Dionyssis G. Dimitrakopoulos
More Than a Market? The Regulation of
Sport in the European Union1
EXISTING ANALYSES OF THE ROLE OF IDEAS ­ DEFINED HERE AS
`principled beliefs' that `specify criteria for distinguishing right from
wrong and just from unjusť and `translate fundamental doctrines
into guidance for contemporary human action'2
­ in the policy
process portray them as significant factors that affect political outcomes.
Ideas do so (1) by providing `road maps' that guide political
action; (2) by establishing focal points that resolve problems in cases
of multiple equilibria; and (3) through the institutions that embody
them.3
This is unsurprising given that `politics finds its sources not
only in power but also in uncertainty-men collectively wondering
what to do . . . Governments not only "power" . . . they also puzzle.
Policy making is a form of collective puzzlement on society's behalf;
it entails both deciding and knowing', as Hugh Heclo put it.4
If this is
so in the embedded context of the nation-state, demand for guidance
is likely to be stronger in the evolving system of the European Union
(EU) where policy traditions, national and transnational interests
and institutional logics often clash. This demand is unsurprising
because integration often proceeds by means of the implementation
of broad principles (such as the free movement of goods, services,
capital and people) in specific areas of activity, even when the latter
are not explicitly mentioned in the relevant EU legislation. This is
1
The author is grateful to Philippe Marlire, Argyris G. Passas and the referees of
this journal for stimulating comments. The usual disclaimer applies. The research
reported here has been funded by the European Commission through a Marie Curie
Post-Doctoral Fellowship held at the University of Oxford.
2
J. Goldstein and R. Keohane, `Ideas and Foreign Policy: An Analytical Framework',
in J. Goldstein and R. Keohane (eds), Ideas and Foreign Policy, Ithaca, NY, Cornell
University Press, 1993, p. 9.
3
Ibid.
4
H. Heclo, Modern Social Politics in Britain and Sweden, New Haven, CT, Yale
University Press, 1974, p. 305.
Government and Opposition, Vol. 41, No. 4, pp. 561­580, 2006
 The Author 2006. Journal compilation  2006 Government and Opposition Ltd
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main
Street, Malden, MA 02148, USA.
when a comparatively high degree of uncertainty as to how far
change ought to go increases demand for guidance that can stem
from ideas and the broader, historically defined normative order.
This article seeks to explore this process and draws empirical
material from the regulation of professional sport in the EU. This is
not a core area of concern for the EU but one in which the EU
became intensively involved in the 1990s. The article focuses specifically
on the regulation of the system of international transfers in
football because the involvement of the EU in this area exemplifies its
activity in other areas of sport-related regulation5
namely, the reliance
on Treaty-based provisions regarding competition policy6
for
the regulation of a sector that, as key actors see it, is a `special case' ­
sport, they argue, is much more than an industry, or a market.
The article advances two claims. First, the notion that sport is
much more than a mere economic activity has guided and limited the
EU's involvement in the regulation of this activity. Second, this happened
not only because this idea is deeply embedded in the traditional
regulation of sport in Europe, but also because it had powerful
`carriers' who, despite their unwillingness to see the EU become
involved in this area, were forced to forge an uneasy compromise with
the promoters of change. In that sense, this article seeks to add to a
growing body of literature that highlights the political relevance of
ideas in general, and (1) their role as `weapons'7
as well as (2) the
relative importance of their `carriers'.8
The importance of this case study for our understanding of the
broader policy process is twofold. On the one hand, the development
of the EU has created a new opportunity structure that has generated
new constraints and opportunities both for public and private actors.
On the other hand, far from being the `runaway Eurocracy' often
depicted in both the academic literature and the media, the EU's
institutions (in this case the Commission) often have to contend with
immaterial forces that guide and constrain political activity. As a
result, institution- or power-based analyses of the politics of integration
ought to take into account ideational factors. In more general
5
S. Weatherill, ` "Fair Play Please!": Recent Developments in the Application of EC
Law to Sporť, Common Market Law Review, 40 (2003), pp. 51­93.
6
For an overview see R. Parrish, Sports Law and Policy in the European Union,
Manchester, Manchester University Press, 2003, ch. 5.
7
M. Blyth, Great Transformations, Cambridge, Cambridge University Press, 2002.
8
K. Sikkink, Ideas and Institutions, Ithaca, NY, Cornell University Press, 1991.
562 GOVERNMENT AND OPPOSITION
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terms, this article seeks to contribute to a growing body of literature
that highlights the importance of ideational factors for the explanation
of political phenomena by putting forward the argument that
these factors do not eliminate political agency; rather, they channel
it.
