1.5.b.2°. The economic internationalization of the
European clubs like consequence of
the stop Bosman (C-415/93 of December 15, 1995).
The Bosman stop returns in the name of the Belgian player,
who, in 1990, at the end of his contract of player to Royal Football Club of
Liege, considering refusing freedom to carry the shirt of his new club, in
fact, the French Club of Dunkirk, by his old club, what it rejected an offer of
the latter club to continue to play with the help of wages lower than that that
it gained when the contract was still in force.
Bosman carried the business in front of the courses and courts
Belgian in front of which, it pled the illegality of the system of the
transfers of the players at the end of the contract, and thus its contradiction
with the Treaty of Rome, constitutive of current European Union.
Become, like professor Késenne (2000, p. 95) writes it,
the victim of a world boycott by the federations of Belgian and international
football, Jean Marc Bosman had to wait during long years of misery, the
decision of the European court of Justice, in answer to the prejudicial
question subjected to him by the Court of Appeal of Liege tending to knowing if
it were possible to observe the rules of the European Community legislation to
the sport.
The response of the European Court pointing out the economic
nature of the activity of the sport, and thus its tender, except with regard
to, the case where the sport plays a purely sporting part, to all the legal
arsenal already into force, led to the abolition of the allowances of the
transfers, in particular for the players end contract and thus, the
proclamation, even in the sporting field, of the principle of freedom of
movement of the players amenable to the union in European space, as was already
the case for the other workers.
But, in what, this stop was it to have a decisive incidence on
the transfer, and particularly on the internationalization of this practice in
football ?
For apprehending well the range of the question and answer
which will be followed from there, it is necessary to point out the notable
distinction which BOROUGH and GOUGUET (1998, PP-129-132) make, between the
clubs maximisateurs of profits and the clubs maximisateurs of sporting
performances.
The first have the legal structure of commercial companies,
because they achieve, through all the sporting operations, of the acts
considered commercial by the consequent laws their respective countries. Much
more, when well even they would have the statutory appearance of
non-profit-making associations, the constant and repeated practice commercial
acts qualified by the law would not confer less the attribute to them of
commercial companies. Such clubs enjoy a great freedom as regards transfer on a
market related to commercial. They buy and sell the players on the market of
the transfers, and the talents concentrate in rich clubs. The clubs are thus
Masters of the players and they pay the latter by taking account of the other
players not really transferable, but who render enormous services to the club.
It acts like the American clubs. In Europe, on the other hand, the clubs are
especially worried by the research of success, because, continue the above
mentioned authors, following the nature of the sporting groupings (for the
majority with nonlucrative goal), with the existence of recurring deficits in
many championships and to a traditional culture of unit of the sport (amateur
and professional) melting an ethics, the clubs attempt to constitute the best
possible team in order to gain the greatest number of meetings. With this
intention and, within the limit of the budget, a policy of recruitment of the
best talents is implemented, much more than on the assumption of maximization
of the profits.
However, it is made that with the interpenetration of football
business in Europe, the clubs initially misaient to preserve and consolidate
their success, but at the same time, they realized that football got beyond the
success, some financial repercussions which, of the blow, became, more and
more, their concern. The discovery of this news gives which was tested in
particular by the purchase of the players and their resale, in the hope, often
reached important financial appreciations knows a brake with the Bosman stop,
which preaches freedom of movement of the European players end contract, i.e.,
the absence of any allowance of transfer for this category of players.
But, Europe not being only space provider of young players,
the clubs quickly thought of Africa where the acquisition of the players does
not cost them much money, and in the Latin America, where, the preceding reason
applies mutatis-mutandis and whose success of certain nationals in European
championships could inspire only confidence and recourse. That, because the
leaders of these clubs know that for nonEuropean subjects, provisions of the
Community right and jurisprudence
are not opposable for them, as let it know Mr. David H. WILL
more
(1999, p. 7) (The viewpoint federations one the new transfer
rules, in Késenne S., Jeanrenaud C., COp cit., p. 7) :
« this is something that we in Europe tightens to forget, Bosman does
apply only in Europe, and only to has share off Europe ; the rest off the
football world continuous virtually unaffected by it ».
This way, since «many clubs of football in Europe
incorporated always the value of transfer of their players like a credit and
used this credit as banker's guarantee for their loans »
(Késenne S., 2000, p. 97), currently, these clubs simply moved the
context of application of logic. Instead of doing it for the European subjects,
for which the transfer is not more advantageous than it was it formerly, they
do it for the young sportsmen come from apart from Europe from the Nations,
insofar as, in addition to the abolition of the old system of the transfers,
the European Court of justice establishes the nullity of the clause of
nationality, which limited the number of the foreign players in the European
clubs to to the more three. Therefore, intensification of the international
transfer operations,
involve also the increase in the international mobility of the
work, which, like remarks it professor Késenne (ibidem), constitutes a
mechanism of natural balancing to which all the sectors must face the
increasing globalisation of the economy. Moreover, it is noted that the force
of the transfers is dependant on the effectiveness of its market : the
mercato.
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