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Is there a new Bosman-ruling on its way?

By Walter Broeckx

We all know that the Bosman-ruling has changed football a lot. One could summarize it like this:

Prior to the Bosman ruling, professional clubs in some parts of Europe (but not, for example, in Spain and France) were able to prevent players from joining a club in another country even if their contracts had expired. In the United Kingdom, Transfer Tribunals had been in place since 1981 to resolve disputes over fees between clubs when transferring players at the end of their contracts. The Bosman ruling meant that players could move to a new club at the end of their contract without their old club receiving a fee. Players can now agree a pre-contract with another club for a free transfer if the players’ contract with their existing club has six months or less remaining.

The European court of justice ruled that the regulations prior to their ruling was placing a restriction on the free movement of workers and was prohibited by Article 39(1) of the EC treaty.

So a relative unknown Belgium football player changed the complete system.

And it seems that our Belgian justice department is working on a new kind of Bosman-ruling. In what a small country can have a big influence I might say.

Anyway the case this time is about a player having a contract. The case of Mohamed Dahmane.  A French-Algerian football player who played for Racing Genk in 2008.

After a conflict with the manager of Racing Genk he was send to the reserves and had to train with the coach of the U14 team.  Dahmane took this as an insult and made an end to his contract himself by writing a letter to the club telling them he would walk away from them.

Racing Genk went to the Employment Tribunal as it is called in Belgium where they deal with complaints between companies and their employees. And in the first ruling the court said that Dahmane had to pay the remainder of his contract out to the club in compensation. This was the wages for the 36 months he still had on his contract. Or the nice sum of almost 900.000 euro.

Dahmane went to the Appeal Court and they recently decided that the sum that someone has to pay for breaking a contract has to be ‘reasonable’ and therefore the whole 36 months was not reasonable and that it should be restricted to a maximum of 12 months. So Dahmane only had to pay 220.000 euro to Racing Genk as a compensation for breaking his contract.

Thats fine for Dahmane of course as he now only has to pay a fraction of the original damages he had to pay. Maybe we would use the Dahmane-damages words in the future when we speak of similar cases that might happen.

So what is the big deal now. Well the fact is that the ruling itself means that there is no difference between other working people and football players in Belgium when it comes to make an end to a contract between an employee and and employer. So that is nice as we don’t want any discrimination.

But of course the big issue is that this could be taken as a precedent and as we know the sharks in the football world this will be used and forced upon in other cases.

So a footballer in Belgium (and probably later on in the whole of Europe) can back out of his contract if he pays the wages he would receive for the remaining months of his contract in the running season.  The amount he has to pay will be the remaining months of his contract multiplied by 2. With a minimum of 50% of his yearly wages and a maximum of his complete yearly wages.

So what will be the danger? Any player will now have the opportunity to do this at any time during his contract. And he can go away from a club whenever  he wants in fact. As long as he pays a maximum sum equal to his yearly wages.

People who look at it from a purely legal side in Belgium  are happy with the ruling as they say it means that all people are treated in the same way.

But football clubs fear that this will have a negative impact on the way they will operate. And in a perverse way this could make players transfers more ‘easier’.

An example. If you have a good player in Belgium and his club wants to sell him for 15.000.000. And he is on a salary of 500.000 euro per year (which is a big contract in Belgium!). So this player might consider on breaking his contract and paying 500.000 and move to another team. As you understand the new club he is moving to might hand him this 500.000 euro themselves as this is much cheaper than the 15.000.000 they would have to pay if they would transfer him via the normal way.

So for Belgium clubs it looks as if the last big transfers sums have been paid to them when they have a top talent. Breaking the contract will be a much cheaper way of doing deals with Belgium teams.

I must say that for the moment this ruling only is valid in Belgium of course. But if it would ever be challenged in the European courts it might be the start of a new Bosman ruling.  And I wouldn’t be surprised if some clever managers will try to bring this to the European courts in the future.