IDEAS AND THE POLICY PROCESS
The growing interest in the impact of ideational factors on the policy
process is an important development in the study of politics in
advanced industrialized societies. Ideational factors have been conceptualized
in a number of ways9
varying from cognitive frames and
norms to expertise and beliefs, but existing analyses typically stress
the importance of the normative and the cognitive aspects of these
factors. Thus, ideational factors have been shown to affect the definition
of actors' interests and strategies as well as the outcomes of
political battles.10
Although the autonomous impact of these factors
has been contested by those who claim that it is, at best, epiphenomenal
(i.e. it covers more consequential factors such as interests), the
real challenge for the exponents of ideational analyses is to reconcile
their arguments with the notion of agency. For that purpose, ideasbased
arguments must be tested in a variety of settings in addition to
(and beyond) the crystallized structures of the nation-state.
The EU provides an interesting testing ground. A product of
purposeful actors (nation-states), it has become a new opportunity
structure that affects both its creators and other, non-state, actors.
Given that integration has hitherto privileged the removal of barriers
to economic activity, the issue arises as to the way in which sectoral
peculiarities are taken into account (if at all). From the perspective of
the national governments this is an important issue because they are
often held to account for EU policies that they control only imperfectly.
They are often faced with competing demands that call for
9
R. Hansen and D. King, `Eugenic Ideas, Political Interests and Policy Variance:
Immigration and Sterilization Policy in Britain and the U.S.', World Politics, 53 (January
2001), p. 238; and John L. Campbell, `Ideas, Politics, and Public Policy', Annual Review
of Sociology, 28 (2002), pp. 21­38.
10
See, for example, M. Finnemore, National Interests in International Society, Ithaca,
NY, Cornell University Press, 1996; S. Berman, The Social Democratic Moment, Cambridge,
MA, Harvard University Press, 1998.
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value judgements. These judgements must, however, be made in a
specific context underpinned by material (e.g. institutional) and
ideational factors.
The EU, like all organizations facing a novel decision situation,
typically uses its existing standard operating procedures and institutional
repertoires.11
These are adjusted only marginally when that is
deemed to be required. This is often the case in the European
Commission's use of its powers in the field of competition, which
often leads public and private actors to realize that a given practice is
simply untenable and must be changed. However, deciding how the
EU ought to deal with such cases once they appear on the agenda
and, in particular, how far it can (or even ought to) go is much less
straightforward. Its activity is shaped by wider social, political, economic,
and other considerations. This is especially so in cases where
the market has evolved and developed new practices that are not
regulated, when there is no regulatory framework at all ­ national or
European ­ to build on or when there is conflict between existing
national regulation and EU legal provisions. The role of ideas can be
important in cases of this kind.
In that context, the European Commission is mandated by the
Treaty to assess the unique characteristics of the economic activity in
question and act accordingly. Hence, it must identify and interpret
the requirements of a given economic activity and reconcile them
with the principles enunciated by the Treaty. The Treaty allows the
Commission to choose an appropriate method of action, but how far
can it go in implementing a provision of the Treaty in a specific case?
This is the cardinal difficulty that the Commission faces in implementing
broad Treaty provisions in previously untested areas.
Ideas affect this process through their operational and political
characteristics. Some ideas are easier to put into effect than others,
because (1) they resonate more with the cardinal characteristics of a
given decision situation and (2) they are embedded in the standard
operating procedures of given political actors. On the other hand,
the political appeal of ideas relates primarily to their capacity to (1)
legitimize some forms of political action (but not others) and (2)
facilitate the creation of coalitions of political actors.
The next section focuses on the reform of the system of transfer
regulations in European professional football. The now famous
11
J. March and J. Olsen, Rediscovering Institutions, New York, Free Press, 1989.
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Bosman ruling of the European Court of Justice (ECJ) highlighted the
incompatibility of the previous regime with key provisions of the
Treaty and rendered change unavoidable, but it did not resolve a key
issue. How far should change go and how should the Commission ­
the `guardian of the Treaty', apply the principles of the free movement
of workers and the free provision of services to the area of
professional sport where there was no sport-specific Treaty provision
and no secondary EU legislation (directive, regulation, decision)?
The analysis that follows is an attempt to demonstrate that the
socially constructed and institutionalized idea that sport is both a
professional/economic activity as well as an educative, social and
recreational one has guided, legitimized and constrained the role of
the Commission and has also affected the new system of transfer
regulations.
THE REFORM OF EUROPEAN TRANSFER REGULATIONS
The Pre-Bosman Era
Until 2001, European professional footballers did not have the right
to `resign' from one `job' with one club and find another while their
contract was in force. Indeed, unlike most professionals working in
the EU, they either had to wait until the end of their contract12
or a
freely agreed transfer fee had to be consented to between the two
clubs. This system contravened the free movement of workers and
the provision of services, i.e. two fundamental principles of the single
European market. However, the European Commission did not
utilize its powers of guardian of the Treaty (Article 226/169) against
this practice because doing so would imply that professional football
was merely an economic activity like any other that is regulated by EU
law. The idea that sport in Europe is much more than a mere economic
activity was at the heart of the Commission's action during the
1990s. Indeed, it was this idea that both guided and limited the
executive role of the Commission in its attempt to resolve a conflict
between broad provisions of the Treaty and historically defined
practices.
12
Prior to the Bosman ruling they were not allowed to switch clubs freely even after
the end of their contract.
