Bosman and Beyond: How a Court Decision a Quarter Century Ago Impacted Football On and Off the Pitch

Marquette Sports Law Review Marquette Sports Law Review

Volume 32

Issue 2

Spring

Article 7

2022

Bosman and Beyond: How a Court Decision a Quarter Century Bosman and Beyond: How a Court Decision a Quarter Century

Ago Impacted Football On and Off the Pitch Ago Impacted Football On and Off the Pitch

James J. Wold

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Bosman and Beyond: How a Court Decision a Quarter Century Ago Impacted Football On

and Off the Pitch

, 32 Marq. Sports L. Rev. 529 (2022)

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WOLD 32.2 5/20/22 10:13 AM

BOSMAN AND BEYOND: HOW A COURT

DECISION A QUARTER CENTURY AGO

IMPACTED FOOTBALL ON AND OFF THE

PITCH

JAMES J. WOLD*

Modern football has been defined by players searching for

more and more freedom. And that coincides with more and

more individualism. Today, we’re at a point where even the

January window creates earthquakes inside clubs. As soon as

a guy’s personal interests don’t line up with the team’s, he gets

very bored.

INTRODUCTION/BACKGROUND

On July 1, 2021, Lionel Messi was on duty for the Argentina national soccer

team in the Copa America as the Albicelestes awaited their quarterfinal

opponent Ecuador.

That date also held importance across the Atlantic Ocean

as the FC Barcelona icon’s three-year contract with the Blaugrana expired at

* James J. Wold is a 2017 graduate of Marquette University Law School and the National Sports Law

Institute. James specializes in international sport law and alternative dispute resolution. Prior to law school,

James was a sports writer and photographer for nearly 15 years in Southern Wisconsin and possesses a Masters

in Sport Management from Cardinal Stritch University. Much like Bosman himself, James was a free agent

during the Covid-19 pandemic and the writing process was therapeutic to his mental health. James dedicates

this paper to his mother, Donna, and late father, Larry, for their love and support of his passion for sport.

Special thanks to his friend and English teacher Bill LeTourneau for proofreading and recommendations to

strengthen the overall structure of the paper.

. JOSHUA ROBINSON & JONATHAN CLEGG, THE CLUB: HOW THE ENGLISH PREMIER LEAGUE BECAME

THE WILDEST, RICHEST, MOST DISRUPTIVE FORCE IN SPORTS 167 (2019) (quoting former Arsenal manager

Arsène Wenger).

. Carlos Garganese, Messi Sends Barcelona Message with Argentina Masterclass, FOOTBALL

TRANSFERS (July 4, 2021), https://www.footballtransfers.com/en/transfer-news/sa-copa-america/2021/07/

copa-america-messi-sends-barcelona-message-ecuador.

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530 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

the end of the day on June 30.

Thus, the six-time Ballon d’Or winner became

a free agent with the ability to ply his trade to any club in the world willing to

pay the superstar his wages. More importantly though, clubs would not have to

provide any transfer fees to FC Barcelona in exchange for Messi’s services.

For about a month, Messi appeared to be staying with the club he’s known

his entire footballing career by taking a significant pay cut.

Then in early

August 2021, a bombshell hit the football world—Barcelona would not take him

back. Citing a nearly €1.173 million debt load and an inability to restructure

contracts, Barcelona announced that Messi and his 674 career club goals would

be there for anyone to take.

It did not take long for the Argentinian superstar to

find a new home as forty-eight hours after Barcelona’s stunning announcement,

Messi agreed to terms on a multi-year deal with French club Paris Saint-

Germain.

In its current form, true free agency for the likes of Messi and other

European footballers can be traced back a quarter century to a journeyman

midfielder. This paper focuses on the European Court of Justice’s (ECJ)

decision in December 1995 regarding Jean-Marc Bosman against his club,

Royal Club Liege, and its impact on European soccer decision-makers over the

following twenty-five years. Part one will overview the basic structure of

European and international soccer and what the rules for players were like prior

to Bosman’s situation. This section also reviews the rules as it pertained to out-

of-contract players prior to the ruling, looking back at English and European

law. It will also evaluate the legal arguments brought forth by each side during

the Bosman case and analyze the court’s final decision.

Part two will analyze how clubs managed the ECJ’s ruling, starting with its

initial impact and how clubs modified their response to Bosman through the

years. Rather than taking a holistic view, this paper will highlight specific

individual European clubs and how the Bosman ruling, and free agency, may

have impacted their decision-making process in finding success on the pitch.

. Athletic Staff, Lionel Messi’s Barcelona Contract Expires, ATHLETIC (July 1, 2021, 2:25 AM),

https://theathletic.com/news/lionel-messis-barcelona-contract-expires/YEKGasUYZELj.

. Avi Creditor, Length the Only Surprise of Messi’s Reported New Barcelona Deal, SPORTS

ILLUSTRATED (July 14, 2021), https://www.si.com/soccer/2021/07/14/lionel-messi-barcelona-new-deal-

contract-five-years-pay-cut-2026.

. Sid Lowe, Barcelona’s Debt is Greater than €1 Billion. Forget Bringing Back Neymar, They Can’t

Even Afford Eric Garcia, ESPN (Jan. 29, 2021), https://www.espn.com/soccer/barcelona/story/4301666/

barcelonas-debt-is-greater-than-1-billion-forget-bringing-back-neymarthey-cant-even-afford-eric-garcia.

. Fabrizio Romano, Lionel Messi to PSG: The Inside Story of How a Stunning Deal Was Done,

GUARDIAN (Aug. 11, 2021, 3:00 PM), https://www.theguardian.com/football/2021/aug/11/lionel-messi-to-

psg-the-inside-story-of-how-a-stunning-deal-was-done.

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The concluding section will look ahead to the next era and whether Bosman’s

underpinnings are relevant to current and emerging challenges that face

European football.

I. THE BOSMAN DECISION

A. European Soccer’s Structure System

The Union of European Football Associations (“UEFA”) is the governing

body regulating soccer throughout Europe based in Switzerland and governed

by Swiss law.

At its core, UEFA is an association of associations and is the

umbrella organization for fifty-five national football associations across

Europe.

UEFA is one of six continental associations that works with the

Fédération Internationale de Football Association “FIFA”

to establish the rules

and regulations on all aspects of soccer within Europe.

These powers include,

but are not limited to: rules of play on the pitch, how players can transfer from

one club to another, contract and arbitration rules along with player eligibility.

UEFA has the authority to regulate competition within Europe at both the

national team and club team levels and has the right to create or abolish

competitions within its jurisdiction.

As the continental confederation for Europe, UEFA grants licenses to

national football associations and clubs.

National teams represent a single

country in an international competition

while club teams compete within a

. DAVID MCARDLE, FROM BOOT MONEY TO BOSMAN: FOOTBALL, SOCIETY AND THE L. 40 (2000).

. What UEFA does, UEFA, https://www.uefa.com/insideuefa/about-uefa/what-uefa-does/ (last updated

Jan. 22, 2019).

. About FIFA, FIFA, https://www.fifa.com/about-fifa (last visited Apr. 1, 2022).

. Id. (For completeness, the other continental associations underneath the FIFA umbrella that regulate

and enforce soccer’s rules are the Asian Football Confederation (AFC), the Confederation African de Football

(CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF),

the Confederacion Sudamerica de Futbol (CONMEBOL) and the Oceania Football Confederation (OFC).

AFC has forty-six total members and represents Asian nations in football. CAF represents fifty-four members

in Africa. CONCACAF represents thirty-five members throughout North and Central America and the

Caribbean nations. CONMEBOL is limited to ten members within South America (but does not include

French Guiana, Suriname, or Guyana). OFC represents Oceania’s 11 members, which include Australia and

New Zealand. UEFA has the most actual members with fifty-five.).

. See UEFA, UEFA STATUTES (2018), https://www.uefa.com/MultimediaFiles/Download/uefaorg

/General/02/56/20/45/2562045_DOWNLOAD.pdf.

. Id., at Art. 49.

. Id., at Art. 50.

. See generally UEFA, https://www.uefa.com/ (last visited Apr. 1, 2022). International competitions

include the World Cup, the European Championships and the recently established European Nations League.

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country’s own league.

The top finishers in each country’s private league also

compete with one another in the UEFA Super Cup, UEFA Europa Conference

League, UEFA Europa League and the prestigious UEFA Champions League.

UEFA’s governance is applicable for both men’s and women’s clubs and

national teams within Europe as it stages eighteen football competitions from

youth to senior level.

B. Rules Prior to Bosman

Understanding the transfer rules prior to Bosman requires a look back at

nearly 120 years of precedent and a labor system that was rarely in favor of

those who plied their trade on the pitch. As the Industrial Revolution took a firm

hold in Europe, especially in Great Britain, laborers found more time to pursue

recreational activities. In Victorian England, sport and recreation were viewed

as fostering “muscular Christianity” and team spirit.

This leisure time quickly

grew in popularity and some entrepreneurs began to charge admission to these

games.

In England, the leisure activity of the time was soccer.

Working-class

males led the professionalization of the sport, specifically the foundation of the

Football Association in 1863.

These men formed their own clubs, making it

the people’s game, and the sport quickly grew throughout England and other

countries throughout Europe.

. An individual nation’s competitions generally include a round-robin league competition that can

range from thirty-four to forty-six matches depending on the total membership of the league. For example, in

England’s Premier League, Spain’s La Liga and Italy’s Serie A, each league has twenty members and thirty-

eight total matches (nineteen matches at home and nineteen matches away). Meanwhile, Germany’s

Bundesliga has eighteen members and thirty-four total matches (seventeen matches at home and seventeen

matches away). Finally, England’s Championship Flight (its second division) has twenty-four teams and forty-

six matches (twenty-three matches at home and twenty-three away).

. Inside UEFA: Administration, UEFA, https://www.uefa.com/insideuefa/about-uefa/administration/

(last updated June 22, 2020).

. Id.

. PETER BAILEY, LEISURE, ENTERTAINMENT AND POPULAR CULTURE, 19TH CENTURY UK

PERIODICALS (Gale 2008), https://www.gale.com/binaries/content/assets/gale-us-en/primary-sources/intl-

gps/intl-gps-essays/full-ghn-contextual-essays/ghn_essay_19ukp_part1_bailey1_website.pdf; see

MCARDLE, supra note 7, at 4.

. MCARDLE, supra note 7, at 63.

. Steven M. Gelber, Working at Playing: The Culture of the Workplace and the Rise of Baseball, 16 J.

SOC. HIST. 3, 3-22 (1983) (discussing the rise of soccer in many ways mirrored the rise and popularity of

baseball in America after the Civil War. Much like England, the rise came about, in part, due to

industrialization).

. BAILEY, supra note 18, at 4.

. Fionn Shiner, Who invented football? The Story of the Beautiful Game – from Ancient China to

England, MIRROR (July 13, 2021, 12:14 PM), https://www.mirror.co.uk/sport/football/who-invented-

WOLD 32.2 5/20/22 10:13 AM

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However, labor issues simply slid from the industrial steel and shipping

yards to the board rooms of these fledgling soccer clubs. Chief among these

issues was the transfer system. Dating as far back as the 1890s, this archaic

system allowed clubs to purchase and sell players without threat of losing a

valuable transfer fee.

This “transfer fee”, or a financial transaction between

two clubs to purchase or acquire the services of a player, was seen as necessary

by clubs because smaller clubs could keep their best players until it made

financial sense to sell them.

Further, any money received would help a team

replace a player plus pay any outstanding debts.

However, if a larger club did

not necessarily need the cash infusion, there were few mechanisms in place at

that time for players to gain free agency.

The transfer system’s lawfulness was scrutinized in a trio of cases before

English courts. In Radford v. Campbell, the British Court of Appeal reviewed

the question of whether Nottingham Forest could bring an injunction against

Blackburn Rovers to block a player’s registration with a different club.

March 1890, Campbell signed a contract to play for Nottingham Forest.

Before

the season started, Campbell also inked a contract with Blackburn Rovers as

Rovers were paying players at that time.

The case was ultimately decided in

the player’s favor as the court determined the injunction by Nottingham Forest

was not proper.