And finally one detail that is amazing. The lawyer that forced the Bosman-ruling was a certain Luc Misson. And who do you think that the lawyer was for Mohamed Dahmane? Yep, Luc Misson it was. I could say that Mr. Misson is on a ‘mission’ to change football…

 

The books

 

34 comments to Is there a new Bosman-ruling on its way?

  • Mike T

    @Walter

    I don’t know the ins and outs of this case(the players age and length of contract) but it seems to me that the courts ruled in accordance of Article 17 (Webster ruling) something that already applies Europe wide

    http://sport.stv.tv/football/scottish-premier/254922-the-webster-ruling-article-17-explained/

  • WalterBroeckx

    Mike T,
    this was different as he was only at his club since the start of that season with the long term contract almost completely ahead of him and he was only 25 years young at the time.

  • menace

    off topic – anyone have stats on how many days we were top in 89 when we won at Liverpool. Getting annoyed with the current City will win being top for 15 days.

  • nicky

    Once upon a time, I welcomed Bosman as the deliverer of professional footballers from slavery.
    Now, having regard to the infamous player power practised at Stamford Bridge and at Old Trafford, the wheel seems to have turned full circle…..and not IMO for the better 🙂

  • menace

    The settlement for Dahmane was based only on wages which is not complete. The value of a player is not only wage but includes form, history and fitness for purpose. There are a lot of other aspects like cost of training, merchandise etc. that can also be included.

    The beauty of a simple system might get rid of the agent which means a lot of money staying in the game.

  • Mike T

    @Walter

    As I said I didn’t know the inns and outs of this case.

    Will be interesting to see how this plays out. Not so sure it will end up in anything other than tears

  • WalterBroeckx

    Probably will MIke T, probably will.

    Belgian clubs are very much afraid that this will bring an end to any transfer sum coming in and that players will have even more power.

    On the other hand clubs might be tempted also to get rid of players if they don’t need/want them any more and they cost too much money.
    In a way it could mean that a club that has a player on a 3 year contract and with that player having a very serious injury and maybe being out for a whole season could break the contract and pay a minimal (reasonable) fine. Leaving the player out of a job and out of income. And no chance to get a new income as he is injured.

    Looking at it: yeah tears it will be…

  • menace

    @Walter there are some rules about terminating employment of people on sick leave (injured player). So that might mean double wages and compensation.

  • TommieGun

    @ Nicky – as you probably know, legal changes in the world often have pendulum-like effects. Sadly, it never rests in the middle.

    My best example is with laws that protect people who complain against sexual offences, and prevents their identity from being exposed. The goal: to encourage sex victims to file complaints, so that they will not be afraid of media exposure which will enhance the trauma.

    The pendulum swung too far. Now, people can file false compaints about sex offences that never happened, and the (real) victim, being the falsely accused, cannot do anything about it because they cannot know who filed the false charge.

    Law is always bad. The only question is – which is the least damaging law.

    Now regarding the ruling –

    Normally, it would be very difficult for an employer to contend that a specific employer, requesting to terminate his employment agreement prior to the contractual end date, is responsible for damages which are greater than what was ruled in the above case. When you think about specially qualified employees (such as in hi-tech industry) they are (a) compensate according to their abilities, i.e., it is usually not worth it for them to leave and (b) their value lies with the intellectual property which pursuant to law belongs to the employer.

    So what would a football club contend? That they relied on that footballer to stay? That he is irreplacable? These are not very good arguments, since as we know, everybody has a replacement. So from a purly legal point of view I think the ruling is justified.

    Another support for that ruling is that the injured club can seek remedy from another source, which is not the player: the buying club. The buying club, I presume, will not enjoy the benefits of employee’s rights legislation and would be a very natural target for a monetary claim for damages.

  • Micheal Ram

    I think this case is unique and not enough start a revolution. Any young players who started a small club or bought over small fee, and eventually wanted by major clubs in Europe with huge fee lingering cannot just do a Dahmane. The developing club can sue him or can charge the major club for the developing fees. No universities will educate the medical protégée for free and let him go and make himself and the hospital he works a lot of money. Unethical and injustice. EU will interfere on this.

