Academic journal article The International Sports Law Journal

The Olivier Bernard Case: How, If at All, to Fix Compensation for Training Young Players?

Academic journal article The International Sports Law Journal

The Olivier Bernard Case: How, If at All, to Fix Compensation for Training Young Players?

Article excerpt

1 Introduction

The list of sports-related judgments in EU law was extended in March 2010. The decision of the Court of Justice of the European Union (CJEU - as it has been known since the entry into force of the Lisbon Treaty) in Olympique Lyonnais v Olivier Bernard and Newcastle United (1) deals with payment of compensation in circumstances where a club that has invested in training young players finds that an emerging star wishes to try his luck elsewhere. Against the background of the EU Treaty provisions governing free movement of workers the Court confirms that such restrictions on player mobility may be compatible with EU law - but the particular French rules challenged by Bernard are not. The judgment therefore accepts that sport is 'special', for such arrangements for compensating training would not be found in normal industries, while it uses EU law to confine the space allowed to sporting bodies in shaping their preferred system. But plenty of open questions bedevil identification of precisely what measure of compensation is allowed under EU law, and there may yet emerge frictions between the demands of EU law and the international transfer system painstakingly renovated by football's governing bodies in recent years. The judgment in Bernard is also notable as the first occasion on which the Court has made reference to the new provisions on sport introduced by the Treaty of Lisbon with effect from 1 December 2009. The judgment suggests that Lisbon will not be used by the Court as a basis to adjust its long-standing approach to the subjection of sport to the legal rules of the internal market.

2 The litigation: the road to Luxembourg

At the material time Olivier Bernard was a 'joueur espoir' at Olympique Lyonnais, one of the strongest clubs in French football. The category of 'joueur espoir' covers players between the ages of 16 and 22 who are employed as trainees under a fixed-term contract - one lasting three years in Bernard's case. Before the expiry of that contract Olympique Lyonnais offered him a professional contract lasting one year, but Bernard rejected the offer and instead chose to sign a professional contract with Newcastle United, at the time a leading English club.

The problem was that Bernard's actions did not conform to the charte du football professionnel ('the Charter') which at the time governed the employment of football players in France. The Charter required a 'joueur espoir' to sign his first professional contract with the club that had trained him, if the club so wished. The Charter did not provide for the payment of compensation in the event that the player refused, but it did envisage that the club which had provided the training could bring an action for damages against the 'joueur espoir' under the French code du travail for breach of the contractual obligations rooted in the Charter. This is precisely what Olympique Lyonnais did, and a tribunal in Lyon, finding a unilateral breach of contract contrary to the Charter, ordered Bernard and Newcastle United jointly to pay damages of EUR 22 867.35.

The Cour d'appel in Lyon quashed that judgment, finding that the scheme, which restricted the player's contractual freedom once his training was complete, infringed Article 39 EC, which governs the free movement of workers between Member States of the EU. After all an award of damages in such circumstances, as foreseen by the Charter, plainly serves to discourage a player from exercising his right of free movement. Olympique Lyonnais appealed against that decision. The French Cour de Cassation made a preliminary reference to Luxembourg in July 2008 - by which time Bernard's espoirs were all but exhausted as his modestly distinguished professional career limped to a close. It asked whether the Treaty, specifically the provi sion governing free movement of workers, caught the matter at hand - which it rather obviously did. And, referring to another instance of journeyman footballer turned legal milestone, the famous Bosman ruling (2), it also asked whether 'the need to encourage the recruitment and training of young professional players constitute a legitimate objective or an overriding reason in the general interest capable of justifying' the French scheme - a much more tricky question. …

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