While the court did not expressly state Campbell was in the

right, Lord Esher noted:

The Master of the Rolls said that this jurisdiction of the court

must depend upon the circumstances of every case. It was not

in every case in which a man was about to break his contract

that an injunction should be granted restraining him from doing

so. What was there at stake in the present case? There was no

football-story-beautiful-12656196; see Week Staff, The history of English soccer, from violent peasants to

multi-million dollar megastars, MIRROR (Jan. 8, 2015), https://theweek.com/articles/446170/history-english-

soccer-from-violent-peasants-multimillion-dollar-megastars. Football was introduced in The Netherlands and

Denmark by 1889 with Switzerland and Belgium picking up the game around 1895. Italy was also introduced

to the game prior to the end of the 19th Century (1898) and by 1904, the game’s global reach was found with

the foundation of FIFA. Meanwhile, English cities, especially in the industrial north, had multiple clubs in the

same town with Liverpool having more than 100 club teams at one point.

. MCARDLE, supra note 7, at 14-20.

. Id. at 20.

. Id.

. Id at 18.

. Id.

. Id. (Campbell was paid the handsome amount of 4 10 s per week.).

. Id.

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question of character or of property except that it was said there

would be a diminution in gate-money. But the real point was

the pride of the club; they wanted to win their games, and in

order to do so they had engaged these professionals. Ought the

solemn machinery of the court in granting an injunction to be

invoked in order to satisfy their pride in winning their matches?

If the defendant broke his agreement an action would lie against

him, and it might be even that an action would lie against the

other club for enticing him to do so. But it was unnecessary to

decide that now; all that needed to be said was that North J [at

first instance] was right and that this was not a proper case for

granting an injunction.

Although players could reject a transfer, they were limited in moving to

another club unless another club purchased the player’s contract from their

current club.

Put another way, professional athletes had a limited degree of

freedom to transfer between clubs.

Throughout much of the late nineteenth

and into the early twentieth century, this was the way business was done to

maintain spectator interest and keep the League competitive.

Two decades after Radford, in Kingaby v. Aston Villa FC, a player

challenged the English Football League’s registration system.

At that time, if

a player wished to move from one club to another at the end of the season, that

player would need his old club’s permission to do so.

Herbert Kingaby, a

journeyman professional footballer, was sold to Aston Villa—one of the larger

clubs during the early years of the English league—for £300 and paid a weekly

wage of four pounds.

Villa had buyer’s remorse two months after acquiring

Kingaby and offered to sell him back to his original club, Clapton Orient, for

£150.

But like many clubs at that time, Clapton Orient was cash-strapped and

did not have the ability to take back Kingaby at that price.

Meanwhile, Villa

. Id. (stating Lord Esher did have contempt for the sport, particularly at the professional level and did

not want the court to “involve itself with something so trivial” as that of soccer).

. Id. at 20.

. Id. at 17. Alternatively, players could receive permission from the Football Association. Id.

. Id. at 19.

. Id. at 22.

. Id. at 19.

. Id. at 21-22.

. Id. at 22.

. Id.

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was not willing to take a significant financial loss by allowing Kingaby to move

on without a fee.

This left Kingaby in a perilous position. Due to the retain-and-transfer

system in place, Villa was allowed to keep Kingaby on their retained players

list despite no intention of giving him a new contract.

Therefore, Kingaby

could not join another league club once he was placed on Villa’s retained list

despite not receiving a salary.

Unable to play for any English League club, the

only option available to Kingaby was to join another English league.

Kingaby

appeared to find a loophole when he joined Fulham of the Southern League as

they were not bound by the English League’s retain-and-transfer regulations.

Fate had another hurdle for Kingaby as the Southern and English Leagues

reached an agreement over the English League’s player registration and transfer

systems.

Not only did it prevent players from defecting to a different league,

but Kingaby ended up being re-registered as an Aston Villa player unless Villa

agreed to transfer him.

Villa would allow it, but it now wanted a transfer fee

of £350.

This amount was outside Leyton Orient’s budget and more than the

player’s objective valuation.

Kingaby sought legal action against Villa, arguing an unlawful restraint of

trade.

On the surface, there appeared to be a prima facie argument regarding

the transfer system’s unlawfulness.

However, counsel for Kingaby apparently

never argued the legality of the retain-and-transfer system.

Rather, the

plaintiff’s counsel took its arguments from Radford and only argued that Villa

acted in a malicious manner against Kingaby and sought damages for breach of

contract, conspiracy, and an injunction.

Because the fundamental legality of

the transfer system was never challenged, the court proceeded on the

presumption that the system itself was lawful.

Therefore, the Court found the

. Id.

. See id.

. Id.

. See Mitchel v. Reynolds 24 Eng. Rep. 347 (1711) (KB) (regarding an early English case concerning

unlawful restraint of trade); Leather Cloth Co. v. Lorsont, 9 L. R. Eq. 345 (1869).

. MCARDLE, supra note 7, at 23.

. Id.

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club acted lawfully in seeking a transfer fee for the player.

Further, Villa’s

motives for its actions were irrelevant because no amount of malice could render

a lawful act unlawful.

Fifty years after Kingaby, English courts confronted the retain-and-transfer

system in Eastham v. Newcastle United FC.

In April 1960, George Eastham,

a Newcastle United player, made several unsuccessful requests to be released

from his contract with the club.

Eastham decided to quit football, but the

Players Union requested he take the case to court to test the limits of the retain-

and-transfer system.

Meanwhile, Newcastle United, perhaps fearing legal

action, granted him a transfer to Arsenal for £47,000.

Despite the transfer,

Eastham continued forward with his legal case. At the time of the Eastham case,

most players were employed on yearly contracts that ran from July 1 to June

30.

As the contract approached its end, four possible scenarios existed:

(a) The player could re-register for the same club at any time

between 1 April and the first Saturday in May. In effect, the

contract was simply renewed.

(b) The club could retain the player on less favourable terms by

serving a notice between 1 May and 1 June, giving details of

the terms it was offering. If the FA considered the offer to be

too low, it could refuse the retention, but, if it felt the terms

were reasonable, the player could not sign for any other club.

Players were allowed to petition the FA with their reasons for

wanting to move to another club, but, if the FA refused to

intervene, clubs could retain a player indefinitely.

by the club.

. Id.

. Id. (This disastrous legal ploy nearly bankrupted the Player’s Union as it awarded the club legal costs

to be paid by the Union and provided it bad publicity in the public eye. This likely set back any challenges to

the restrain and trade system for years as employers believed they could simply put arbitrary new terms into

a player’s contract going forward.).

. L.J. Blom-Cooper, Retain and Transfer System Offside, 27 MODERN L. REV. 210, 210 (1964); see

MCARDLE, supra note 7, at 24.

. MCARDLE, supra note 7, at 24.

. Id.

. Id. at 24-25.

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(d) If the club did not want to keep the player and did not seek

a fee for him, it could release him and he would be free to

conduct negotiations with other clubs at any time from the end

of June. (Osborn and Greenfield, 1998, p 35.)

The English League argued that the retain-and-transfer system was justified

because it prevented large clubs from taking the best players while maintaining

competitive balance and fan interest.

The Chancery Court did not agree with

the League’s interpretation of the system, noting “[a]ny system that interfered

with the player’s freedom to seek other employment at a time where he was not

actually being employed by another club would seem . . . to operate

substantially in restraint of trade.”

Further, the court had a specific objection

to the retain portion of the system:

What makes the transfer fee so objectionable . . . is its

combination with the retain system. When it is so combined –

that is, when a man is retained and it is made known that his

club is open to offer, or when a man is put on both the transfer

list and the retain list – he cannot escape outside the League.

All he can do is (in the latter case) to apply to have the transfer

fee reduced. But, even if it is reduced, no club in the League

may pay it, and yet he cannot go outside.

Although the retaining portion of the transfer system went away after the

Eastham decision, the transfer system remained largely unchanged until the

Bosman ruling.

But the decision did have some positive effects for the

players.

The new transfer system made it easier for players to obtain “free

transfer” at the end of their contract as any players considered unwanted and not

on a “transfer list” would be a free agent.

Further, players had to be offered a

. Id. at 25 (emphasis added).

. Id. at 26 (Additionally, the defendants argued that there was no restraint of trade as the retain system

only gave the employer a series of options to renew a contract for a year. The court did not buy the argument

as a player, especially when placed on the retain list, was not employed by the club.); see Eastham v.

Newcastle United Football Club Lts. (1964) 3 WLR 574 at 584; Blom-Cooper, supra note 56.

. See MCARDLE, supra note 7, at 26.

. Id.

. Id. at 27.

. Id.

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538 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

contract with terms no less favorable than a previous one.

This also spurred on

the introduction of longer-term contracts in professional football as the one-year

deals were pushed aside outside of very young players or players at the end of

their respective careers.

Finally, transfer disputes were heard by an

independent tribunal.

More importantly, this marked a turning point in the

relationship between players and owners. Going forward, owners could not end

a player’s career by offering essentially adhesion contracts without any

favorable terms to the player.

C. European Union Structure

Although the Eastman case changed the English system, many countries in

Europe continued to use a pre-Eastman system.

To understand the transfer

issue prior to Bosman, it helps to provide a basic understanding of the European

Union and some of its important bodies. Post-World War II, six nations signed

the Treaty of Rome (the “EU Treaty”) in 1957.

The Treaty’s aim was to

establish the European Economic Community (“EEC”) and work towards

creating a common market based on the free movement of goods, people,

services, and capital.

Specifically, the signatories to the Treaty wanted to

create an “ever closer union” among European people.

More importantly, it

also established four institutions and decision-making mechanisms to express

both national interests and a joint future vision—the Council of Ministers, the

European Commission, the Parliamentary Assembly (“European Parliament”),

and the Court of Justice (“ECJ”).

The European Commission proposes

legislation, enforces treaty provisions, and possesses absolute enforcement

power and control over competition law.

. Id. at 28.

. Id.

. Id. (this represented a major erosion of power that clubs had in England.).

. James G. Irving, Comment, Red Card: The Battle over European Football’s Transfer System, 56 U.

MIA. L. REV. 667, 672 (2002).

. Treaty of Rome (EEC), EUR-LEX, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM

:xy0023 (last visited Apr. 1, 2022) (The six countries were Belgium, France, Italy, Luxembourg, the

Netherlands, and West Germany. The treaty went into effect on January 1, 1958.).

. Id.

. Irving, supra note 72, at 672.

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The ECJ consists of fifteen judges, one of each Member State, to ensure

consistent application of EU law.

This body rules on the legality of actions of

other EU governing bodies and offers preliminary rulings on the national court’s

requests for interpretation of EU law.

Advocate Generals provide advisory

opinions before the ECJ rules on a question.

Although not binding on the

individual parties, many of these recommendations end up in the final

decision.

D. Key aspects of the European Union Treaty

In cases where transfers are at issue, three provisions of the EU Treaty are

generally reviewed: Articles 48, 85, and 86. Article 48 states:

(1) The free movement of workers shall be ensured within the

Community not later than at the date of the expiry of the

transitional period.

(2) This shall involve the abolition of any discrimination based

on nationality between workers of the Member States, as

regards employment, remuneration and other working

conditions

(3) It shall include the right, subject to limitations justified by

reasons of public order, public safety and public health:

(a) to accept offers of employment actually made;

(b) to move about freely for this purpose within the territory of

Member States;

employment in conformity with the legislative and

administrative provisions governing the employment of the

workers of that State; and

. Id.

. Role of Advocates General at the CJEU, EUR. PARLIAMENT: THINK TANK (Oct. 10, 2019),

https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2019)642237

(Advocate Generals enjoy the same privileges as judges (immunity) and cannot be removed from office before

the end of their six-year term of office but may be re-elected. Unlike judges, Advocate Generals only have an

advisory role and do not take part in the decision-making on cases. As a matter of principle, the Advocate

General’s opinion is sought in every case tried by the Court of Justice (“CJ”), unless the latter decides that

there is no new point of law.).

. Irving, supra note 72, at 673.

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540 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

(d) to live, on conditions which shall be the subject of

implementing regulations to be laid down by the Commission,

in the territory of a Member State after having been employed

there.

(4) The provisions of this Article shall not apply to

employment in the public administration.

Articles 85 and 86 of the EC Treaty are core provisions of European

Community competition law. Article 85 (1) prohibits agreements or concerted

practices between undertakings that may affect trade between the Member

States and have as their object or effect the restriction or distortion of

competition within the Common Market.

