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FREE MOVEMENT OF PLAYERS FREE MOVEMENT OF PLAYERS IN THE IN THE

EUROPEAN UNION EUROPEAN UNION

MICHELE COLUCCIMICHELE COLUCCIwww.colucci.euwww.colucci.eu

Email: info@colucci.euEmail: info@colucci.euTilburg University Tilburg University

Academic year 2007 -2008Academic year 2007 -2008

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EC TREATY AND EU EC TREATY AND EU CITIZENSHIPCITIZENSHIP

Every person holding the nationality of a Member State shall be a citizen of the Union. (art. 17 EC).(art. 17 EC).Every citizen of the Union shall have the right to move and reside freely within the territoryof the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.(art. 18 CE).(art. 18 CE).

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FREE MOVEMENT OF WORKERSFREE MOVEMENT OF WORKERS

Artt.39 - 42 EC. Artt.39 - 42 EC. Workers have the right Workers have the right toto::– accept offers of employment actually made;;– move freely within the territory of Member

States for this purpose;– to stay in a Member State for the purpose of

employment;;– to remain in the territory of a Member State

after having been employed in that State..

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THE EC TREATYTHE EC TREATY

Self employed personsSelf employed persons: : – Right of establishment(artt. 43-48 EC) and(artt. 43-48 EC) and– Freedom to provide services Freedom to provide services (artt. 49-55 (artt. 49-55

EC): EC):

the right to take up and pursue activities as self-employed persons and to set up and manage undertakings ..

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CASE LAW OF ECJ: evolutionCASE LAW OF ECJ: evolution

Definition of «worker»:Definition of «worker»:– A PERSON PERFORMS SERVICES OF SOME A PERSON PERFORMS SERVICES OF SOME

ECONOMIC VALUE FOR AND UNDER THE ECONOMIC VALUE FOR AND UNDER THE DIRECTION OF ANOTHER PERSON IN RETURN DIRECTION OF ANOTHER PERSON IN RETURN FOR WHICH HE RECEIVES REMUNERATION FOR WHICH HE RECEIVES REMUNERATION ((Lawrie-BlumLawrie-Blum, C-66/85)., C-66/85).

«Community meaning»(«Community meaning»(Unger,Unger, C-75/63). C-75/63).Fundamental Principle: broad interpretation Fundamental Principle: broad interpretation ((Levin, Levin, C-53/81).C-53/81).Exceptions and derogations: strict interpretation Exceptions and derogations: strict interpretation ((Kempf,Kempf,C-139/85).C-139/85).

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EQUAL TREATMENTEQUAL TREATMENT

BAN ON “DIRECT” DISCRIMINATIONS BAN ON “DIRECT” DISCRIMINATIONS Art. 12 EC on the basis of nationalityArt. 12 EC on the basis of nationalityArt. 39 EC:…Art. 39 EC:…– Access to employmentAccess to employment– PayPay– Employment conditionsEmployment conditions

Association agreement, Co-operation Association agreement, Co-operation agreement, and so on.agreement, and so on.SPORT: Balog case, Simutenkov, caseSPORT: Balog case, Simutenkov, case

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« COVERT DISCRIMINATIONS »« COVERT DISCRIMINATIONS »

NO « NO « COVERT FORMS OF COVERT FORMS OF DISCRIMINATION” which, by the DISCRIMINATION” which, by the application of other criteria of application of other criteria of differentiation, lead in fact to the same differentiation, lead in fact to the same result . result . (cause 152/73 Sotgiu)(cause 152/73 Sotgiu)

YES, only in case of « objective reasons »; YES, only in case of « objective reasons »; proportionality test!proportionality test!

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THE UEFA HOMEGROWN THE UEFA HOMEGROWN PLAYER RULEPLAYER RULE

THE UEFA HOMEGROWN PLAYER THE UEFA HOMEGROWN PLAYER RULERULEHomegrown: player trained by a club for 3 Homegrown: player trained by a club for 3 years when he is between 15 and 21 years when he is between 15 and 21 years oldyears old– 2006/2007 2006/2007 4 up to 254 up to 25– 2007/20082007/2008 6 up to 256 up to 25– 2008/20092008/2009 8 up to 258 up to 25No discrimination on the basis of nationality.No discrimination on the basis of nationality.

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Reverse discriminationReverse discrimination

“ “National law” v. “EU law”:National law” v. “EU law”:– Different scopeDifferent scope– different goalsdifferent goals

EU Law does not apply to purely EU Law does not apply to purely internal matters.internal matters.

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Discriminatory act: Discriminatory act: – ordinary legislation, ordinary legislation, – Collective bargaining agreements,Collective bargaining agreements,– Regulations of private associations,(Bosman, Regulations of private associations,(Bosman,

C-415/93): FIFA, UEFA,C-415/93): FIFA, UEFA,

Limits to free movement:Limits to free movement:– Public administration;Public administration;– Public order and securityPublic order and security– Public healthPublic health

Discriminatory act Discriminatory act and and

limit to free movementlimit to free movement

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TERRITORIAL SCOPE TERRITORIAL SCOPE

The EUROPEAN UNION: 27 Member The EUROPEAN UNION: 27 Member StatesStates

New scenario in the European Union New scenario in the European Union Market: the 2+3+2 rule!Market: the 2+3+2 rule!

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The case law of the ECJThe case law of the ECJ

““SSport is subject to Community law in so far as it port is subject to Community law in so far as it constitutes an economic activity within the constitutes an economic activity within the meaning of Article 2 of the Treaty” meaning of Article 2 of the Treaty” ..

Walrave case, C-36/74.Walrave case, C-36/74.

Donà v. Montero case, C- 13/76(nationality Donà v. Montero case, C- 13/76(nationality clause).clause).

sports or economic activity?sports or economic activity?– C-51/96 C-51/96 Deliège case”, Deliège case”, C-176/96, C-176/96, Lethonen case, Lethonen case,

Meca – Medina case(doping).Meca – Medina case(doping).

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THE BOSMAN caseTHE BOSMAN casecause C -415/93cause C -415/93

DAVID v. GOLIAH!DAVID v. GOLIAH!

Sport= economic activity= Sport= economic activity= the end of the end of transfer compensationtransfer compensation

Quid training ? Quid training ?

The new FIFA regulations on Status and The new FIFA regulations on Status and Transfer of Players Transfer of Players

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CONVERGENCE BETWEEN CONVERGENCE BETWEEN FREE MOVEMENT AND FREE MOVEMENT AND COMPETITION RULESCOMPETITION RULES

Art. 81 - 82 EC:Art. 81 - 82 EC:– NO agreement which may affect trade between NO agreement which may affect trade between

MSs and which have as their object or effect the MSs and which have as their object or effect the prevention, restriction or distortion of prevention, restriction or distortion of competition.competition.

– NO “abuse of dominant position”.NO “abuse of dominant position”.

BOSMAN caseBOSMAN caseBALOG case BALOG case (never delivered).(never delivered).PIAU on players’ agentsPIAU on players’ agents

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Keeping in mind that...Keeping in mind that...

EU players are:EU players are:– EU citizensEU citizens– WorkersWorkers

Their rights are enshrined in the Treaty Their rights are enshrined in the Treaty and must be granted!and must be granted!