Mr Justice Wilberforce was describing not agricultural labourers in the 18th century, but professional football in 1963. Thirty-two years ago, footballer George Eastham successfully claimed against his former club Newcastle United that the player retention and transfer system was an unreasonable restraint of trade. History repeated itself yesterday as Belgian footballer Jean-Marc Bosman took his case against RFC Liege to the European Court of Justice (ECJ) in Strasbourg.
Bosman played with Belgian club Standard Liege until 1988 when he was transferred to RFC Liege for a fee of 3 million Belgian francs. He had a two-year contract with a monthly salary of 75,000 Bfr. After his contract expired, he was offered a one-year contract and a 60% pay cut to 30,000 Bfr per month which he had no difficulty in refusing.
The French club Dunkerque offered him a one-year contract at a monthly salary of 100,000 Bfr, conditional upon "clearance" release, from the Belgian FA. FC Liege and Dunkerque agreed terms for his transfer. Bosman settled in Dunkerque. Soon, however, the two clubs fell out and RFC Liege blocked the necessary clearance certificate and sought the suspension of the player by the Belgian FA. Inevitably, Dunkerque cancelled the player's new contract. Bosman then dramatically switched the venue of his match against REF Liege and the Belgian FA to the law courts.
The Liege judge granted Bosman a "provisional release" under which he could play for any club without a transfer payment being required. He now plays for Vis, an amateur Belgian fourth-division side. In October 1993, the Liege Court of Appeal concluded that, despite his "free" status, Bosman had been boycotted by European clubs most likely to hire him. The Court referred the case to the ECJ in Strasbourg.
The ECJ will consider whether the Treaty of Rome prohibits clubs from charging transfer fees when a player's contract expires, and furthermore whether football's national and international governing bodies can restrict foreign players from within the EC from playing in their competitions. Much is at stake as the ECJ considers these two related but distinct issues.
The European Commission had to give its opinion, which it did in January 1995, deciding that the Belgian transfer system was wrong to impose restrictions on "out of contract" players. If the ECJ backs this decision, it paves the way for competitive market forces to rule the transfer of players - which may apply to England, too - thus opening up the market to footballers' agents, like the ubiquitous Eric Hall.
The beneficiaries of the buoyant English transfer market are the selling clubs. Many clubs need to sell players to balance their books. They will watch the ECJ's deliberations with nervous interest. In their doomsday scenario, they might have to offer their talented players lengthy contracts of five or six years duration - but which can afford to?
The second leg of the ruling sought is even more politically charged. Uefa, European football's governing body, limits the number of non-national players that a club may field, a rule intended to help nurture local talent. In England, for domestic competitions, it does not apply for UK or Irish players. Thus Manchester United may field a team with several Welsh, Irish and Scottish players. But in the European Cup they fall foul of the rule and have to chose between their star players. The European Commission decided this rule is anti-competitive and breaches laws allowing freedom of movement of labour within the EC.
This week's hearing will be followed by the Advocate-General's conclusions, probably in September. The ECJ's decision is not expected before December. But if it goes against the Belgian FA, Uefa will have to rewrite its rule book to enable EU players to move freely between member states. The open question is whether the English FA would have to follow Uefa's lead and amend its rules. If Uefa has to defer to the ECJ, Manchester United may benefit from the skills and application of a player - Bosman - in their quest for European glory without having signed him.
The writer is a solicitor specialising in sports law and a partner in the city law firm Denton Hall.Reuse content