Part 2 nullifies provisions in such

contracts that restrict competition.

Article 86 prohibits abuse by one or more

undertakings of a dominant position within the Common Market or a substantial

part of it in so far as it may affect trade between Member States.

The term

undertaking in this context refers to all “natural or legal persons and all

combinations of persons engaged in an independent commercial activity, either

as suppliers or customers of goods or commercial services.”

Activities such as

sports clubs are also considered undertakings.

E. European Court of Justice Sports Law Cases

Professional sports were first addressed by the ECJ in Walrave and Koch v.

Union Cycliste Internationale.

In Walrave, two Dutch professional

pacemakers competed in motor-paced bicycle races and were among the best in

the world.

When the Dutch duo did not perform well in a series of races, they

offered their services to other nationalities, such as Belgians and Germans.

However, the governing body, Union Cycliste Internationale, changed its rules

. TREATY ESTABLISHING EUROPEAN ECONOMIC COMMUNITY art. 48 (1957), https://www.ab.gov.

tr/files/ardb/evt/1_avrupa_birligi/1_3_antlasmalar/1_3_1_kurucu_antlasmalar/1957_treaty_establishing_eec

.pdf.

. EUR. COMM’N, THE APPLICATION OF ARTICLES 85 & 86 EC TREATY BY NATIONAL COURTS IN THE

MEMBER STATES 24 (August J. Braakman ed., 1997).

. Id.

. Id. at 17.

. Id. at 16.

. Id.

. Case C-36/74, Walrave and Koch v. Union Cycliste Internationale, 1974 E.C.R. 1405, 1422.

. Id. at 1423.

. Id.

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in 1973, stating the pacer and stayer in international competition had to be of

the same nationality.

Koch and Walrave said this action was discriminatory

and challenged the ruling under three provisions of the EU Treaty—Articles 7,

48 and 59.

This was a case of first impression for the Court regarding sport

and it first had to consider whether the Treaty itself extended to sport. The ECJ

found that “the practice of sport is subject to Community law only so far as it

constitutes economic activity [. . .].”

The Court also noted that regarding the

nationality discrimination aspect of the case, it would not affect the composition

of a sports team as that is a question of purely sporting interest and not affecting

economic activity.

Two years later in Gaetano Dona v. Mario Mantero, the ECJ modified and

restricted the Walrave rule. It redefined the exception for composition of

national teams to the exclusion of players from participation in certain matches

for the reason of “sporting interest only.”

This ruling specifically mentioned

professional and semi-professional players as the subject of protection while

distinguishing itself from amateur, non-economic activities that do not fall

under the Treaty’s freedom of movement provision.

F. Who is Bosman?

Jean-Marc Bosman was a footballer playing his trade in the Belgian first

division with RC Liege. Bosman’s contract with RC Liege called for him to earn

around 120,000 Belgian francs (Bfr) per month, including bonuses for a contract

that expired on June 30, 1990.

As Bosman’s contract neared its expiration, RC

Liege offered Bosman a new contract for one season, drastically reducing his

pay to 30,000 Bfr per month.

Bosman refused the offer and was placed on the

transfer list with a compensation fee of 11,743,000 Bfr.

With no suitors interested in a compulsory transfer, Bosman reached out to

US Dunkerque, a French second division club. US Dunkerque offered Bosman

. Id.

. Id. at 1422. (Article 7 regards a general non-discrimination provision. Article 48 concerns free

movement of employed persons. Article 59 allows for the freedom to provide services.).

. Id. at 1417; see KATARINA PIJETLOVIC, EU SPORTS LAW AND BREAKAWAY LEAGUES IN FOOTBALL

102 (David McArdle et al. eds., 2015).

. Walrave, 1974 E.C.R. at 1426.

. Case C-13/76, Gaetano Dona v. Mario Mantero, 1976 E.C.R. 1344.

. PIJETLOVIC, supra note 93, at 104.

. Case C-415/93, Union Royale Belge des Societes de Football Association ASBL v. Jean-Marc

Bosman, 1995 E.C.R. I-5040, ¶ 28.

. Id. ¶ 29.

. Id.

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542 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

a monthly salary of 100,000 Bfr with a 900,000 Bfr signing bonus.

100

On July

27, 1990, RC Liege and US Dunkerque completed a contract for the temporary

transfer of Bosman for one year with Dunkerque owing RC Liege a

compensation fee of 1,200,000 Bfr.

101

However, the contracts between the three parties (US Dunkerque and RC

Liege and between US Dunkerque and Bosman) were subject to the suspensive

condition that the transfer certificate had to be sent by the Union Royale Belge

des Societes de Football Association ASBL (URBSFA) to the Fédération

Française de Football (FFF) by the first match of the season set to begin on

August 2, 1990.

102

RC Liege doubted US Dunkerque’s solvency and did not ask

URBSFA to send the transfer certificate to the FFF.

103

As such, neither contract

took effect. Further, RC Liege suspended Bosman for the entire season.

104

On August 8, 1990, Bosman brought an action against RC Liege before the

Court of First Instance (Tribunal de Premiere Instance) in Liege.

105

Simultaneously, Bosman applied for an interlocutory decision ordering RC

Liege and URBSFA to pay him 100,000 Bfr per month until he found a new

employer, retain the defendants from impeding his career and referring a

question to the Court of Justice for a preliminary ruling.

106

The judge hearing

the interlocutory application ordered RC Liege and URBSFA to pay Bosman an

advance of 30,000 per month and refrain from impeding Bosman’s job search.

107

The judge also referred the court for a preliminary ruling on the interpretation

of Article 48 as it related to the transfer rules of professional athletes.

108

Bosman

attempted to sign with several French clubs but each contract was terminated.

Bosman suspected he was being blackballed by most European clubs by RC

Liege.

109

In June 1992, the Tribunal de Premiere Instance held it had jurisdiction

to decide.

110

It also held admissible Bosman’s claims against RC Liege,

URBSFA and UEFA seeking a declaration that the transfer rules and nationality

100

. Id. at I-5050-51, ¶ 30.

101

. Id. at I-5052, ¶ 31. (this amount was payable upon receipt by the Federation Francaise de Football

(FFF) of the transfer certificate issued by URBSFA and gave US Dunkerque an irrevocable option for full

transfer of Bosman for 4,800,000 Bfr.).

102

. Id. at I-5051, ¶ 32.

103

. Id. at I-5051, ¶ 33.

104

. Id.

105

. Id. at I-5051, ¶ 34.

106

. Id.

107

. Id. at I-5052, ¶ 35.

108

. Id.

109

. PIJETLOVIC, supra note 93, at 105.

110

. Bosman, 1995 E.C.R. at I-5053, ¶ 41.

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clauses were not applicable to him and orders penalizing the conduct of the team

and governing bodies.

111

URBSFA, RC Liege and UEFA all appealed the decision.

112

The Belgian

Court of Appeals upheld the judgment, holding that the Tribunal de Premiere

Instance had jurisdiction, that the actions were admissible, and reviewing

Bosman’s claims against UEFA and URBSFA did involve a review of the

lawfulness of the transfer rules.

113

It also said a review of the lawfulness of the

nationality clause was necessary as Bosman’s claim was based on Article 18 of

the Belgian Judicial Code, permitting actions “with a view to preventing the

infringement of a seriously threatened right” and that the factual evidence

suggested the damage to his career would occur.

114

Regarding Article 85, the

Court of Appeals noted that the regulations in place may be undertakings by

which clubs restrict competition between themselves for players and that trade

between member states was affected by the restriction of player mobility.

115

Furthermore, URBSFA and the football clubs may be in a dominant position

within the meaning of Article 86 of the Treaty and the restrictions on

competition connected to Article 85 might be prohibited abuses under Article

86.

116

Ultimately, the Belgian Court of Appeals referred two questions to the

European Court of Justice for answers:

Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be

interpreted as:

(i) prohibiting a football club from requiring and receiving

payment of a sum of money upon the engagement of one of its

players who has come to the end of his contract by a new

employing club;

(ii) prohibiting the national and international sporting

associations or federations from including in their respective

regulations provisions restricting access of foreign players from

the European Community to the competitions which they

organize?

117

111

. Id.

112

. Id. at I-5054, ¶ 42.

113

. Id. at I-5054, ¶ 44.

114

. Id.

115

. Id. at I-5055, ¶ 46.

116

. Id. ¶ 47.

117

. Id. at I-5056, ¶ 49.

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544 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

G. Legal arguments to the European Court

Regarding Article 48, URBSFA argued that only the major European clubs

were large enough entities to be considered economic undertakings.

118

URBSFA asserted that clubs such as RC Liege carry on economic activity “only

to a negligible extent.”

119

Further, URBSFA argued Article 48 is not applicable

because the question on transfer rules doesn’t concern the employment

relationship between player and club.

120

Rather, it is simply a business

relationship between clubs and the consequences of freedom to affiliate to a

sporting federation.

121

UEFA argued inter alia that the European Community

has respected sport’s autonomy and that it is difficult to distinguish between

economic and sporting aspects of football and that a decision by the Court could

call into question the entire sport.

122

UEFA contended that only the largest clubs

in the largest leagues could have activities that would “constitute an economic

activity.”

123

URBSFA and UEFA, along with the French and Italian

governments argued that the transfer rules were justified to maintain a financial

and competitive balance between clubs as well as support the search for talent

and training of younger players.

124

Bosman also challenged the “3+2” rule which allowed nations to limit the

number of foreign players a club could field on the team to three in any first

division match within a country or in any UEFA competition, plus two players

who played in the country of the national association for five uninterrupted

years.

125

This also included three years as a junior “assimilated players.” This

rule effectively placed quotas on clubs.

H. The Court’s Decision

1. Advocate General’s Opinion

Advocate General Lenz first reviewed whether the ECJ had jurisdiction

over UEFA’s rules and regulations and to what extent that authority extended

118

. In this context, the Belgian League likely means top tier leagues like the English Premier League,

the German Bundesliga, Italy’s Serie A, Spain’s La Liga, and France’s Ligue One.

119

. Bosman, 1995 E.C.R. at I-5062, ¶ 70.

120

. Id.

121

. Id.

122

. Id. at I-5062-63, ¶ 71.

123

. See id.

124

. Id. at I-5071, ¶ 105.

125

. Id. at I-4944, ¶ 39.

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out. While UEFA and FIFA are based in Switzerland, a non-member state of

the EU, many of its member states do belong to the European Community and

comply with those statutes. If non-member states engage in practices that affect

competition or freedom of movement within the community, then the provisions

of the Treaty will be applicable if those practices are implemented within the

Community.

126

Although Switzerland allows for tax advantages for governing

bodies like UEFA and FIFA, they are still subject to EU law if their decisions

impact the citizens of the European Community.

Secondly, the Advocate General’s decision also noted that size of the

economic activity does not matter as it relates to restrictions. Once professional

football was declared as an economic activity, the “size of that activity is

immaterial, as is the question of to what extent it leads to a profit.”

127

Although

the Advocate General sympathized with the consequences of the Court’s

decision, the applicability of the law could not be questioned and that it cannot

be an obstacle to that applicability. Additionally, the AG’s most succinct

criticism was against the Belgian FA, which argued that most of its clubs did

not make a profit; therefore, Article 48 was not applicable. AG Lenz wrote in

his opinion:

If I understand that argument correctly, the [Belgian FA] is

submitting that the rules on transfers relate merely to the mutual

relationships of clubs, while Art 48 is relevant only to the

employment relationship between the club and the player. That

argument cannot be accepted. The distinction suggested . . . is

of an artificial character and does not correspond to reality. The

rules on transfers are of direct and central importance for a

player who wishes to change club. That is shown precisely by

the present case: if it had not been for the transfer rules,

nothing would have hindered Mr Bosman’s transfer to US

Dunkerque. It thus cannot seriously be maintained that those

rules concern merely the legal relations between clubs

[emphasis in original].

128

Lenz also dismissed another argument by UEFA, which suggested even if

Community law was applicable to sport, Article 48 was not appropriate for

126

. Id. at I-4940, ¶ 159.

127

. Id. at I-4974, ¶ 127.

128

. Id. at I-4974-75, ¶ 129.

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546 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

solving football’s specific issues. Lenz stated professional football is an

economic activity and therefore subject to Community law.

