Defence plea.
Ladies and Gentlemen of the Jury,
If you have agreed to sit on this jury and to hear the arguments of the defence, it is because you love football — probably sincerely, if not passionately. You have watched its evolution over recent years, perhaps with apprehension, perhaps with concern. And through your reading, through expert commentary, through your conversations, you have learned to detest the Bosman ruling: that decision rendered by the Court of Justice of the European Union on 15 December 1995, widely portrayed as the principal source of the unease that weighs upon twenty-first-century football.
You are mistaken — but no one can blame you. The Bosman ruling has been vilified, cursed, spat upon by club presidents, federation officials, and sports media alike. But were they justified in turning it into their perfect culprit? Does the Bosman ruling truly deserve the opprobrium heaped upon it for thirty years?
These are the questions that my plea intends to address.
A straightforward case
The case C-415/93 brought before the European Court was, in truth, quite straightforward. The plaintiff, Jean-Marc Bosman, requested that the principle of free movement of workers within the European Union be applied to footballers. He won, and from that moment on, a player whose contract had expired could no longer be held hostage by a club on the pretext of claiming a compensatory transfer fee. At the same time, the Court held that the quotas that were in place at that time — limiting the number of foreign players in squads — could not be applied to nationals of EU Member States.
In France, the first point barely raised an eyebrow, for since the 1960s French football had already respected the principle that a player was free to join another club without compensation once his contract expired. Anyone who has ever signed a fixed-term contract in their life will easily understand this — one could hardly imagine employers being authorised to force employees to stay against their will once a contract is over!
It is the second point that attracted criticism — even before the judgement — and has continued to do so for thirty years. It deserves closer examination.
Let us recall that the European Union of 1995 had only 15 members, plus three neighbouring states associated with the Single Market (Iceland, Norway, and Liechtenstein). With the four constituent “football nations” of the United Kingdom, the Bosman ruling therefore concerned only 21 federations — roughly 40% of UEFA’s membership, barely 10% of FIFA’s. Of all the others, the Court of Justice demanded nothing.
On reflection, Ladies and Gentlemen of the Jury, this is perfectly logical. The European Court has jurisdiction only to rule on the application of EU law within the territory of the Union. The Bosman ruling applies solely to the free movement of EU citizens who happen to be professional footballers. Under no circumstances could the Union dictate how Member States regulate access to their territory for nationals of non-EU countries, whatever the profession. Each state manages its own immigration and the granting (or refusal) of work permits and visas.
Unclear intentions
In retrospect — given the very limited scope of the Bosman ruling — the eagerness with which UEFA and national federations embarked on a series of liberalisations (now almost complete) of the player market is puzzling. They were under no obligation to do so under European jurisprudence.
Why, then, did they act as they did? Were they overwhelmed by the events? Hardly a credible hypothesis. These organisations are led by intelligent individuals, many of them lawyers. I cannot help but have the impression that this liberalisation movement was in fact desired by many actors within clubs and within league governance. They were simply hiding behind a piece of legislation that was not, in truth, particularly restrictive — all while humming the familiar refrain of “neo-liberal Brussels imposing its market logic on each and every activity.”
But that refrain is false — precisely when it comes to sport!
A paragraph of the Bosman judgment (number 106) reminds us that the “considerable social importance of sport” warrants taking into account legitimate sporting objectives, justifying certain exemptions. The European Union has adhered to this line ever since, deciding on a case-by-case basis without dogmatism. It approved restrictive measures such as UEFA’s “home-grown player” rule. It tolerated FIFA’s two annual transfer windows. In 2021, during the uproar over the aborted Super League, the EU sided with the defence of the traditional “European sports model.” And in Germany, critics of the 50+1 rule have never dared put into action their perpetual threat of abolishing the rule by taking it before the European Court of Justice — because they know they would lose.
At no point has the European Court called into question quotas on non-EU players. Evidence is provided even by the French LFP, which pursued liberalisation further than most without being required to, but has maintained quotas for certain countries (particularly in South America).
Of course, once a work contract is signed with a non-EU national, European law requires non-discrimination on grounds of nationality. It is at this stage that quotas become problematic — as illustrated by the Malaja ruling, named after the basketball player denied court time for being “one foreigner too many” under the quotas then in force. Yet no law required the club to sign her in the first place.
You may also have heard of the “Cotonou Agreements,” signed between the EU and a group of developing countries — supposedly forcing European football to accept an influx of sub-Saharan or Caribbean players. In reality, these agreements grant no right of entry and no freedom of movement within the EU. They merely protect legally hired workers from discrimination — workers whose employers have voluntarily applied for, and obtained, a work permit.
France – a special case
Ladies and Gentlemen of the Jury, there is no denying that France occupies a special position when assessing the consequences of the Bosman ruling. First, the very large number of players with dual nationality — a consequence of France’s particular historical ties with Africa — distorts statistics. Second, France possesses one of the world’s finest youth training systems, producing outstanding talent who, for a range of structural reasons, is not strongly drawn to the domestic league. Consequently, it is true that the Bosman ruling, applicable to EU Member States such as the UK, Italy, Spain, and Germany, accelerated the exodus of France’s best players.
For lovers of French football, this is regrettable. But to blame the Bosman ruling alone for a lack of competitiveness in European competitions, or for an excess of non-European players in Ligue 1, is to give it a wildly exaggerated significance. It is just as absurd as claiming that the unprecedented triumphs of the French national team since 1998 are primarily due to Bosman enabling top players to toughen themselves in Europe’s biggest clubs.
The truth, Ladies and Gentlemen of the Jury, is that other factors have far greater impact on the widening imbalance within European football: the staggering financial might of the English Premier League, for example, or the inequitable distribution of Champions League revenues — a cash machine that, year after year for three decades, has further widened the gap between a handful of wealthy clubs and the far less endowed remainder.
The truth is also that French football occupies its rightful place. It is not the Bosman ruling’s fault that football in France inspires a passion that is real, yes, but less intense than in some neighbouring countries. You may call this a “sociological disadvantage” rooted in history. It has nothing to do with European law.
The purpose of the law
I conclude, Ladies and Gentlemen of the Jury, with a simple question: What is the purpose of the law in a democracy?
I am deeply convinced that above all else, the law exists to protect the individual from the arbitrary will of those — persons or institutions — who hold power over them. The Bosman ruling fits squarely within this protective purpose. It restored to an individual a right and freedom unjustly denied. If this act of justice produced inconvenient consequences for institutions or economic sectors — so be it! Such consequences merely reveal pre-existing dysfunctions requiring proper reform. It is not the Court’s decision that is blameworthy, but the circumstances that made it necessary.
Accordingly, I ask you to revisit the trial that has been unjustly conducted against the Bosman ruling — the too-perfect scapegoat, hastily condemned to absolve the collective failings of football governance, in France and elsewhere.
This defence was initially published in La revue de l’After, issue 10, autumn 2023.