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The free movement of workers and the free provision of services
were at the heart of the process of economic integration that was
re-launched in the mid-1980s. These principles were to be implemented
in a gradual, incremental manner.13
Indeed, Article 63 of the
Treaty of Rome stipulated that the abolition of restrictions to the free
provision of services should follow a programme setting out the
general conditions under which and the stages by which each type of
service was to be liberalized. This reflected the need to take into
account service/sector-specific peculiarities and requirements.
Nevertheless, professional football remained outside the remit of
this legislative programme, for three reasons. First, Article 63 of the
Treaty gave priority `to those services which directly affect production
costs or the liberalization of which helps to promote trade in goods'.14
Second, the economic dimension of professional football had not yet
acquired a high profile. Finally, the very idea of the involvement of
the EC/EU in this area of activity was problematic because the Treaty
contained no corresponding specific provision. This view was also
supported by the jurisprudence of the ECJ.
Indeed, when a Dutch court asked the ECJ to decide in 1974
whether the Treaty applied to sport, the ECJ ruled that `the practice
of sport is subject to Community law only in so far as it constitutes an
economic activity within the meaning of Art. 2 of the Treaty'.15
The
ECJ subsequently reaffirmed this view16
and specified that Treaty
provisions `do not prevent the adoption of regulations or of a practice
excluding foreign players from participation in certain matches
for reasons which are not of an economic nature, which relate to the
particular nature and context of such matches and are thus of sporting
interest only'.17
This jurisprudence of the ECJ is of cardinal importance for two
reasons. First, the ECJ accepted that sporting activities have more
than a mere economic dimension, but it did not define their
13
Articles 48, 49 and 59 of the Treaty.
14
Added emphasis.
15
Case 36/74, Judgment of 12 December 1974, Walrave and Koch/Association
Union Cycliste Internationale and others, European Court Reports (1974). See also
Parrish, Sports Law, pp. 85­7.
16
Case 13/76, Judgment of 14 July 1976, Dona/Mantero, European Court Reports
(1976); Case 222/86, Judgment of 15 October 1987, Unectef/Heylens, European Court
Reports (1987), 4097.
17
Case 13/76, paras. 12, 14, added emphasis.
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characteristics. Second, the ECJ accepted that when the Treaty
applies to the economic dimension of sport, exemptions are acceptable
to the extent that they are based on the `particular nature and
contexť of the relevant activities. For example, competitions between
national teams that, by definition, exclude foreign players are acceptable
under EC/EU law. These two aspects of the jurisprudence of the
ECJ are causally linked. Exemptions enunciated by the Treaty are
acceptable precisely because of the specificity of sporting activities that
have both an economic and other dimensions.
At the same time, central aspects of the organization of sporting
activities clearly violated Treaty provisions. In the past, professional
football clubs were not allowed to employ more than two foreign
players, even if these players were citizens of a member state. This
regulation breached the free movement of workers and the free
provision of services enunciated by the Treaty. The possibility of
further legal action under the Treaty did not change the attitude of
the Union of European Football Associations (UEFA, the body that
governs European football), which consistently tried to divert pressure
emanating from the Commission.
Already in 1978 UEFA had given an undertaking to Etienne Davignon,
then Commissioner in charge of industrial affairs and the
single market, that it would abolish the limitations on the number of
EC footballers who were employed by football clubs in the member
states but concrete action did not follow. The re-launch of the single
market project in the mid-1980s could have produced a `bandwagon
effecť against such restrictive practices. However, this did not happen.
The officials of the European Commission had to overcome not
only the lack of a sport-specific Treaty provision but also the opposition
of Jacques Delors, then president of the Commission.
Delors, a keen football fan with links to a number of top clubs and
league officials,18
believed that the EC had no powers to deal with this
issue. When in 1986 he realized that, in the course of an otherwise
routine investigation regarding compliance with the free movement
of workers, Commission officials were considering the possibility of
taking legal action against clubs under the Commission's powers as
guardian of the Treaties, Delors confronted Manuel Marín, then
commissioner in charge of social affairs, who was supporting the
stance of the officials of his department. When Delors realized that
18
K. Van Miert, Le Marché et le Pouvoir, Brussels, Racine, 2000, p. 131.
567MORE THAN A MARKET?
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Marín was unwilling to give in, he reassigned responsibility for this
dossier to Peter Sutherland, then commissioner in charge of competition
policy, so as to `bury' the issue altogether.19
Arguably, the same
logic permeated the gentlemen's agreement concluded in 1992 by
UEFA and Martin Bangemann, then vice-president of the European
Commission. This agreement introduced the so-called `three plus
two rule' that allowed football clubs to have up to three foreign
footballers.