129

With Article 48 deemed as applicable, Lenz went on to consider whether

the nationality rule breached its provisions. Lenz agreed that they are of a

discriminatory nature, stating:

[The quota rules] represent an absolutely classic case of

discrimination on the ground of nationality. Those rules limit

the number of players from other Member States whom a club

in a particular Member State can play in a match. Those players

are thereby placed at a disadvantage with respect to access to

employment, compared with players who are nationals of that

Member State.

130

Lenz went further in saying even if the “national aspect” of UEFA’s

argument had the significance that many gave it credit, including the notion of

“spectator identification”, it could still not justify the rules on foreign players.

131

The right to freedom of movement and the prohibition of discrimination is one

of the Community’s core tenants. “The rules on foreign players breach those

principles in such a blatant and serious manner that any reference to national

interests which cannot be based on Article 48(3) must be regarded as

inadmissible […].”

132

UEFA’s argument also fell apart according to Lenz by

simply looking at clubs across Europe. AC Milan boasted the Dutch trio of Ruud

Gullit, Marco Van Basten and Frank Rikjaard while German star Jurgen

Klinsmann plied his trade for Tottenham Hotspur and French sensation Eric

Cantona starred for Manchester United.

133

Lenz questioned not only the transfer

rule in its 1990s form, but whether any transfer rule would fulfill the

association’s objectives.

134

Regarding Articles 85 and 86 of the Treaty, Lenz concludes that Article 85

should be interpreted as precluding agreements between clubs and decisions of

sports associations that prohibited players from engaging in restraint of trade

and restricting the number of foreign players on a club.

135

As for Article 86,

129

. Id. at I-4975, ¶ 130.

130

. Id. at I-4976-77, ¶ 135.

131

. Id. at I-4980, ¶ 143.

132

. Id. at I-4980, ¶ 142.

133

. Id. at I-4980, ¶ 142-43.

134

. Id. at I-5016, ¶ 223.

135

. Id. at I-5029, ¶ 262.

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Lenz noted this element was not applicable in Bosman because Article 86

concerns power on the market that clubs take together against competitors,

customers, or consumers. A restriction on competition between clubs is not

viewed as an abuse within the meaning of Article 86 since the only relationship

affected is between the clubs and player.

136

2. The ECJ’s Final Ruling

The Court ultimately shared the Advocate General’s view that the transfer

system was unlawful under Article 48. It particularly noted that although

freedom of movement for workers could reduce the chances of finding

employment within one state, it does open new prospects of employment to

other member states and that these considerations should apply to professional

footballers.

137

The Court also rebuffed the competitive balance argument as

there were no rules limiting the possibility for clubs to recruit the best national

players.

138

It also utilized Article 48 to determine the “3+2” rule was

incompatible with the practices of limiting the number of foreign players that

play for a football club.

139

Because the court found that UEFA and URBSFA

were in violation of Article 48, the court did not find it necessary to rule on the

interpretations of Articles 85 and 86 of the treaty.

II. IMPACT OF BOSMAN

A. Introduction

The Bosman decision came on the heels of a trio of important developments

that ushered in the modern football era. In 1989, Hillsborough was the site of

one of the greatest sporting disasters. Liverpool and Nottingham Forest were set

to meet for an FA Cup semifinal. Instead, ninety-seven Liverpool fans died due

to the result of overcrowding in the standing room only “pens.”

140

After the

tragedy, English clubs (and eventually all of Europe) retro-fit stadiums to

become seating-only. In an interesting side effect, much of the hooliganism that

136

. Id. at I-5038-39, ¶ 286.

137

. Id. at I-5077, ¶ 134.

138

. Bosman, 1995 E.C.R. at I-5071-72, ¶ 107.

139

. Id. at I-5078, ¶ 137.

140

. David Conn, Hillsborough Disaster: Deadly Mistakes and Lies that Lasted Decades, GUARDIAN

(Apr. 26, 2016, 7:18 PM), https://www.theguardian.com/football/2016/apr/26/hillsborough-disaster-deadly-

mistakes-and-lies-that-lasted-decades.

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plagued England and football in general left the stadiums as seating-only

stadiums drew different demographics to the game.

141

In 1992, English football reorganized at the top to create the Premier

League. Prior to 1992, clubs had gone up and down the pyramid with a minimal

amount of pain on the club’s bottom line.

142

That all changed with the arrival of

the Premier League. Not only was it going to become the most competitive

league in the world, it had the unintended consequence of attracting people with

money because they now saw it as an investment opportunity.

143

Simultaneously, television began to take notice of football and leagues began to

financially capitalize not only domestically but also abroad. Sky Sports, headed

by Rupert Murdoch, purchased five years of television rights in 1992 for £304

million to televise sixty live games per year.

144

The money earned by television

rights helped offset the costs and loss of revenue in making all-seater stadiums

in England.

145

With players mostly on year-to-year contracts prior to 1995, Bosman

opened the floodgates for free agency.

146

And without the “3+2” restrictions,

teams were free to sign players from all around the world. However, New York

Times writer Tariq Panja, along with many other soccer pundits, quickly pointed

out that “[f]ree transfers are not free amigos.”

147

Teams are still responsible for

the player’s wages, but there is no additional transfer fee to be paid to a team

for that player’s services.

148

Therefore, players tend to earn a higher wage on

free transfers.

As Arsène Wenger noted at the beginning of this paper, free agency also

created the era of player empowerment. Players could dictate where they wanted

to go with their agents. While more money flowed into the game, players made

decisions based on where they wanted to live and pay taxes, the facilities, and

whether the club was Champions League worthy.

149

More freedom combined

with the influx of money and, suddenly, players found themselves with a unique

141

. Paul Kelso, How Football Changed After Hillsborough, SKY NEWS (Apr. 25, 2016),

https://news.sky.com/story/how-football-changed-after-hillsborough-10258583.

142

. ROBINSON & CLEGG, supra note 1, at 63 (only Arsenal has avoided relegation from the first division

since it arrived in 1919).

143

. ROBINSON & CLEGG, supra note 1, at 64.

144

. Id. at 41.

145

. See Kelso, supra note 141.

146

. See ROBINSON & CLEGG, supra note 1, at 71.

147

. Tariq Panja (@tariqpanja), TWITTER (Aug. 7, 2021, 10:31 AM), https://twitter.com/tariqpanja/status

/1424030516206964736.

148

. See ROBINSON & CLEGG, supra note 1, at 164-66.

149

. See id. at 167.

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power—the eighteen-month contract.

150

Although it is not explicitly stated,

that’s when teams generally must come to the decision on a player to either tie

him down for a long-term deal or let his contract expire.

151

Alternatively, clubs

can sell the player to get some compensation through a transfer fee if the player

is amenable to the move.

152

And as teams began utilizing that third option, the

transfer market began to act like the stock market as clubs spent like crazy to

chase after titles.

153

Speculation on players became a sport unto itself as fans

and sports talk radio constantly looked for new players for teams.

154

This new

era opened the market for a pair of Premier League teams eager to challenge

Manchester United’s dominance on the title.

B. Early years—London Becomes Relevant

1. Chelsea—The Early Adopters

With the birth of free agency and numerous players hitting the free agent

market at the same time due to the practice of year-to-year contracts, many clubs

were left scrambling to figure out the new legal landscape of transfers.

155

But

clubs that were willing to spend the new influx of cash on higher priced free

agents got the jump on improving their club. The prototype of this club building

from the outside, early on after Bosman, may have been Chelsea. Based in West

London, the Blues had struggled since its last top-flight championship in 1955

and had not even won a cup trophy since 1970.

156

Even in the first half of the

1990s, the Blues were mostly in the bottom half of the standings.

157

Outside of

150

. Id. at 166.

151

. Id.

152

. Contracts in soccer, to an extent, are always capable of being torn up for transfers. Unlike most

American sports leagues, trading one player for another player is a rarity. A recent example of high-profile

players traded for one another were Manchester United trading Henrikh Mkhitaryan for Arsenal forward

Alexis Sanchez in 2017. In most cases, this involves one club throwing a significant amount of money for the

right to transfer the player to their club. See ROBINSON & CLEGG, supra note 1, at 164-65, for a checklist of

how the process works.

153

. ROBINSON & CLEGG, supra note 1, at 167.

154

. Id. Transfers and English tabloids are a match made in heaven and became an extremely fashionable

way for selling daily newspapers in the 1990s and into the 21st century.

155

. The authors call it a destabilizing situation and note the transfer market went into overdrive with no

regulations on when transfers could be made. See ROBINSON & CLEGG, supra note 1, at 166. Eventually, this

was turned into two transfer windows where players could move between July and the end of September, as

well as January the following year.

156

. ROBINSON & CLEGG, supra note 1, at 76.

157

. Id.

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550 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

a charismatic Russian goalkeeper, Dmitri Kharine, Chelsea was quintessentially

British from the pitch to ownership.

158

With Bosman in effect, a significant amount of high-priced and successful

footballers became free agents overnight and Chelsea made the first shockwaves

by signing former AC Milan star Ruud Gullit. The Dutch libero was soccer

royalty as he won Italy’s Serie A three times over, two European Cups (later

remade into the Champions League), the European Championship with the

Dutch squad, and was the Ballon d’Or winner in 1987.

159

Not long after, the foreign invasion of Chelsea took flight as other

international stars joined the Blues in a quest for relevance within the Premier

League: Gianluca Vialli came to Chelsea from Juventus on a Bosman transfer;

Gianfranco Zola from Parma; and Roberto Di Matteo from Lazio.

160

Although

Gullit did not last past the 1997 season, the “United Colors of Chelsea”

continued to acquire talent from around the globe.

161

The project reached an

apex on Boxing Day 1999. Facing Southampton and seeing his team ravaged by

flu, Vialli (now the manager of the Blues) sent out his healthiest squad available.

It turned out to be historic as Chelsea fielded the first starting eleven without a

single British player in 111 years of English football.

162

Four years later,

Chelsea made a different kind of history when Russian oligarch Roman

Abramovich purchased the Blues from Ken Bates, making him the first foreign

investor in the Premier League.

163

2. Arsenal—Wenger and the French Connection

Abramovich’s arrival in the Premier League came at the same time one of

football’s great innovators reached unprecedented heights. As Bosman opened

football to the world’s talents, Arsenal Football Club welcomed a “professor of

football” through its doors.

164

Arsène Wenger stepped in as manager of Arsenal

on September 30, 1996, and into a Premier League still adjusting to the modern

158

. Id.

159

. Id. at 76-77. In this context, “libero” is used to mean a kind of free-spirit hybrid who was position-

less in the Chelsea lineup. This meant he could take the ball from a defensive position and have the freedom

to advance it and become a striker if needed.

160

. ROBINSON & CLEGG, supra note 1, at 77.

161

. Id. at 78.

162

. Id. at 78-79. The lineup included a Dutch goalkeeper, defenders from Spain, Brazil, France, and

Nigeria; midfielders from Italy, Romania, Uruguay, and France; and a pair of forwards from Italy and Norway.

163

. Id. at 87-88.

164

AMY LAWRENCE, INVINCIBLE: INSIDE ARSENAL’S UNBEATEN 2003-04 SEASON 29 (2014).

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era of football.

165

Wenger was only the second non-Irish or non-British manager

in the Premier League when he arrived.

166

However, Arsenal vice-chairman

David Dein believed in Wenger, a Frenchman who spoke five languages and

had a unique perspective on world football as manager of Monaco in the French

League and Nagoya Grampus Eight in Japan.

167

Like Chelsea, Wenger looked

at this new era of freedom of movement and relished the team-building

opportunities they presented.

168

Unlike Chelsea, Wenger’s approach was more of an alchemist than a big

spender. Rather than finding the top free agents and paying them exorbitant

salaries, Wenger’s transfer policy went for a youth movement and finding

market inefficiencies from around the world to bolster his club.

169

He did not

look far to find two of his biggest targets. Wenger’s first major signing was to

buy Patrick Viera from AC Milan in 1996.

170

Three years later, Wenger went to

Juventus and pried winger Thierry Henry.

171

Wenger particularly found success

with French players as Vieira and Henry were both members of the 1998 World

Cup champions France side along with then-Arsenal player Emmanuel Petit and

future Gunner Robert Pires.