  • Jax

    TommieGun
    How secure is a commenter on a blog against a libel lawyer who wants to identify them for an action on behalf of e.g. a referee or the PGMOL who consider that they’ve been libelled? As much as I believe in unconscious bias affecting the outcome of games I would never say “A” ref is bent or “B” organisation is corrupt on a public forum, but people make these accusations on here, twitter & Facebook regularly with apparent impunity. Makes you think doesn’t it?

  • TommieGun

    @ Jax –

    ** this is not legal advice **

    I’ve been trying to imply that for a year or so…

    My area of expertise is civil and commercial litigation and not specifically libel and slander cases (I did a few). As far as I know, in most western countries a commenter in an internet blog / forum is not only liable for libel – the operator of the site could be compelled, in some jurisdictions, to reveal the IP address of that commenter in order for the injured party to pursue litigation.

    However I am aware that there is a relatively new libel act in the UK (enacted 2013) and I have yet to read a high court ruling interpreting that act…

    But in my opinion, since we do not have EVIDENCE that prove that a certain ref / PGMOL are bent, I would never write it.

  • nicky

    @TommieGun,
    I would be interested to hear your view on player power and the increasing effect it seems to be having on the governance of (some) clubs 😉

  • TommieGun

    @ Nicky – I am sorry but I am not sure what you mean.

    I’ll tell you that, though – dividing the powers in world football into groups –

    (a) club owners
    (b) fans
    (c) governing bodies
    (d) players

    [sorry if I did not include every relevant function]

    I believe that players should have, from a moral point of view, most of the power. FFS they are the ones who PLAY the game. They are the real heroes, I have no desire to make the club owner richer or more powerful, for sure not the governing bodies. The fans can have more influence only if they own part of the club (like in some German clubs) but it would be at the expense of owners, and thus not on the same axis as players.

    So, generally speaking and still not being sure what you meant, I think that more power to players is advisable.

  • Jax

    Tommie

    Thanks very much for that info. There’s a good reason that UA might like to put up some sort of warning or disclaimer.

  • Gianni Dioro

    While the Bosman ruling made perfect sense, this new ruling doesn’t make any sense at all.

    It would be like if someone contracted with another to buy a million bushels of corn at $2 a bushel, and then the price of corn goes up to $8 a bushel. So the first party paid $2 million for a contract now worth $8 million.

    Should the other party be allowed to simply walk away from the contract by simply paying a fraction of the $2 million that the first party agreed to pay? I think not.

  • Jax & TommieGun,

    My position on refs and PGMOL is limited to accusing them of bias and incompetence and I don’t think that is controversial at all. I have difficulty making accusation of corruption no matter how strong my suspicion might be unless I have evidence. I have always expressed this in my writings for Untold and it is one area where I differ from most regulars here that I usually agree with.

    I strongly have doubts though that blogs or their commenters can be sued for libel on accusations like officials being bent. I just think that it is too trivial and will be difficult to litigate. On the hand, when you start hearing stuff like Mr X from club Y paid ref named Z to swing results in the favour of one team or the other, then we’ll be entering the libel territory.

    Apologies if I am wrong. I am not a lawyer but my common sense and life experience make me feel that the above might be true.

  • Ray from Norfolk, Virginia

    Selling clubs and their lawyers will be happy to allow this and tag a clause that says the new signing club will pay them market value by a coefficient of 0.1 for players in their last year of contract up to 0.9 for players in their first year of a long contract. Now, if the player wants to get out of football altogether, the player should owe nothing, but Dahmane wanted out because he was “demoted” so to speak, and in fact his market value is probably very low anyway. I think agents who deal with the elite players are interested in keeping transfer fees exorbitant as they receive a portion of such fees, and they stand to lose power if contracts are not respected.

  • TommieGun

    Bootoomee, I know that you differ from a lot of regulars here, regarding the “bent refs/bent pgmol” thing. I think that you should be awarded a pat on the back (from me at least) since your motives are not to be legally safe, but because you truly believe that you cannot accuse people of corruption without hard evidence.

