Academic journal article The International Sports Law Journal

Freedom of Movement in Relation to Sport

Academic journal article The International Sports Law Journal

Freedom of Movement in Relation to Sport

Article excerpt

Since the mid-seventies it has become clear that sport falls under European Union Law whenever it becomes an economic activity. (1) One major area of EU law that has proved to have sports implications is the free movement of workers. The purpose of this article is to illustrate the legal freedom of movement framework in the EU, specifically as it affects sport. I will also illustrate that situations exist impeding the free movement of workers, or having an impact on the movement of workers. These latter situations particularly involve workers from the 10 new Member States or third-country nationals falling under the conditions as codified in association or partnership agreements with the European Union.

Analysing the status of free movement in sport and adjacent territories will lead to a description of criteria that need to be respected to guarantee the free movement of workers in the European sports sector. I will then question whether these criteria are still being respected in European sport, by looking at some practical issues. If not, are there alternatives to safeguard the free movement of workers in European sport?

Free movement of workers

The free movement of workers is one of the European Union pillars and stems from Article 3c of the EC Treaty:

   For the purposes set out in Article 2, the activities of the
   Community shall include, as provided in this Treaty and in
   accordance with the timetable set out therein: (c) an internal
   market characterised by the abolition, as between Member States, of
   obstacles to the free movement of goods, persons, services and
   capital;

The free movement of workers is founded on the old Article 48 of the EC Treaty, and its use in practice was elucidated in Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on Freedom of Movement for Workers within the Community. (2) To describe the application of the free movement rules to the European sports sector clearly one needs to start with the basis and mention the content of Article 39 (48) of the EC Treaty:

Article 39 (ex Article 48)

1. Freedom of movement for workers shall be secured within the Community.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

a to accept offers of employment actually made;

b to move freely within the territory of Member States for this purpose;

c to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

d to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

To describe the application of the free movement rules in practice one can immediately focus on the European sports sector. The most famous case in the young history of free movement in the European Union is also the most famous case in European sports: the legendary Bosman case.

The Bosnian case (3)

Jean Marc Bosman was an employee of the Belgian RC Liege club and was working under a contract which had almost expired. Before its expiration RC Liege offered him a new contract. But this new offer entailed a substantial reduction in his wages, of almost 75%. Logically, Bosman refused this new offer and as a consequence was put on the so-called 'transfer list'; he needed to look for a new club and his contract with RC Liege expired. Eventually Bosman found a club in the French second division, US Dunkerque, willing to employ him. …

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