172

The market changed in the early part of the 21

Century when FIFA altered

its rules to allow for free transfer of any player out of contract, stating a player

is “free to conclude a contract with another club if his contract with his present

club has expired.”

173

This did not slow Wenger or Arsenal down. The Gunners

won three Premier League titles, four FA Cup crowns, and made an appearance

in the Champions League final during his first ten years in charge of Arsenal.

174

165

. Id. at 27.

166

. ROBINSON & CLEGG, supra note 1, at 74.

167

. LAWRENCE, supra note 164, at 24-25.

168

. Id. at 31-40. Author and Wenger discuss the issues that needed attention upon Wenger’s hire as

manager of Arsenal Football Club and the opportunities they presented, including better nutrition. This led to

what became famously known as the “Mars Bar Revolt” where players chanted “We Want Mars Bars” after

Wenger eliminated the practice of having candy bars after games in favor of more nutritious snacks. See Paul

Campbell, From the Vault: Arsène Wenger Joins Arsenal in 1996 and Bans Mars Bars, GUARDIAN (Oct. 1,

2013, 5:49 AM), https://www.theguardian.com/sport/blog/2013/oct/01/from-vault-arsene-wenger-joins-

arsenal-mars-bars.

169

. See LAWRENCE, supra note 164, at 42.

170

. Not long afterwards, Wenger plucked Nikolas Anelka from Paris Saint-Germain as a 19-year-old

striker for £500,000. See id. at 27.

171

. Id. at 67.

172

. Id.

173

. FIFA, Regulations on the Status and Transfer of Players, Article 18.3, 23 (2021).

174

. Wenger won 11 trophies during his first 10 years at the helm at Arsenal and finished with 17 overall

trophies during his tenure. See Daniel Karell, Stats Behind Wenger’s Time at Arsenal, NBC SPORTS (April

28, 2018, 10:31 AM), https://soccer.nbcsports.com/2018/04/20/stats-behind-wengers-time-at-arsenal/.

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552 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

Much of that success can be attributed to Wenger’s ability to recruit worldwide.

In the 2003-04 season, Arsenal’s “Invincibles” powered through the Premier

League season unbeaten and had players from ten different countries see at least

ten matches on the pitch.

175

It was the first unbeaten season in the English top

division since Preston North End did it in 1888-89.

176

Pires had the best

description of the squad when he said:

When you make a dish, you need ingredients. Arsène chose the

players, and he wanted to make a nice meal. He took a

Cameroonian, Brazilians, he took Frenchmen, he took a

German, he took a Dutchman and he kept the English [. . .] and

it makes a magnificent dish like that of 2003-04. But in all this,

the most important person is Arsène Wenger.

177

C. Secondary Years—The Spanish Giants Blaze Their Own Paths

While the Blues and Gunners took advantage of the early Bosman years to

make the English capital a new destination for soccer’s elite, two Spanish giants

needed time to determine their respective strategies in the transfer market. Once

established, the duopoly of Real Madrid and FC Barcelona took the world of

football by storm for the next decade.

1. Real Madrid and the Galácticos

Coming off Champions League wins in 1998 and 2000, and with nine

European Cup wins in its storied history, Real Madrid were already the kings of

Europe.

178

But president Florentino Perez wanted even more. He wanted Los

Blancos to dominate on and off the pitch.

179

And to do so, he would break open

the transfer window in ways very few could comprehend.

175

. LAWRENCE, supra note 164, at 227-30 (Appendix).

176

. Back then, the league consisted of only twelve teams and Preston North End finished with eighteen

wins and four draws. By contrast, Arsenal played thirty-eight matches in a 20-team Premier League and ended

the season with twenty-six wins and twelve draws, including a 2-1 home victory over Leicester City on the

final match day to complete the undefeated campaign. See LAWRENCE, supra note 164, at 190.

177

. LAWRENCE, supra note 164, at 42.

178

. See How the Kings of Europe Forged Their Legacy, REAL MADRID CF (May 25, 2020),

https://www.realmadrid.com/en/news/2020/05/25/how-the-kings-of-europe-forged-their-legacy-2.

179

. Tim Collins, He’s the Problem, But Florentino Perez Sees Himself as Real Madrid’s Solution,

BLEACHER REP. (June 9, 2015), https://bleacherreport.com/articles/2490655-hes-the-problem-but-florentino-

perez-sees-himself-as-real-madrids-solution.

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Starting with a £37 million purchase of Barcelona star Luis Figo, Perez

ushered in what was known as the “Galácticos era”.

180

Perez’s transfer policy

capitalized on the Bosman ruling that nationality restrictions were unlawful by

plucking the biggest superstars from all around the globe—whether they were

needed or not. After the Portuguese star’s arrival, Perez followed with massive

payments to acquire French star midfielder Zinédine Zidane for £46 million in

2001 and another £30 million for the Brazilian Ronaldo, who was coming off a

World Cup title in 2002.

181

The next year saw Perez shell out €35 million to

bring in English superstar and fashion icon David Beckham from Manchester

United.

182

The money continued to pour in for superstars as Real Madrid purchased

Michael Owen, Robinho, and Sergio Ramos in 2005 while Ruud van Nistelrooy,

Gonzalo Higuain, Marcelo, and Italian World Cup winner Fabio Cannavaro

arrived in 2006.

183

Two years later, Real Madrid snagged Arjen Robben, Pepe,

and Wesley Sneijder.

184

Then in 2009, Perez spent nearly £195 million to obtain

Cristiano Ronaldo, Kaka, Raul Albiol, Karim Benzema, Xabi Alonso, and

Alvaro Arbelola.

185

The following year, another large outlay of money brought

in World Cup stars Angel di Maria, Sami Khedira, and Mesut Ozil.

186

When

Real Madrid were kicking on all cylinders it was a sight to behold for fans and

coaches of other big clubs:

[W]hen Madrid were in their pomp, everyone was looking

longingly over the garden fence. [Manchester United manager

Sir Alex] Ferguson even called Real “the strongest squad I have

ever seen in terms of names”. Every boy who has sketched his

180

. Signing Figo was one of the first promises made by Perez upon his election as president of Real

Madrid. See SID LOWE, FEAR AND LOATHING IN LA LIGA: BARCELONA, REAL MADRID AND THE WORLD’S

GREATEST SPORTS RIVALRY 347 (2014).

181

. Ajay Rose, The Galactico Revolution Began 15 Years Ago Today, VICE (July 25, 2021, 8:31 AM),

https://www.vice.com/en/article/wn3mjq/the-galactico-revolution-began-15-years-ago-today.

182

. Alex Kirkland, Real Madrid’s ‘Galacticos’: 10 Key Moments of Era that Brought Figo, Zidane,

Ronaldo and Beckham to the Bernabeu, ESPN (March 3, 2021), https://www.espn.com/soccer/real-

madrid/story/4321616/real-madrids-galacticos-10-key-moments-of-era-that-brought-figozidaneronaldo-and-

beckham-to-the-bernabeu.

183

. Rose, supra note 181.

184

. Id.

185

. Id.

186

. Id.

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554 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

world XI during class wanted to be able to do what Pérez was

doing: hoover up the greatest attacking talents on the planet.

187

In a sense, Perez chose this strategy for a couple of logical reasons. First,

this policy is a strategic marketing ploy to generate attention by fans, media,

and sponsors.

188

In a burgeoning non-stop news cycle, Perez made sure Real

Madrid marketed itself globally.

189

Second, it was also a way of telling other

clubs that Real Madrid was the biggest on the European block.

190

Manchester

United manager Sir Alex Ferguson noted after Real Madrid purchased Cristiano

Ronaldo in 2009 that “Madrid paid £80 million [$131.5 million] in cash for him,

and do you know why? It was a way for Florentino Perez, their president, to say

to the world ‘We are Real Madrid, the biggest of the lot.’”

191

By the time it was

done, Perez had spent nearly a billion pounds for a who’s who of global icons.

However, for all the money pumped into the team by Perez, Real Madrid

only came away with nine major trophies over fifteen years through 2015 (five

league titles, two Champions League crowns and two Copa del Rey cups).

192

Further, the constant spending to get the best players in the world also came

with a price as the squad was constantly imbalanced.

193

By spending on Zidane,

the Brazilian Ronaldo and Beckham, Real Madrid saw the departure of four

“lesser” Galácticos in club captain Fernando Hierro along with Fernando

Morientes, Steve McManaman, and Claude Makélélé because Perez chose not

to spend his money on defensive players.

194

In an interesting twist, it was when

Perez went back to finding balance in his transfers that Los Blancos enjoyed

some of its greatest European heights since the beginning of the European

187

. Rob Smyth, On Second Thoughts: The Galacticos Era, GUARDIAN (July 13, 2007, 9:30 AM),

https://www.theguardian.com/football/2007/jul/13/realmadrid.

188

. SIMON KUPER & STEFAN SZYMANSKI, SOCCERNOMICS: WHY ENGLAND LOSES; WHY GERMANY,

SPAIN AND FRANCE WIN; AND WHY ONE DAY JAPAN, IRAQ AND THE UNITED STATES WILL BECOME KINGS

OF THE WORLD’S MOST POPULAR SPORT 26 (2018 World Cup ed., 2018).

189

. Id.

190

. Id. Perez came into his role as President of Real Madrid from the business world and his strategy is

also effective in getting people to buy into non-soccer related projects, such as real estate ventures, because

even if the team struggled on the pitch, it was successful off it. See id. at 77-78.

191

. Id. at 26.

192

. Rose, supra note 181.

193

. Aleksandar Hemon, ‘Galacticos’ in Hell: Enjoying the Ritual Demise of Europe’s Priciest, Most

Annoying Soccer Club, NEW REPUBLIC (Mar. 21, 2010), https://newrepublic.com/article/73970/galacticos-

hell.

194

. Rose, supra note 181.

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Cup.

195

From 2014 to 2018, Real Madrid still made big moves in the transfer

window. This time, supplemented by its academy players, it captured four out

of five Champions League trophies, including three consecutive titles from

2016-18. Yet, for all its recent success, the Galácticos live on as a cautionary

tale that money alone simply cannot buy championships as Raul Gonzalez noted

in 2015:

I can’t remember exactly when people started calling us

‘Galacticos’, I think it was after we signed Ronaldo and

Beckham, or at some point between their arrivals. . . We didn’t

win a single Champions League title. People remember that era

because Florentino Pérez put a lot of hard work into raising the

club’s international profile [. . .] What I mean to say is that yes,

it was a great time to be at the club, professionally it was

amazing to play alongside such great players, but the truth of

the matter is that we didn’t win as much as people think. David

Beckham only won the league once, and that was after Fabio

Capello told him he would never play again. He did though, and

we went on to win the league title quite heroically. However,

that was back in 2007.

196

2. FC Barcelona and La Masia

Més que un club.

197

More than a club.

That is the motto and internal heartbeat of FC Barcelona.

198

Rather than

trying to keep up with Real Madrid in spending money, the Catalan-based giants

looked inward for a youthful approach in building a team. Barcelona already

195

. Real Madrid captured the first five European Cup titles (the precursor to the Champions League)

from 1955-1960. See LOWE, supra note 180, at 146-148.

196

. Raúl: “Galacticos? We Didn’t Win a Single Champions League”, MARCA (Jan. 12, 2015),

https://www.marca.com/en/2015/01/12/en/football/real_madrid/1421071542.html.

197

. The motto the club lives by means it spends every day working to not only be the best but to make

the world into a better place by making it happen in both men’s and women’s sports. FC BARCELONA, More

Than, BARÇA TV+ (May 26, 2019, 4:32 AM), www.fcbarcelona.com/en/club/more-than-a-club. See also

Andres Hatum & Luciana Silvestri, What Makes FC Barcelona Such a Successful Business, HARV. BUS. REV.

(June 16, 2015), https://hbr.org/2015/06/what-makes-fc-barcelona-such-a-successful-business.

198

. See FC BARCELONA, supra note 197. The club believes that not only winning and losing matters,

but the style in which the game of football is played is also paramount.

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556 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

had one of the premier soccer academies in Europe prior to Bosman.

199

Opening

in 1979, La Masia (translated as “The Farmhouse” in Catalan)

200

is the youth

academy for FC Barcelona’s men’s soccer team.

201

It’s also known as “the

cradle of Barcelona’s youth system.”