    Now after that – you are wrong my friend. Not only will people who say “Ref X is corrupted/Riley is corrupted” could be liable for libel litigation, the recurring nature of those comments will make it very difficult to defend.

  • Jax

    TommieGun & BootooMee
    Regular accusers take note then! Perhaps the Blogger should warn commenters of dangerous accusations.

  • menace

    @TommieGun Bias has a whole load of evidence in the form of stats. Corruption has a whole load of evidence in the form of TV footage. Cheating can also be derived from TV footage. Besides, a libel case will open the floodgates for fair officiating and give Arsenal a good chance to break all kinds of records.

    The PG Monkey Officials Limited are like used tea bags; cold, damp and only fit for composting.

  • TommieGun

    @ Menace – alas, I wrote it before, the stats collected and shown here in UA cannot prove anything in a civil court, let alone criminal court. Don’t count on it to defend a position which calls someone corrupt. You can however call them unprofessional, based on the amount of mistakes made.

    “There are lies, damn lies, and statistics” (Mark Twain).

  • TommieGun,

    I concede to you on the grounds that this is your area. However, I am not talking from a strictly legal point of view when I said that accusation of corruption against PGMOL and its officers may be difficult to litigate against. If we are going about it in a strictly legal sense then of course anybody can be sued for such accusation. But I am talking more from the PR point of view. The FA, PL and indeed PGMOL are quasi public entities and just like politicians suck it up when members of the public accuse them of corruption – virtually always without any proof – they must live with it too. It is one of the downside of holding such positions. I am not saying that it is okay for them to have to go through this but it is a reality that they must live with otherwise they look like thin-skinned bullies rather than the victim of slander that they probably are.

    They could sue bloggers and commenters on the Internet for accusing them of corruption and they could win (I don’t personally think it will be easy) but they will lose more in the PR and goodwill department. My suspicion is that this is why they let sleeping dogs lie.

    On the other hand, direct accusations where names are named and figures are provided is a different matter.

  • TommieGun

    @ Bootoome – you are exactly right. PR is the reason why a lot of libel cases are not filed. A public figure does not want to be exposed to the risk of having to prove that it is not corrupt. Imagine the amount of evidence brought to show the contrary. Even if in the end the court will rule in the plaintiffs favor, the public damage will be done. In addition there is a specific defense in libel law which calls for protection when the subject is of public interest. However, since the new act was not (pursuant to my knowledge) interpreted by the high court, I cannot comment on it.

  • Josif

    Bosman-case changed football completely. In a way, you can’t feel anything but sympathy for players who had to oblige contracts that had expired.

    Then again, that rule destroyed clubs like Ajax on a long-term basis or at least threw them out of the league of the best European clubs. Super-rich clubs like AC Milan used to be or Oilers of all sorts are now can double or triple player’s salary. Ajax got peanuts for their best players in the mid-nineties and that was the most dominant team I’ve ever seen. (I’ve always wandered who would win a game between Van Gaal’s Ajax ’95 and Invincibles. It would be a spectacular match!)

    Dahmane ruling from what I’ve seen from this article might re-shape football again and sugar-daddies all over the world could open the most expensive bottles of champagnes as that wouldn’t hurt their transfer-budget.

  • jambug

    TommieGun.

    As you are versed in law and obviously have a good understanding of ‘Libel’ and ‘slander’, all be it in the USA, I would like to ask you a question that nobody on here as yet has been able to answer.

    You may or may not know that we have a National Radio Station here called (TalkSport).

    Talksport is disgracefully anti arsenal, but on it we have one presenter in particular who has an overt, pathological dislike of all things Arsenal, and Wenger in particular. On his show he has a daily ‘slot’ he calls the ‘Daily Arse’ in which he criticises us every single day.

    He has falsely accused us of faking players injuries so we can withdraw them from International duty.

    He has falsely accused us of planning deliberate Yellow Cards so players get suspensions at convenient times.

    That is just a sample of the tone of his ‘Daily Arse’

    Surely this is slanderous?

    Would a National Radio Station get away with a daily article criticising, for example ‘Nike’, every day of the week, making accusations that are simply not true?