This small change clearly fell short of a radical overhaul of
the regulations governing the transfer of footballers within the
EU. Throughout the 1990s, the Commission received a significant
number of complaints regarding the transfer system while, as Parrish
notes, a body of opinion was gradually emerging at the level of the EU
`seeking to give the socio-cultural and integrationist qualities of sport
a higher priority'.20
This was also exemplified by the Declaration
attached to the Treaty of Amsterdam in 1997. The Declaration highlighted
the `social significance of sporť and although it was not
legally binding it was a political message that EU institutions were
expected to take into account when they dealt with issues affecting
sport.21
The now famous Bosman case22
put the issue of the radical overhaul
of the transfer system back on the agenda. Jean-Marc Bosman, a
determined Belgian professional football player, took legal action
that brought about a sea change in European football.
The Bosman Case as a Critical Juncture
Bosman was a professional player of RC Liégois. When his contract
expired, the French club US du Littoral de Dunkerque offered to
19
Interview with European Commission official, 19 September 2001. This was part
of a broader `policy of tolerance' according to (former) Commissioner Karel Van
Miert, Le Marché et le Pouvoir, p. 130.
20
R. Parrish, `The Politics of Sports Regulation in the European Union', Journal of
European Public Policy, 10 (2003), p. 250.
21
See Parrish, Sports Law, p. 176. A similar Declaration has also been appended to
the Treaty of Nice.
22
Case C-415/93, Judgment of 15 December 1995, Union Royale Belge des
Sociétés de Football association and others/Bosman and others, European Court Reports
(1995).
568 GOVERNMENT AND OPPOSITION
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employ him and concluded an agreement with him and a separate
agreement with his former employer, RC Liégois. RC Liégois, doubtful
about the French club's solvency, did not ask the Belgian League
to issue the certificate that was required for the successful completion
of the transfer. As a result, the contracts did not enter into force. In
addition, the Belgian club suspended Bosman, thereby preventing
him from playing for the entire season. Bosman took the Belgian club
to the Belgian courts, which subsequently asked the ECJ to interpret
Article 48 of the Treaty of Rome (free movement of workers) in
relation to the regulations governing the transfer of professional
footballers. More specifically, the Belgian court sought to ascertain
whether this provision precluded the application of UEFA-sponsored
national regulations under which a professional player could not,
upon the expiry of his contract, be employed by a club based in
another member state unless the latter paid a fee to his former
employer. After reaffirming its views regarding the specificity of
sport, the ECJ ruled that the aforementioned regulations violated the
free movement of workers that directly affected players' access to
the employment market in another member state.23
Furthermore,
the ECJ condemned the aforementioned gentlemen's agreement
between the Commission and UEFA regarding the `three plus two
rule'.
This was a landmark ruling for two reasons. First, the ECJ reaffirmed
the view that sporting activities were multifaceted and that EU
law applied to the economic facet of those activities. Second, it dealt
a heavy blow to a key component of the regulations governing the
transfer of professional footballers, the edifice that had hitherto
exemplified the `specificity' of sport. It obliged UEFA and the International
Federation of Football Associations (FIFA) ­ the game's
governing bodies that were previously immune to external pressures
­ to reconsider this edifice in its entirety.24
In that sense, the ruling
opened a path that the Commission (in its capacity as guardian of the
Treaties) and the game's governing bodies had to follow.
23
Thus, the ECJ vindicated the Commission officials who had attempted to raise
the issue on the same legal basis during Jacques Delors' first term as Commission
president.
24
The first indication of change was the letter of warning issued to UEFA and FIFA
in January 1996 on Commissioner Van Mierťs instructions with regard to the compatibility
of the `three plus two rule' and the provisions of the Treaty.
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Nevertheless, the cardinal question remained unanswered: how far
should the Commission go in promoting the implementation of the
free movement of workers and the free provision of services in this
particular area? What guided and limited its action in an area where
(1) the powers of the EU remained hard to define and (2) the
Commission's past activity had been criticized by the ECJ? In other
words, what are the characteristics of the specificity of sport? How far
and in what way should they be taken into account in the implementation
of the aforementioned legally binding freedoms in this area?
The Specificity of Sport as Political Weapon
The continuing opposition of UEFA and FIFA, and the active involvement
of government leaders (especially those of Britain, Germany,
France, Italy and Spain) who overtly supported a `cautious' and
`balanceď approach25
while covertly and fiercely opposing substantive
change, further complicated the task of the European Commis-
sion26
and highlighted the eminently political nature of this issue.
This was unsurprising given that ­ unlike FIFA, which has little direct
25
The British Prime Minister Tony Blair and the German Chancellor Gerhard
Schröder openly supported this approach. Bundesregierung der BRD (2000) Der
Bundeskanzler teilt mit: Gemeinsame Erklärung von Bundeskanzler Schröder und
Premierminister Blair zum Transfersystem im Profi-Fußball. Pressemitteilung Nr. 425/
00, 10 September 2000. Also, the Swedish Prime Minister Göran Persson made a
number of telephone calls to European Commission President Romano Prodi supporting
the same view (interview with European Commission official, 19 September
2001). These calls reflected a rather demagogic attitude that was based on the football
fans' ignorance of (1) the fact that the Commission simply followed the ECJ's Bosman
ruling and (2) important legal developments at the national level. Indeed, a senior
Commission official highlighted the fact that Gerhard Schröder's public discourse,
interestingly, did not allude to the fact that the Federal Employment Court had ruled
that the previous system of transfer regulations was unconstitutional. Interview with
European Commission official, 12 September 2001. Further, these public statements
were presented as an attempt to protect football from the unnecessary and unwelcome
intervention of the Commission (a vague argument that was received sympathetically
by the uninformed and misinformed football fans) but, in essence, were overt pressures
on the Commission to be more sympathetic to the views of powerful football
clubs. Ministers representing smaller member states were supportive to the Commission.