202

In 1988, Dutch superstar Johan Cruyff,

who played for the Catalan side from 1973-78, returned to Barcelona as

manager a decade later.

203

The former Ajax player, who learned from Ajax’s

academy, overhauled La Masia and created something that was more than

simply training center for sport.

204

Cruyff instilled a philosophy that included

young players learning to play the same as the senior team, the value of

teamwork and being part of something special.

205

“We’re trying to be the first

in innovation,” said Barcelona director Patrick Kluivert, who also played for

both Ajax and Barcelona.

206

“I think we are ahead of a lot of big clubs and we’re

trying to continue that philosophy.”

207

This philosophy included providing a nurturing environment for youth

players, including coaches, teachers, directors, advisers, and other support staff.

Academy director Carles Folguera captured the essence of what La Masia

aspires to be:

A kid who is formed from 12 or 13 until the age of 18, he feels

the club. Nobody has to tell him when he arrives at the first

team what the club means. There’s a feeling of identity here.

The majority of players in the first team know what Barça is.

208

199

. Michael LoRé, La Masia Celebrates 40 Years of Being FC Barcelona’s Heart, FORBES (Nov. 3,

2019, 7:00 AM), https://www.forbes.com/sites/michaellore/2019/11/03/la-masia-celebrates-40-years-of-

being-fc-barcelonas-heart/?sh=440a1baa332b.

200

. Id.

201

. Although synonymous with men’s soccer, La Masia is also home to Barcelona’s women’s team

since as early as 1988, as well as numerous other sports. Of its 600-plus youth athletes, a little more than half

are soccer players while other sports include handball, basketball, futsal, and roller hockey. See id.

202

. LOWE, supra note 180, at 385. The original La Masia was a peasant farmhouse built in 1702. Id.

203

. LoRé, supra note 199.

204

. Id.

205

. Id.

206

. Id.

207

. Id.

208

. Grant Wahl, Inside Barcelona: Club’s Success Rooted in Rich Youth Academy, SPORTS

ILLUSTRATED (Oct. 4, 2012), https://www.si.com/more-sports/2012/10/04/barcelona-youth-academy-la-

masia.

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Post-Bosman, La Masia became a critical component of maintaining cost

controls. New York Times writer Jeré Longman likened La Masia to growing

one’s own vegetables because it saves money on the market.

209

Since Barcelona

could develop its own players, it could be very particular and judicious in

scanning the market for players that would supplement its core of La Masia

graduates.

210

Since the turn of the 21

century, Real Madrid spent €1.2753

billion on players compared to Barcelona’s €837.8 million.

211

So how did Barcelona reach, if not surpass its Spanish rival? Its decision to

invest in La Masia and develop its stars paid off in spades. Eight La Masia

graduates in the mid-2000s—goalkeeper Victor Valdes, center-backs Gerard

Pique and Carles Puyol, midfielders Xavi Hernandez, Andres Iniesta and Sergio

Busquets and forwards Pedro along with Lionel Messi—formed the core of one

of the greatest teams in soccer history.

212

From 2005-06 to 2014-15, La

Blaugrana won four Champions League titles, six Spanish La Liga titles, three

Copa del Rey cups, three UEFA Super Cups and three Club World Cup titles.

213

Barcelona’s apex may have been between 2009 and 2011. In 2009 alone,

Barcelona captured six titles playing a passing-first style cemented by its La

Masia core and developed by manager Josep “Pep” Guardiola.

214

The Spaniard,

Guardiola, previously coached the Barcelona youth team and was himself a La

Masia product.

215

Barcelona supplemented its core talent with a handful of

select outsiders, such as Samuel Eto’o, Thierry Henry, Dani Alves, and Eric

Abidal.

216

The next year, all three finalists for the 2010 Ballon d’Or (given to

the world’s best player) came from Barcelona’s academy—Xavi, Iniesta, and

Messi.

217

Barcelona finished off its run in 2011 by smashing Manchester United

3-1 in the Champions League final at Wembley Stadium, which left United

manager Sir Alex Ferguson impressed:

209

. Jeré Longman, The Catalan Way to Grow Players on Home Soil, N.Y. TIMES (May 26, 2011),

https://www.nytimes.com/2011/05/27/sports/soccer/la-masia-a-model-for-cultivating-soccer-players.html.

210

. Id.

211

. LOWE, supra note 180, at 388.

212

. Dúnia Martín, The Greatest Teams of All Time: Barcelona 2008-12, UEFA (last updated January

13, 2017), https://www.uefa.com/uefachampionsleague/news/0253-0d7ff5460779-90f1672a7e36-1000—

the-greatest-teams-of-all-time-barcelona-2008-12/.

213

. LOWE, supra note 180, at 388.

214

. These titles were the Champions League, La Liga, Copa del Rey, UEFA Super Cup, Spanish Super

Cup, and FIFA Club World Cup. See Sam Marsden & Eduardo Fernandez-Abascal, Barcelona’s Six-Trophy

Year: Oral History of How Guardiola & Co. Did the Unthinkable in 2009, ESPN (Dec. 19, 2019),

https://www.espn.com/soccer/barcelona/story/4015273/barcelonas-six-trophy-year-oral-history-of-how-

guardiola-and-co-did-the-unthinkable-in-2009.

215

. LOWE, supra note 180, at 384.

216

. See generally Marsden & Fernandez-Abascal, supra note 214.

217

. Wahl, supra note 208.

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They’re the best in Europe, no question about that. In my time

as a manager, I would say they’re the best team we’ve faced.

Everyone acknowledges that and I accept that. It’s not easy

when you’ve been well beaten like that to think another way.

No one has given us a hiding like that. It’s a great moment for

them. They deserve it because they play the right way and enjoy

their football.

218

3. Financial Fair Play to the Rescue?

While Real Madrid’s Galácticos were the posterchilden for spending in the

early part of the twenty-first century, they were more of a symptom than the

actual problem. Between skyrocketing television deals, gate receipts, and other

sources, such as European qualification and merchandising, revenues at

European clubs tripled from 2000 to 2016, reaching €18.5 billion.

219

From a

macro point of view, that is the good news for soccer in Europe. However, that

number fails to tell the story of the European economic crisis and the instillation

of cutback measures due to the global financial crisis in 2007-08.

220

During this

time, prominent clubs such as Portsmouth in the English Premier League and

Glasgow Rangers in Scotland, were sent into administration and UEFA was

nervous about a collapse of European football.

221

Just before the crisis, Leeds

218

. Dominic Fifield, Sir Alex Ferguson: No One Has Given United a Hiding Like Barcelona Did,

GUARDIAN (May 28, 2011, 8:36 PM), https://www.theguardian.com/football/2011/may/29/sir-alex-ferguson-

barcelona.

219

. Cassell Bryan-Low & Tom Bergin, Special Report: How Top Soccer Clubs Clashed with Rules on

Financial Fair Play, REUTERS (Nov. 2, 2018, 12:15 PM), https://www.reuters.com/article/us-soccer-files-

fairplay-specialreport/special-report-how-top-soccer-clubs-clashed-with-rules-on-financial-fair-play-

idUSKCN1N7230.

220

. Originating in the United States with the financial collapse of Lehman Brothers, Europe’s fiscal

crisis involved banks removing themselves from Interbank lending and deleveraging or simply closing credit

lines, which halted lending. This led to a rise of unemployment as manufacturers drastically cut production

and attempted to minimize costs and other overhead. However, not all members of the European Union were

affected the same, nor are all economists in full agreement on the causes and gravity of the financial crisis.

See Marcin Szczepanski, A Decade on from the Crisis: Main Reponses and Remaining Challenges, EUR.

PARL. RSCH. SERV. (Oct. 2019), https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/642253

/EPRS_BRI(2019)642253_EN.pdf.

221

. During the crisis, around a dozen small clubs around Europe disappeared from professional soccer:

UD Salamanca, Lorca and CD Badajoz in Spain; Evian Thonon Gaillard in France; Haarlem, Veendam,

AGOVV, and RBC Roosendall in Holland; FC Brussels and Beerschot in Belgium; MyPa in Finland and

Gretna in Scotland. Eastern Europe also has vanishing clubs depending on if wealthy Russians purchase clubs,

especially in Ukraine. See KUPER & SZYMANSKI, supra note 188, at 85.

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United, one of England’s most storied clubs, had to seek financial protections

from creditors after reaching the Champions League semifinals in the early

2000s only to be relegated from the Premier League by 2004 and owing massive

sums of money to players.

222

Many European nations responded to massive

piling debts with austerity policies and bailouts to stem the crisis

223

Debt is not uncommon for clubs to have, and UEFA responded to the crisis

by creating the Financial Fair Play system (FFP).

224

In 2009, a UEFA review

showed that more than half of European clubs suffered financial losses.

225

The

essential goal was simple and had an altruistic feel about it: create a system

where clubs are self-sustaining and live within their means.

226

Clubs under FFP

had to be transparent about revenues and balance them against expenditures.

227

FFP regulations established a financial breakeven constraint requiring clubs to

not exceed financial losses over a certain ceiling for any rolling three-year

period.

228

The goal was to simply prevent further teams from collapsing into

administration or worse: folding altogether.

229

However, this self-sustaining model may have simply been a red herring.

For starters, if clubs were to collapse under the weight of debt, almost all

European clubs would face extinction.

230

If clubs do “fail”, they get relegated

via the pyramid to a lower league. Soccer’s ecosystem is such where it does not

face competitors and its brands carry loyalty throughout Europe and the

world.

231

Further, as authors Simon Kuper and Stefan Szymanski correctly point

out, soccer rarely suffers from government interference and is unlikely to

become obsolete due to innovative technology as the game is much like what it

was a century earlier.

232

222

. Nicholas Kumleben, Europe’s Super League is Dead, but UEFA Needs Reform, FOREIGN POL’Y

(July 18, 2021, 6:00 AM), https://foreignpolicy.com/2021/07/18/soccer-football-uefa-europe-super-league-

champions-euros-reform/.

223

. Szczepanski, supra note 220, at 2-3.

224

. Kumleben, supra note 222.

225

. Brian Homewood, Platini Warns Clubs Over Finances as Losses Grow, REUTERS (Jan. 11, 2011,

11:39 AM), https://www.reuters.com/article/idINIndia-54084020110111. Then UEFA general secretary

Gianni Infantino said 56 percent of European clubs were in the red in 2009 with high wages identified as the

main cause of overspending. Id.

226

. Bryan-Low & Bergin, supra note 219.

227

. Id.

228

. Milad Emamian, Financial Fair Play Regulations’ Unintended Effects, REGUL. REV. (Nov. 14,

2019), https://www.theregreview.org/2019/11/14/emamian-financial-fair-play-regulations-unintended-

effects/.

229

. See id.

230

. KUPER & SZYMANSKI, supra note 188, at 85.

231

. Id. at 87.

232

. Id.

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A major side effect of these FFP regulations were to make clubs think like

a business. Teams were concerned just as much about profits as winning games

and could undermine the competitive quality of a league.

233

For example, in

looking at the big five leagues, only the Premier League has had more than three

champions since the implementation of FFP.

234

Conversely, if teams want to

overspend with a wealthy owner, they can by sacrificing profit for pride and

trophies.

235

The last time a club from outside the big five leagues won the

Champions League was back in 2004 with FC Porto from Portugal.

236

However, spending large sums of money does have a benefit for labor. The

policy of overspending has the effect of injecting money, through transfers, back

into other clubs that could use it.

237

From 2011 to 2020, there were fourteen

transfers with fees that were more than $100 million.

238

In August 2021,

Manchester City paid £100 million to Aston Villa for the services of midfielder

Jack Grealish.

239

Villa’s ownership said they were taking that money and

investing it in three or more players to help strengthen the overall team and

balance the squad out on the pitch.

240

All told, England dwarfs the rest of the

world in spending, shelling out $12.4 billion in transfers in the past decade.

241

233

. Emamian, supra note 228.

234

. Germany has been a monopoly with Bayern Munich winning nine straight titles since 2012-13

through 2020-21. Only Borussia Dortmund in 2010-11 and 2011-12 won German Bundesliga titles since FFP.