    My argument is it just wouldn’t be allowed. Nike would have them in court before there feet touched the ground.

    Why do arsenal FC not challenge this?

    Or am I just being naïve here.

  • doug

    jambug
    I can imagine the media would love it if AFC took talkshite to court. Nasty Arsenal can’t take it they will say, amongst other bullshit. As for that dipshit presenter, fuck him, a prick with a mouth is what he is.
    My mind shuddered at that visualization, a knob with a mouth!

  • Mike T

    @Jambug

    Durham is a total wind up merchant who is tasked to create such a storm that you feel compelled to defend your team or should I say ring up and state your defence
    On Chelsea sites they often express their dislike of his views on matters Chelsea
    The trouble is that supporters of other clubs latch on to comments of his that are, shall we say, questionable and then take them as being gospel.

  • menace

    Sounds like a quality broadcaster this Durham bloke. He gets inside your head and pisses you off. The thing is not to listen or keep calling him and fill his boots with agreement. His ratings go up when his broadcasts get listeners reacting.

    I don’t listen to talkshite but I could tweet some specials for this dude.

  • jambug

    menace

    I stopped listening to Durham years ago.

    I occasionally listen to Hawksby and Jacobs because, although they can be a little snide at times, especially the Chelsea one, they are usually pretty funny and irreverent.

    I also listen to match commentaries.

    Alas others at work listen to it when I’m around and also take great pleasure in telling me some of the shit they’ve heard, and believed I might add.

  • Micheal Ram

    I think Bosman ruling is fully justified. Webster ruling is a bit unsporting and Dahmane case is just one off depending on the unique situation. What I want to highlight is the the Barcelona case where players dont get paid for months. If there is a ruling stipulates that if players dont get paid for more than three months, I think then players should have the right to walk away from the club. This is quite good for FFP enforcement actually.

  • TommieGun

    @ Jambug sorry for the belated response.

    Just to clarify – I’m not an expert on libel law in any jurisdiction.

    But in all common law jurisdictions the principals are the same. On the one hand we have the interest of protecting people reputation, and on the other hand there are other interests that are being balanced against that. That’s why some actions which would have been categorized as libelous can be defended. For instance: an academic criticism of someone’s work is defended, even if it might cause harm to that person or even humiliate them, because we don’t want academic work to be criticsm proof. Another example: when it’s a matter of public interest and the libelous publication is proven to be true, or at least, was believed as true based on reasonable evidence (because we want matters of public interest to be dealt with).

    This is all theoritcal.

    In practice, many actions which might be categorized as libelous are not pursued in court, because (for example):

    (1) The offender will claim that they spoke the truth. Now, let’s say someone wrote a post in a blog saying you fucked a goat. You sued for libel. You have to expect the trial to revolve now around whether you indeed FUCKED a goat, or just gave it oral sex… or maybe it was a donkey? In any event, since whatever exchanged within legal proceedings is immune from libel, and since the trial will mostly be held behind open doors – you might be in a much worse place, PR wise, than before the law suit (and it won’t really matter if you win in the end).

    (2) Suing for libel might be portrayed as a weakness. The suing individual will look like (or be portrayed like) they have something to hide or even worse. This is especially true when it’s a public figure / institution.

    So, even though it might be that the asshole on TalkShit would be theoritcally liable, I think that filing a law suit against him would be a bad idea.

    BTW Nike wouldn’t sue, Nike would just say – we are not going to put in adverts with you and/or any of your affiliates (which is btw why nobody talks about the sweatshops in south east asia where some products, including footwear, are being made, and I’m not naming names now…)

  • Jax

    Some truths emerging here.

  • Mike T

    The issue is as I see it is if the players in effect are able to attain employment rights akin to all other employees then at some point the worm will turn and clubs will sack players, make them redundant ,re-define their job which will in effect serve the players right.

    As a total aside, and I don’t know if its just an English FA or the exact rule but there s a rule in place which enables a player that haven’t played (featured) in 10% of a clubs first team fixtures to cancel his contract and walk away.