Interviews, European Commission, 18 September 2001.
26
The French presidency of the EU also promoted the idea of the `exemption
sportive européenne', Le Monde, 4 June 1999.
570 GOVERNMENT AND OPPOSITION
 The Author 2006. Journal compilation  2006 Government and Opposition Ltd
contact with clubs ­ UEFA maintains direct links with football clubs,
in particular the so-called `G14', a Brussels-based organization that
represents now 18 wealthy and powerful European football clubs27
that vehemently opposed change.28
Given that these arguments were
used by `an industry of considerable commercial significance',29
they
could be dismissed as a delaying tactic, but the issue was far from
clear-cut.
The Commission was puzzled because it knew what it had to avoid
(i.e. the pre-Bosman arrangement) but it could not assess the precise
implications of the alternative options. These options were as follows:
1. it could simply remain inactive thereby obliging the clubs and
footbalľs governing bodies to reform the regulations. This was a
risky option because many clubs opposed change (thus, at that
point they could not be credibly expected to implement change)
and the complete liberalization of the system would deprive small
clubs, footbalľs grassroots organization, of the income they need
and receive when they `selľ players to wealthy clubs;
2. it could seek a gentlemen's agreement ­ the legislative option
being excluded due to the lack of a legal basis in the Treaty.
In both cases, the key question remained the same: how far should
change go? Should transfer fees be abolished? If not, how should they
be calculated? Should one rely on the pure logic of the market?
The Specificity of Sport as a Guide and Limit
After the Bosman ruling, the implementation by the European Commission
of the principle of the free movement of workers and the free
provision of services in professional football was guided, legitimized,
and constrained by the embedded social dimension of sport and the
need to protect, as much as possible, small clubs from the potentially
negative consequences of the Bosman ruling.
27
They include Real Madrid FC, FC Barcelona, AC Milan, Juventus FC, Manchester
United FC, and FC Bayern München.
28
They considered that the proposed changes would enhance the bargaining
position of players. Interviews with European Commission officials, 12, 18 and 19
September 2001.
29
Weatherill, ` "Fair Play Please!" ', p. 51.
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This ruling did not explicitly address certain problematic aspects
of the regulations governing the transfer of players whose contracts
have not expired. For example, even after this ruling, clubs enjoyed
an unfettered right to unilaterally define the amount that another
club had to pay to acquire the services of a footballer under contract.
Unlike most other professionals, footballers under contract did not
have the right to resign from one job and freely get another. This
fundamental rule of the international transfer system was clearly
incompatible with the principles of free movement of workers and
the free provision of services within the emerging single European
market. The impact of the Bosman ruling could not (and did not)
remain confined to the post-contractual stage. Rather, it forced the
officials of the European Commission, UEFA and FIFA to realize that
the time had finally come for a change in the regulations that governed
the contractual stage as well.
The task they faced was extremely complex because the ECJ had
not defined the specific content of the non-economic dimension
of sport. Thus, the frontier between the economic aspects of sport
(where EU law applies) and the non-economic aspects (where EU law
does not apply) had to be defined as well as acted upon. In addition,
the relative autonomy of the Commission had been curtailed by the
ECJ's criticism of the `three plus two rule'. Moreover, the Commission
was facing strong opposition from FIFA and UEFA, whose officials
argued that football was a special case and should be treated
accordingly.
Nevertheless, this argument had been undermined by the increasingly
spectacular amounts paid by top European clubs for the services
of footballers,30
the emergence of new market practices, such as the
acquisition by investment companies of controlling stakes in several
football clubs,31
the increasing involvement of private television channels
in the definition of key aspects of European as well as national
and world football tournaments in exchange for astronomical sums32
and the spiralling cost of top players' wages. In that sense, the
30
For example, in the summer of 2001 Real Madrid FC paid US$68 million for the
transfer of French international Zinedine Zidane.
31
For example, in the late 1990s the English National Investment Company
(ENIC) controlled four clubs (Glasgow Rangers, Slavia Prague, Vicenza and AEK
Athens).
32
The price of the exclusive television rights for the Italian football league
increased 58-fold between 1984 and 1998. V. Reding, `The European Community and
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Bosman ruling simply highlighted the change that had already taken
place and to a large extent provided ammunition to the Commission,
whose officials argued that `if the sporting world behaves as an economic
industry, it shall be regulated accordingly'.33
Faced with this situation and the unwillingness of footbalľs governing
bodies to devise a new system that would comply with EU law,
the Commission had to use its powers under competition law, which
is what it typically does when it attempts to liberalize previously
protected or uncompetitive markets. Commission officials focused on
one key argument:34
the use of transfer fees agreed between clubs
amounted to a restrictive practice that contravened EU competition
law because the definition of the fees was not based on a clear,
objective and transparent criterion that would reflect actual training
costs. Moreover, FIFA defined the transfer regulations unilaterally.35
Finally, players did not have the right to resign and were therefore
deprived of the right to provide their services freely.