In Italy, Juventus won nine straight Serie A titles before Inter Milan won the crown in 2020-21. Barcelona

and Real Madrid had captured all but two titles during this time with both going to Atletico Madrid. Paris

Saint-Germain won seven times in a nine-year stretch with the Parisian team finishing second in the other two

years. Meanwhile, the Premier League has shown a fair amount of balance as Chelsea, Liverpool, Leicester

City, Manchester City and Manchester United have all won league titles since 2010.

235

. Hungarian economist Janos Kornai calls this “the soft-budget constraint” where Communist bad

companies were propped up despite overspending on their annual budget and not making profits. See KUPER

& SZYMANSKI, supra note 188, at 88.

236

. David Moore, The Last Team Not From the ‘Big Five’ to Win the Champions League, 18 (Apr. 11,

2020), https://the18.com/en/soccer-news/last-team-not-in-big-five-to-win-champions-league#:~:text=You%

20have%20to%20go%20back,3%2D0%20in%20the%20final.

237

. See generally Ten Years of International Transfers, FIFA 14-15, https://digitalhub.fifa.com/

m/47c2f0047dd61f3b/original/FIFA-Ten-Years-International-Transfers-Report.pdf (last visited Apr. 1,

2022).

238

. Id.

239

. Rob Goldberg, Jack Grealish Completes Manchester City Transfer from Aston Villa on 6-Year

Contract, BLEACHER REP. (Aug. 5, 2021), https://bleacherreport.com/articles/10009737-jack-grealish-

completes-manchester-city-transfer-from-aston-villa-on-6-year-contract.

240

. Football Warriors, Aston Villa CEO Explains Details Behind Jack Grealish’s £100m Move to Man

City, YOUTUBE (Aug. 5, 2021), https://www.youtube.com/watch?v=UBOm6iwdZY4.

241

. Ten Years of International Transfers, supra note 237, at 46.

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D. Tertiary Years—Petro Fueled and State Run

One reason not explicitly given for justifying FFP in Europe was that the

old guard was nervous about a new type of player—the behemoth “Sugar

Daddy”. Large and successful clubs like Manchester United, Liverpool, Real

Madrid, and Bayern Munich were already profit-making organizations that were

among the most valuable sports properties in the world.

242

In a way, established

clubs wanted to maintain their dominance over the European landscape and felt

these new “Sugar Daddies” would upset the balance—or more accurately—

would be a threat to their own dominance.

243

The first one to upset the status quo was Chelsea when Russian oil oligarch

Roman Abramovich took over the Blues in 2003.

244

At that time, the Blues were

£80 million in debt and days away from a financial crisis.

245

Needing only about

thirty minutes of negotiating, Abramovich purchased Chelsea for £140 million

and almost immediately wiped out Chelsea’s debt.

246

Not long after,

Abramovich approached Arsenal regarding star striker Thierry Henry and

offered the Gunners £49.999 million for the superstar.

247

Arsenal chairman

David Dein wondered why Abramovich would be willing to spend nearly thirty-

five percent of his purchase price of the club to buy one player.

248

Abramovich was just getting started as he spent nearly $320 million over

his first two years of transfer windows to collect as much talent as possible.

249

Even without acquiring Henry, Chelsea spent £100 million in the summer of

2003 alone to bring in players with massive reputations: Claude Makélélé,

Hernán Crespo, Adrian Mutu and Juan Sebastián Verón.

250

Wenger himself

called Abramovich’s money-no-object philosophy “financial doping” within

242

. Mike Ozanian, The World’s Most Valuable Soccer Teams: Barcelona Edges Real Madrid to Land

at No. 1 for First Time, FORBES (Apr. 12, 2021, 9:16 AM), https://www.forbes.com/sites/mikeozanian

/2021/04/12/the-worlds-most-valuable-soccer-teams-barcelona-on-top-at-48-billion/?sh=ce666516ac56.

243

. See ROBINSON & CLEGG, supra note 1, at 150.

244

. Abramovich has an estimated net worth somewhere between $15 and $18 billion. The fifty-four-

year-old oversees Chelsea, which is worth an estimated $3.7 billion. See Bloomberg Billionaires Index: #110

Roman Abramovich, BLOOMBERG, https://www.bloomberg.com/billionaires/profiles/roman-abramovich/

(last visited Apr. 1, 2022); See #142 Roman Abramovich, FORBES, https://www.forbes.com/profile/roman-

abramovich/?sh=23b05033134a (last visited Apr. 1, 2022).

245

. LAWRENCE, supra note 164, at 197.

246

. ROBINSON & CLEGG, supra note 1, at 88.

247

. Id. at 93.

248

. When he later found out that UBS, the firm that vetted Premier League clubs for Abramovich, said

that Arsenal was “categorically” not for sale, Dein allegedly slammed a table so hard his soup spilled because

he believed Arsenal’s ownership would have sold at that price and it would have been the start of an Arsenal

dynasty with Abramovich and Wenger in control. See ROBINSON & CLEGG, supra note 1, at 93.

249

. ROBINSON & CLEGG, supra note 1, at 89.

250

. LAWRENCE, supra note 164, at 198.

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562 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

soccer.

251

Whatever term is used, it proved successful as the Blues moved in on

Manchester United and Arsenal’s dominance of the Premier League, capturing

back-to-back titles in 2004-05 and 2005-06.

252

Since Abramovich took over for

Chelsea, the Blues have won five Premier League titles, five FA Cup crowns

and made four appearances in the Champions League final, winning in 2012

and 2021.

253

Abramovich’s success only paved the way for even larger oil money

pocketbooks to enter the sport. Abu Dhabi’s Sheikh Mansour bought

Manchester City in 2008, and Qatar Sports Investments group, led by Qatar ruler

Tamim bin Hamad Al Thani, purchased a controlling stake in Paris Saint-

Germain in 2011.

254

Mansour is worth likely more than $22 billion, and bin

Hamad has the entire oil-rich state of Qatar available for funds.

255

With these

seemingly never-ending pockets of cash, neither wasted much time in collecting

talent, no matter the cost.

256

By 2019, Manchester City fielded the first team to

cost €1 billion in transfer fees and add-ons.

257

The spending spree has resulted

in plenty of domestic success for the Sky Blues, winning five Premier League

titles and two FA Cup crowns while securing many of the best talents around

the world like Argentina’s Sergio Kun Aguero, Belgium’s Kevin De Bruyne,

251

. Id. at 197. Without Abramovich’s money, Arsenal’s financing of Emirates Stadium forced Wenger

to begin “Project Youth” as the Gunners only spent £1.5 million on goalkeeper Jens Lehmann during their

Invincibles season of 2003-04.

252

. ROBINSON & CLEGG, supra note 1, at 89-90.

253

. Jon Prada (Billy Munday trans.), How Abramovich’s Investment Has Built a Chelsea for the Present

and the Future, MARCA (May 31, 2021, 2:10 PM), https://www.marca.com/en/football/champions-league/

2021/05/31/60b4ce4f46163faf168b4578.html.

254

. Rayhan Uddin, PSG vs Manchester City: How Gulf-Owned Teams Diverged on Football’s Future,

MIDDLE E. EYE (April 27, 2021), https://www.middleeasteye.net/big-story/qatar-uae-psg-manchester-city-

european-super-league.

255

. See id.; Who Is Man City Owner Sheikh Mansour and What’s His Net Worth?, AS ENGLISH (May

27, 2021, 4:02 PM), https://en.as.com/en/2021/05/25/soccer/1621955923_952375.html.

256

. In fairness, each group addressed the infrastructure of the club. Sheikh Mansour bin Zayed al-

Nahyan has invested more than £1.3 billion in the club as of 2018, which includes facilities, feeder clubs and

an extensive youth system. See David Conn, Manchester City Accounts Show Sheikh Mansour Has Put £1.3bn

Into Club, GUARDIAN (Sept. 13, 2018, 12:38 PM), https://www.theguardian.com/football/2018/sep/13/

manchester-city-accounts-sheikh-mansour. Meanwhile, PSG has greenlit a €250 million investment into a

training center and youth academy. See Steven Impey, PSG’s ‘€250m’ Training Centre Given Green Light,

SPORTSPRO, July 23, 2019, https://www.sportspromedia.com/news/psg-ligue-1-poissy-paris-soccer-training-

centre-development.

257

. Christopher Simpson, Man City Have First Billion-Euro Squad in History Ahead of PSG, Real

Madrid, BLEACHER REP. (Sept. 9, 2019), https://bleacherreport.com/articles/2852983-man-city-have-first-

billion-euro-squad-in-history-ahead-of-psg-real-madrid.

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and England’s Raheem Sterling.

258

In 2021, Manchester City lost its first

Champions League final to Chelsea.

259

Meanwhile, PSG dominated the French League upon Qatar’s purchase,

winning seven out of eight Ligue One titles with the likes of Thiago Silva,

Zlatan Ibrahimovic, and Edinson Cavani from 2012 through 2020.

260

In 2017,

PSG went all out when it purchased Brazilian superstar Neymar for a world-

record shattering €222 million transfer fee from Barcelona and followed that

with €180 million for French young starlet Kylian Mbappe from Monaco in the

same transfer window.

261

Neymar’s transfer was twice the world record of $110

million by Paul Pogba to Manchester United from Juventus.

262

For all the

domestic success it has had, PSG, like Man City, is judging its standards by

European success. Outside of a finals appearance in 2020, where it lost to

Bayern Munich, PSG has failed to reach the semifinals of the Champions

League in all but one year of that competition.

263

In an interesting twist, PSG is taking its model of paying for the best players

and eliminating the middleman to try and win the title in 2021-22. Utilizing

Bosman transfers, PSG brought on free transfer former Real Madrid captain

Sergio Ramos (thirty-five years old), Liverpool midfielder Georginio

Wijnaldum (thirty), AC Milan goalkeeper Gianluigi Donnarumma (twenty-

two), and Barcelona superstar Lionel Messi (thirty-two) to try and get the

Parisians into the winner’s circle within Europe.

264

While PSG’s four “free

258

. Oscar Rickett, Manchester City, Abu Dhabi and the Rise of English Football’s New Order, MIDDLE

E. EYE (May 17, 2019, 21:01 UTC), https://www.middleeasteye.net/big-story/manchester-city-abu-dhabi-

football; Man City Crowned 2020-21 Premier League Champrions, SKY SPORTS (May 24, 2021, 18:00 UK),

https://www.skysports.com/football/news/11679/12287450/man-city-crowned-2020-21-premier-league-

champions.

259

. See David Hytner, Chelsea Win Champions League After Kai Havertz Stuns Manchester City,

GUARDIAN (May 29, 2021, 16:57 EDT), https://www.theguardian.com/football/2021/may/29/manchester-

city-chelsea-champions-league-final-match-report-kai-havertz.

260

. Paris Saint-Germain Profile, PLANETSPORT, https://www.planetsport.com/soccer/paris-saint-

germain (last visisted Mar. 26, 2022).

261

. Julien Laurens, Neymar: How the Record-Breaking €222m Move to PSG Unfolded, GUARDIAN

(Aug. 4, 2017, 2:00 PM), https://www.theguardian.com/football/2017/aug/04/neymar-how-record-breaking-

move-to-psg-unfolded; Robin Bairner, Monaco Star Mbappe Completes €180 Million Paris Saint-Germain

Move, GOAL (Aug. 31, 2017, 12:30 PM), https://www.goal.com/en-us/news/monaco-star-mbappe-completes-

180-million-paris-saint-germain/13k7x4cozao191hcdgpw1kkrrt.

262

. Ed Aarons, Paul Pogba: Manchester United Confirm Record £93.2m Signing on Five-Year Deal,

GUARDIAN (Aug. 9, 2016, 2:35 AM), https://www.theguardian.com/football/2016/aug/09/manchester-united-

sign-paul-pogba-93-million-juventus.

263

. Jeorge Bird, Have PSG Ever Won the Champions League? History, All-Time Tournament Record

for Legiue 1 Giants, SPORTING NEWS (Mar. 9, 2022), https://www.sportingnews.com/us/psg/news/have-psg-

ever-won-champions-league-history-record-tournament/mrcksnt2nz3gdnokvn9kppft.

264

. Sean O’Brien, Loaded Paris Saint-Germain Add Sergio Ramos to Incredible 2021/22 Squad Filled

with Free Transfers Like Georginio Wijnaldum and Italy’s Gianluigi Donnarumma to Follow, TALKSPORT

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564 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

transfers” did not cost anything in transfer fees, the Qataris expected to spend

around €100 million euros just in 2021-22 on those four players in wages, with

more than a third earmarked for Messi.

