Contract to kill

Like it or not, the Bosman law is now always with us. And the European Commissioner responsible for enforcing the judgement foresees more upheaval just around the corner, as Philip Cornwall investigates

There are two problems with covering the Bosman ruling. Firstly, like the Venables saga it is endlessly technical, has nothing to do with anything which is remotely attractive about following football and has no end in sight. Secondly – like the Venables saga – it requires acceptance of the world as it is, not as one would like it to be.

This appears, finally, to be getting through to UEFA, at least according to Padraig Flynn, the European Commissioner responsible, among many other things, for making sure that no-one tries to extort the odd illegal transfer fee. “Initially, the reactions to the judgment were mixed . . . very mixed. But I would think now that everyone has come to understand the ruling and they have accepted the implications in full.”
Collectively, they may be resigned to the ruling, but there are still a few embarrassingly ignorant voices of wistful dissent. The morning after the UEFA Cup Quarter-Final second legs, Gerhard Aigner, UEFA’s Secretary General, was in Brussels talking to a committee of the European Parliament. He cited Bayern Munich’s 5-1 victory over Nottingham Forest as proving that there was no need for foreigners to play in European club competition, saying that Bayern had not used any non-Germans and that this was proof that it was better to have only nationals in your  team . . . at which point a French MEP drew attention to Jean-Pierre Papin. Others pointed out that Christian Sforza and Andreas Herzog were, respectively, Swiss and Austrian. Aigner had the decency to blush.
Commissioner Flynn is still confident that, at least as far as the Bosman judgment explicitly goes, co-operation will be forthcoming. “Everyone was aware of the kind of line that was being taken, because the Advocate General’s opinion which came out before the judgment did point clearly in Bosman’s favour.” However, Europe has not finished with football – while the judgment did let everyone know where they stood on one issue, there was a major omission which opens up a whole new area of doubt: “I would say the authorities may have been surprised that the judgment only dealt with Article 48 of the Treaty of Rome, on the free movement of workers, and did not deal with Article 85, which deals with competition. That limits everyone’s room for manoeuvre – and everyone was a little surprised by that, and that includes me.
    “(So) it is a somewhat open question as to whether transfer fees for out-of-contract players moving within individual countries will survive. The Bosman ruling itself does not affect purely domestic transfers; but it establishes a dual system, where cross border transfers are conducted under a more favourable regime than purely domestic transfers, and I don’t believe that such a dual system is sustainable, certainly not in the long term. And while the court judgment did not specifically mention Article 85 on competition, it did not rule out the application of Article 85 to the transfer system. So even domestic transfers could be contrary to Article 85. Commissioner Karel Van Miert (in charge of competition policy) has already made clear that the Commission might in future need to look in more detail at that particular question. I would think that sooner or later the question about the competitions rules of Article 85 are going to have to be brought into play. I think then the grey area will be resolved.”
Until a case is brought under competitions law, the dual system will operate – unless someone can find a way round it. For instance, the ‘Club of Convenience’ idea, floated by Glyn Ford MEP in WSC No 109, whereby a player spends time in another EC or European Economic Area country before returning to Britain, by means of two free transfers under the precedent established by Bosman. And what Commissioner Flynn says on this issue could have serious implications for all those players whose contracts expire at the end of the season:
“There is no time limit specified in the Treaty for workers to invoke Article 48. In order to do so, they would have to genuinely go to work in another Member state. If it was tested, and it was found that it was purely being done to circumvent transfer regulations then I don’t know how the court would look at that. You probably couldn’t just go for a day. If you have a two year contract, then you couldn’t have a one-week contract abroad. But if you have a week-to-week contract and went somewhere for a month… It’s the circumstances of each case which will determine if it is a genuine move.”
Many players whose contracts expire at the same time as England’s Euro ’96 hopes will wind up on week-to-week contracts if they don’t find another club willing to pay a transfer fee for them. The key to whether someone will then try such a move is this: will a player be able to carry on playing for his new club in the two years it would take the case to come to the European Court? Few will feel like Bosman, that it is worth taking the time out of a short footballing career to pursue the case. Stephen Quest of Padraig Flynn’s cabinet, though, believes that the player would be able to carry on playing – in other words, that the case would have to be brought to stop someone playing on, by the club he was leaving, rather than it being an application by the player to be allowed to join a new club.
As with many things Bosman, this isn’t something we would necessarily see as a Good Thing for football. Everton, however, considered using an Irish club of convenience, Home Farm, in order to get around the Department of Employment’s attempt to stop Marc Hottiger moving within Britain – although he hadn’t played enough games for Newcastle for an internal move, Hottiger had played enough times for Switzerland to meet the entry/re-entry criteria. So the concept is already a familiar one. It can surely only be a matter of months – or even weeks – before a player on a week-to-week spends a month player-coaching in Ireland . . .

From WSC 111 May 1996. What was happening this month