This logic, which permeated the stance of the European Commission
throughout the 1990s, along with the Bosman ruling of the ECJ
raised the issue of change and highlighted the main aspect of the
system of transfer regulations that ought to be changed. However, it
could not provide a guiding device for the definition of the new
system, primarily because of the particular nature of football, and
sport in general. This particularity consists of a number of key elements
that demonstrated that the arguments against change had a
clear practical basis.
First, unlike other private firms, professional football teams need a
degree of stability in terms of personnel so that they can pursue their
objectives successfully. The full implementation of the principles of
free movement and free provision of services in this sector could
allow players to move from one club to another in a manner that
would severely undermine the clubs' ability to compete. Wealthy
clubs would be able to attract the best players throughout the football
European Sport: From the Economic to the Social Dimension', speech given at the
Ninth Sports Forum of the Konrad Adenauer Foundation, Eichholtz, 3 May 2001,
p. 11.
33
Interview with Commission official, 18 September 2001.
34
Libération, 1 September 2000.
35
European Commission officials stressed that the involvement of all interested
parties would have a positive impact on the stance of the ECJ as well. Interviews with
European Commission officials, 18 September 2001.
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season by paying even higher wages. This would lead to two very
important consequences. It would undermine the capacity of less
well-off clubs to compete. More importantly, small clubs renowned
for their ability to identify, train and sometimes even educate young
talented players36
would no longer be able to perform this vital function.
If players were allowed to benefit from the unfettered implementation
of the aforementioned freedoms, those clubs that are
small would be unable to rely on transfer fees and the key income
they secure by selling players. In short, the unfettered implementation
of the principles enunciated by the Treaty would deal a fatal blow
to the structure of football.
Second, the nature of competition in sport is special since it relies,
at least in part, on the concepts of equal opportunity, fair play and
solidarity.37
Unlike other economic actors, football clubs do not seek
to dominate in a manner that completely eradicates competition.
Rather, winning in football (and other sports) is meaningful only to
the extent that opponents remain reasonably able to compete. In
other words, `there is an interdependence of interest between participants
in sporting competition'.38
Third, a player's career usually starts at a young age and does not
last for many years. Indeed, a footballer's professional career typically
comes to an end soon after the age of 30.
Fourth, the number of professional athletes in Europe is estimated
at a mere 15,000­20,000.39
They originate in either the amateur
sector or school sports. One of the key characteristics of the organization
of sport in Europe is the principle of solidarity that links the
various levels of sporting practice, from recreational to top-level
professional sport. Its protection is a key function performed by
sports federations.
36
AFC Ajax Amsterdam, FC Nantes Atlantique and Athletic Club de Bilbao
are only a few of the European clubs that operate renowned `youth schemes' or
`academies'.
37
European Commission, The Helsinki Report on Sport: Report from the Commission to
the European Council with a View to Safeguarding Current Sports Structures and Maintaining
the Social Function of Sport Within the Community Framework, COM (99) 644 final.
38
Weatherill, ` "Fair Play Please!" ', p. 54.
39
Observatoire Européen de ľEmploi Sportif, Sport et emploi en Europe: Rapport final
 ľattention de la Commission Européenne, Brussels, EC, 1999, p. 36.
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Fifth, the `pyramid structure'40
of these organizations may give
sporting federations a practical `monopoly' that in principle constitutes
a violation of EU competition law. This form of organization
had negative effects on players' rights. Indeed, players were deprived
of the right, typically enjoyed by other employees, to take legal action
in national courts when they felt that their rights had been violated.
This archaic system exemplifies the autonomy of sports federations
and is largely a residue of amateurism. However, it would be absurd
to have, for example, two or more national federations making
arrangements for two national teams, competing internationally to
host the same sporting events, organizing two cup competitions, etc.
The Advent of the New System of Transfer Regulations
The Commission's use of its powers under competition law, which, by
definition, focuses on the economic aspects of sport, was not an indication
of its unwillingness to acknowledge and act upon the peculiar
nature of sport. Rather, it served a tactical purpose, namely, the
opening of the debate regarding the new system of transfer regulations.
The idea that sport is a peculiar type of `industry' was evident
in the arguments used by Commissioners and Commission officials
during the preparation of the new system of regulations.41
The arguments
used by Commission officials in the ECJ were also illustrative of
this twofold strategy. They acknowledged that if clubs are to maintain
a minimum of stability, which is a vital element of their ability to
compete, it is necessary to restrict the number and the duration of
`transfer windows', i.e. the periods in which transfers between clubs
of players under contract can take place.