265

The reason Barcelona could not keep

Messi, despite both sides displaying mutual interest in resigning, was that the

Catalans face nearly a billion euros of debt.

266

Some of this debt is through

simply poor acquisitions after the era of Xavi and Iniesta ended.

267

However, a

sizeable portion of the blame can be attributed to the global pandemic that

affected Europe in March 2020 and continued through most of 2021.

268

It shows

the value of having deep pockets in the game—even if its publicity is not

necessarily positive as Panja noted with the Messi to PSG signing:

Feels quite distasteful that as football industry convulses amid

the ongoing pain of the coronavirus pandemic, a handful of

clubs spending like bandits as if the world hasn’t changed.

Regulators nowhere to be seen as power centre shifts (possibly

permanently) to oil baron teams.”

269

III. LOOKING AHEAD

In twenty-five years, the Bosman ruling’s impact upon soccer has been

nothing short of extraordinary. Freedom of movement allows players the

opportunity to obtain market value for their skills. Players in Europe enjoy the

most profitable leagues in the world with a global reach approaching 400 million

viewers for the Champions League final alone.

270

Worldwide, around 63% of

17,077 players moving between clubs in 2020 were out-of-contract free

(July 8, 2021, 11:04 AM), https://talksport.com/football/908870/paris-saint-germain-sergio-ramos-free-

transfers-georginio-wijnaldum-gianluigi-donnarumma/; Lionel Messi Joins Paris Saint-Germain on Two-

Year Contract After Leaving Barcelona, SKY SPORTS (Aug. 11, 2021, 11:46 AM),

https://www.skysports.com/football/news/11820/12378087/lionel-messi-joins-paris-saint-germain-on-two-

year-contract-after-leaving-barcelona.

265

. Andrew Gasteium, PSG Wields the Power of the “Free” Transfer, SPORTS ILLUSTRATED (Jul. 8,

2021), https://www.si.com/soccer/2021/07/08/psg-transfers-sergio-ramos-wijnaldum-donnarumma-hakimi.

266

. Lowe, supra note 5.

267

. See id.

268

. Id.

269

. Tariq Panja (@tariqpanja), TWITTER (Aug. 7, 2021, 10:03 AM), https://mobile.twitter.com/

tariqpanja/status/1424023464030085126.

270

. Super Bowl vs Champions League Final, BLIZZARD (Feb. 9, 2021), https://theblizzard.co.uk/super-

bowl-vs-champions-league-final/news/.

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agents.

271

But there are unintended consequences the Bosman ruling created that

many have noticed, and some are making calls to put restraints back into the

game.

The most recent example of this is the idea of a European Super League

where fifteen of the largest clubs in the world would be “permanent members”

of a twenty-team, pan-European league.

272

This would have included six

members of England, three from Spain, three from Italy, and three other

permanent members along with five members that would “rotate in” through

promotion and relegation.

273

The goal would be to bring in “guaranteed income”

and to create matches that “matter” between the biggest clubs.

274

One of the key

elements within the proposal is the idea of bringing back cost controls on

players, whether it comes in the form of a salary cap or some sort of luxury

tax.

275

New transfer rules, like FFP, and other restraints on cost control all center

around the idea that clubs cannot control their own spending and, therefore, need

help to keep their own players. It also furthers the notion that soccer ownership

should be done only by businesspeople.

276

While the notion of a pan-European

Super League is not new, the idea of having little or no relegation or promotion

could make it run afoul of European Competition Law.

277

Even if it were legal,

the political aspect of the closed Super League turned many off to it as noted

soccer writer and former Sports Illustrated correspondent Grant Wahl tweeted:

The European Super League with “permanent places for

founding members” was a bad idea that deserved to die. But the

spending controls insisted upon by Liverpool and others for it

were not a bad idea. Barcelona in particular is a preventable

financial mess right now.

278

271

. Free Agent Footballers: The 20th Anniversary of a Dramatic Rule Change, FIFPRO,

https://www.fifpro.org/en/who-we-are/our-organisation/history/free-agent-footballers-20th-anniversary-of-

a-dramatic-rule-change/ (last visited Apr. 1, 2022).

272

. Cady Siregar, What is the Super League? European Club Breakaway Tournament Format & Teams

Explained, GOAL (Apr. 19, 2021), https://www.goal.com/en-us/news/what-is-super-league-european-club-

breakaway-tournament/1579xlo7z4uaq1vk0jnkxvzl5c.

273

. Id.

274

. Id.

275

. See Murad Ahmed & Arash Massoudi, Leaked Super League Plans Reveal Goal of US-style Football

Finances, FIN. TIMES (Apr. 20, 2021), https://www.ft.com/content/e80299a4-8012-447a-8512-

c24e149304b1.

276

. KUPER & SZYMANSKI, supra note 188, at 120.

277

. PIJETLOVIC, supra note 93, at 304-05.

278

. Grant Wahl (@GrantWahl), TWITTER (Aug. 7, 2021, 1:44 PM), https://twitter.com/grantwahl/

status/1424078961307422725?s=21.

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566 MARQUETTE SPORTS LAW REVIEW [Vol. 32:2

Others are calling for reform for competitive purposes, citing the fact that

most European leagues are dominated by one or two clubs—PSG in France,

Real Madrid/Barcelona in Spain, Bayern Munich in German, and Juventus in

Italy.

279

Only in England has there been some amount of parity, though it is still

limited as Leicester City in 2016 is the only club outside the big six that has

won the title since Blackburn Rovers in 1995.

280

Interestingly, 1995 was also

the last year pre-Bosman ruling and similar to today, Blackburn Rovers had one

of the largest payrolls in the Premier League that year.

281

Having clubs with

Petrol money—Chelsea, Manchester City, and Paris Saint-Germain—also

throws off the “competitive balance” aspect of the sport. Former Manchester

United player Gary Neville chastised his former club and Liverpool for

“breaking away into a league without competition, that they can’t be relegated

from.”

282

UEFA is looking at implementing one element from the Super League. In

August 2021, writer Martyn Ziegler wrote that UEFA wanted to create a salary

cap and establish a luxury tax to limit teams spending no more than seventy

percent of its revenue on salaries.

283

This program would also eliminate the FFP

program by UEFA.

284

This proposed system raises issues regarding restraint of trade as it relates

to Bosman. First, because UEFA is proposing it, this may be more politically

appealing to its constituents. But if this is implemented and a team (say

Manchester City) is forced to pay a luxury tax, how will the money be

redistributed? Will teams in the league, where the club in question is from,

benefit from it? Or does the money over the luxury tax go back to every other

club in Europe? Or does it simply go to clubs that are deemed “small” and what

will be defined as “small”? Additionally, a salary cap or luxury tax may run

afoul of Bosman, because it may be considered a restraint on a player’s ability

to work because teams may not sign a player because of the rule.

279

. Steve Menary, Few Clubs Dominate Europe’s Football Leagues: Champions League Diversity

Index 2019/20, PLAY THE GAME (June 25, 2019), https://www.playthegame.org/news/news-articles/

2019/0579_few-clubs-dominate-europes-football-leagues-champions-league-diversity-index-201920/.

280

. See ROBINSON & CLEGG, supra note 1, at 254-59.

281

. ROBINSON & CLEGG, supra note 1, at 56. Owner Jack Walker spent £50 million in 1994-95 on

winning the league but were so unprepared for success that Blackburn began selling off its best players and

by 1999, the club was relegated from the Premier League. See ROBINSON & CLEGG, supra note 1, at 59-61.

282

. Siregar, supra note 272.

283

. Martyn Ziegler, UEFA Plans Salary Cap and ‘Luxury Tax’ for Teams Who Breach It, SUNDAY

TIMES (Aug. 12, 2021, 5:00 PM), https://www.thetimes.co.uk/article/uefa-plans-salary-cap-and-luxury-tax-

for-teams-who-breach-it-5vrwf8cm7.

284

. Id.

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2022] BOSMAN’S IMPACT ON FOOTBALL 567

Despite the rhetoric of restraints and cost control, it is worth noting the

significant gains made by athletes themselves and the benefits they enjoy in the

modern game. Since Bosman, players are getting what they deserve based on

their skill and playing ability.

285

Nine players in European football made at least

€24 million in 2020, led by Messi’s €126 million.

286

In the Premier League, the

average salary for a player is around £2,843,000 per year.

287

All these numbers

are expected to climb as leagues prepare for new television contracts to kick in,

such as ESPN’s eight-year contract for $1.4 billion to broadcast La Liga

exclusively in the United States.

288

CONCLUSION

The impact of Bosman twenty-five years on touches nearly all aspects of

European sport and is among the most important cases of lex sportiva to be

decided by the European Court of Justice. The ECJ’s elimination of the restraint

on trade and the nationality “3+2” rule allowed athletes an opportunity to play

their sport and receive market value for their services for the first time. After a

hundred years or more of little player movement, Bosman opened a tidal wave

of diaspora for players and put player empowerment at the forefront.

Teams reacted in many ways to find efficiencies in this era of a newly

opened market. Some simply threw money at the problem to try and buy their

way to titles as Chelsea and Real Madrid did. Meanwhile, Arsenal and

Barcelona relied on their own internal structure and organizational

fundamentals to enter the market only selectively when it would maximize its

return. As the third decade of the twenty-first century rises, oil barons and state-

run clubs like Manchester City and PSG attempt to blend resourcefulness with

massively deep pockets of cash to win. And “financial doping” is not necessarily

a poor strategy as spending generally leads to success for both player and

club.

289

285

. KUPER & SZYMANSKI, supra note 188, at 17.

286

. Christina Settimi, The World’s Highest-Paid Soccer Players 2020: Messi Wins, Mbappe Rises,

FORBES (Sept. 14, 2020 06:00 PM), https://www.forbes.com/sites/christinasettimi/2020/09/14/the-worlds-

highest-paid-soccer-players-2020-messi-wins-mbappe-rises/?sh=1343939f1cff.

287

. See KIERAN MAGUIRE, THE PRICE OF FOOTBALL 72 (2nd Ed. 2021). In the English Championship,

that number goes down to around £827,000 per year while League One is $178,000 and League Two comes

in around $89,000. Scotland’s Premiership is around $267,000 per year. Id.

288

. Christopher Harris, Disney Confirms ESPN+ Acquisition of La Liga Rights, WORLD SOCCER TALK

(May 13, 2021), https://worldsoccertalk.com/2021/05/13/disney-confirms-espn-acquisition-of-laliga-rights-

in-major-broadcast-deal/; ESPN Secures “US$1.4bn” La Liga US Rights Deal Until 2029, SPORTSPRO (May

14, 2021).

289

. KUPER & SZYMANSKI, supra note 188, at 17.

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Bosman’s greatest challenge in the next twenty-five years may be the

politics at play in Europe. With players signing extravagant contracts for

generational wealth, supporters may call on leagues and UEFA to take control

and reign in spending under the banner of “competitive balance.” Even large

teams, such as Liverpool, are discussing the benefits of bringing in cost control

and Barcelona’s nearly billion-euro debt suggests teams are unable to police

themselves, especially when chasing glory on the pitch.

290

Conversely, clubs

like Arsenal that have run themselves within FFP regulations may rarely see the

heights it achieved when winning the Premier League without a loss in 2004,

because it may not be willing to put out enough money for the supporters’ liking

to compete with its rivals.

Perhaps Italian star Georgio Chinaglia summed up Bosman’s impact the

best. When talking with his late friend about an off the field soccer matter,

Relevant Sports Executive Chairman and SiriusXM presenter Charlie Stillitano

quoted Chinaglia, who explained: “Charlie, it’s the money, you moron.”

291

290

. Tales Azzoni, With Lionel Messi Gone, FC Barcelona President Says Club’s Debt is $1.6 Billion,

L.A. TIMES (Aug. 16, 2021), https://www.latimes.com/sports/story/2021-08-16/barcelona-president-says-

club-debt-1-6-billion-lionel-messi.

291

. Peter Nolan, Charlie Stillitano Talks La Liga to Miami, GOTSOCCER MAG. (Nov. 4, 2018),

http://blogs.gotsoccer.com/?p=19926.