The strict implementation of the principles of the free movement
of workers and the free provision of services in the field of professional
football would preclude this measure. In essence, the stance
adopted by the Commission was an indication of its willingness to
acknowledge and respect the specificity of sport and to combine it
40
Typically, it comprises grassroots federations and clubs, and regional, national
and European federations. European Commission, `The European Model of Sporť,
at http://www.europa.eu.int/comm/sport/doc/ecom/doc_consult_en.pdf, 1998,
pp. 2­3.
41
See for example Commissioner Reding's statement to BBC online news,
7 September 2000.
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with the need for change in the football transfer system in accordance
with (1) EU law and (2) the jurisprudence of the ECJ. The
new principles that govern only the transfer of professional football
players between member states42
exemplify this twin strategy promoted
by the European Commission.
The number of transfer windows has been limited to two per
season but each player is allowed to move only once every year.
Contracts can last between one (minimum) and five (maximum)
years.43
Unilateral breaches of contract are possible only at the end of
the season. The principle of financial compensation is maintained. A
fee is paid if a contract is breached unilaterally (either by a player or
a club). Young players and the interests of the clubs that train them
will be protected. Indeed, for players under the age of 23, a system
of training compensation has been put in place to encourage and
reward the training efforts of clubs. In addition, international transfers
of players under the age of 18 will only be authorized subject to
agreed conditions, and the football authorities will establish and
enforce a code of conduct to guarantee the sporting, training and
academic education of these players. Solidarity mechanisms will be
created that will redistribute a significant proportion of income to
clubs involved in the training and education of players, including
amateur clubs.44
An arbitration body will be created with members
chosen in equal numbers by players and clubs and with an independent
chairman, but arbitration will be voluntary and will no longer
rule out recourse to national (civil) courts.
This set of principles has been transposed into FIFA's regulations
on international transfers in July 2001 and came into force in September
2001. Moreover, following the Commission's call on FIFA and
UEFA to encourage dialogue between clubs and players, FIFA and
FIFPro (the umbrella organization that represents professional
42
European Commission, `Outcome of the Discussions Between the Commission
and FIFA/UEFA on FIFA Regulations on International Football Transfers', press
release IP/01/314, 5 March 2001.
43
The calculation of the compensation fee will be based on an estimate of the
training and education costs incurred by clubs. This estimate will be country-specific in
the EU, defined by national football associations, and will cover four categories of
players.
44
In cases of international transfers, the new employer will pay 5% of the total
financial compensation to all clubs that have contributed to the player's training up to
the age of 23.
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footballers' associations) reached an agreement regarding FIFPro's
involvement in the implementation of the new regulations. The new
principles introduce a number of key changes that embody a unique
combination of the principles enunciated by EU legislation, on the
one hand, and the specific nature of sport (and football) on the
other.
From the players' perspective, the new system45
is beneficial
because it affords them more freedom and enables them to protect
their rights effectively. Despite these changes, clubs can still maintain
a minimum of stability as only two transfer windows per season and
only one move per season per player are now allowed. Moreover, the
introduction of an objective (as opposed to an arbitrary) system for
the calculation of transfer fees allows them to limit their operating
costs. Finally, small clubs that operate `academies' and similar
schemes can still count on the income generated by transfer fees.
However, the key question relates to the manner in which the role of
the Commission was shaped.
What are the operational and political characteristics of the system
that have allowed the Commission to consent to it? Arguably, the
final outcome has a number of characteristics that reflect the idea
that sport is a multifaceted activity whose unique nature must be
taken into account in the course of implementing the freedoms of
(1) movement of workers and (2) provision of services.
From the Commission's perspective, the final outcome is the result
of internal consensus, the lack of which had undermined the role
of the EU's executive body in the crucial period of the mid- to
late 1980s. Indeed, the involvement of Commissioners Monti (competition),
Reding (education and culture) and Diamantopoulou
(employment and social affairs) after 1999 reflects this consensus as
well as the multifaceted nature of sport.
Moreover, this agreement does not entail the use of new EU legislation.
The Commission managed to avoid the submission of a new
legislative proposal, at a time when the emphasis of political discourse
at the level of the EU had shifted to the need for reform along
neo-liberal lines. Thus, it has also avoided accusations of excessive
activism by using existing structures to reach the desired outcome.
45
Initially, FIFPro objected to the new system. Le Soir, 7 March 2001. This was
essentially a tactical move in the players' effort to gain a substantive role in the
implementation of the new system.
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The actual implementation of the final outcome relies on the
action of national, European and international federations whose
autonomy is largely preserved. This enhances the legitimacy of the
implementation process. The autonomy of the world of sport is a
concept that the Commission intends to build on by promoting
former commissioner Diamantopoulou's idea of a collective agree-
ment46
that would bring together representatives of clubs, federations
and players. The objective is to re-balance the structures that govern
European football, to make them more representative and to
improve other aspects of professional football such as working conditions,
the calendar of football events, and the regulation of resting
time, in a manner that resonates with (1) the wider normative order
that underpins the operation of the single market (social market
economy) and (2) the positive experience of the member states
where a national collective agreement is already in place (e.g. Spain,
France, Denmark and the Netherlands).47
The final outcome was also congruent (to some extent) with the
`European social modeľ. It has allowed the Commission to avoid the
charge typically made against it that it promotes ultra-liberal policies,
while managing to promote the free movement of workers and
the free provision of services in a proportional manner. In fact, the
Commission has offered no guarantees as to the compatibility of the
new system with the Treaty. Commissioner Reding pointed out that
commissioner Monti (who had the lead in this dossier) did not sign
an agreement with the interested parties.48
Moreover, Commission
officials were eager to stress49
that a great deal will depend on the
capacity of FIFA, UEFA and, above all, FIFPro50
to protect the new
system from players who may wish to bring a test case to the ECJ.51
It
46
Interview with European Commission official, 19 September 2001.
47
Interviews with European Commission officials, 12 and 18 September 2001.
48
European Parliament, `Verbatim Report of Proceedings', 13 March 2001, at
http://www.europarl.eu.int/cre/pdf/20010313i.pdf, p. 53.
49
Interview with European Commission official, 19 September 2001.
50
International Herald Tribune, 7 March 2001.
51
Commissioner Reding too has alluded to this possibility. European Parliament,
`Verbatim Report of Proceedings', 13 March 2001, p. 53. For an excellent analysis of
the the reasons why aspects of the new systems may be incompatible with EC law see
Weatherill, ` "Fair Play Please!" ', pp. 70­1. One of the examples that Weatherill
highlights is the requirement that up until the age of 28 a player must abide by a
contract for at least three years or else suffer suspension. This seems to go `beyond the
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is clear that the involvement of the Commission in the handling of
this issue has not been a happy occasion for the EU's executive body.
Mario Monti's assertion that this marks `the end of the Commission's
involvement in disputes between players, clubs and football organi-
zations'52
is indicative of this sense. In addition, the efforts made to
promote the `social dialogue' mentioned above must be seen from
this perspective.
CONCLUSION
The purpose of this article was to explore the role of ideas in the
transformation of broad Treaty-based principles into concrete reality
in previously uncharted territory. Sport is a multifaceted activity but
the EU can only regulate the economic facets. Faced with this reality,
the Commission tried to reconcile Treaty-based obligations with the
demands of the broader, non-economic facets of sport. In the analysis
of this case, a twofold argument has been put forward.
Ideas are road maps that direct executive activity, legitimize and
constrain it by articulating the relevant deeply embedded conceptions
regarding the nature of the activity concerned. Ideas play this
role by means of their operational and political characteristics, that
is, by resolving operational problems in a way that directly resonates
with the normative order that underpins the institutional context in
which political decisions are made and implemented. The `flipside'
of this argument concerns the use of ideas by self-interested political
actors who seek to legitimize their own views and activity. In that
sense, ideas are `weapons' used by actors in their quest to protect and
promote their interests.53
This paradoxically supports the first claim.
Political actors use ideas precisely when these ideas are seen as
legitimate and shared. This is when they are politically consequential.
space allowed by the Courťs acceptance in Bosman that . . . the aims of maintaining a
balance between clubs by preserving a degree of equality and uncertainty as to results
. . . must be accepted as legitimate', Weatherill, ` "Fair Play Please!" ', p. 70.
52
Cited in Weatherill, ` "Fair Play Please!" ', p. 72.
53
Despite the vigorous rhetoric used by many national governments against what
they perceived as an unwarranted attack against the autonomy of sport, they implicitly
acknowledged that the ECJ's assertion that the Treaty covers the economic facets of
sport was correct.
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The socially constructed notion that sport is much more than an
economic activity did not allow the Commission to simply rest on the
ECJ's Bosman ruling, which it had the power to do. Rather, the
Commission had to help find a way to reconcile it with the ECJ's
jurisprudence. On the other hand, the same notion has been used by
the supporters of the status quo as a weapon in their new attempt to
stifle change. Both were legitimate uses of the same idea but they also
reflected wider concerns regarding the potentially negative implications
of the unfettered implementation of the free movement of
workers and the free provision of services on sport in general and
football in particular. In that sense, it can be argued that the idea that
sport is a peculiar and multifaceted industry both channelled and
constrained the debate (and its outcome) regarding the regulation of
sport.
The central conclusion that can be drawn from this case concerns
the relationship between ideas and agency. The role of ideas in
political processes has been criticized for placing excessive emphasis
on contextual (here immaterial) factors to such an extent that they
obscure the important role of agents. This article has sought to
contribute to a growing body of literature54
that highlights the fact
that reliance of ideas as explanatory factors does not necessarily
ignore the role of agency. In fact, ideas channel agency. Agents are
constrained by the ideas that constitute the broader normative
context in which they operate. On the other hand, they also use ideas
as weapons in an attempt to make their arguments more appealing.
In that sense, ideas are both constraints and resources.
54
See, for example, Hansen and King, `Eugenic Ideas'; Blyth, Great Transformations.
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