European Sports Law and Policy Bulletin THE BERNARD ... - Slpc.eu

EUROPEAN SPORTS LAW AND POLICY BULLETIN 1/2010JUSTIFICATION OF TRAINING COMPENSATION IN EUROPEANFOOTBALL: BOSMAN AND BERNARD COMPAREDby Frank Hendrickx∗SUMMARY: Introduction – 1. A brief overview of the discussion in the Bernard case– 2. Training compensation from Bosman to Bernard – 2.1 Facts and setting – 2.2Historical connection – 2.3 Underlying problem – 2.4 Considerations with regardto training compensation – 2.5 Specificity of sport versus the broader labour market– 2.6 Employment law perspectives in and beyond sport – 3. Justified trainingcompensation under EU free movement law – ConclusionsIntroductionOn 16 March 2010 the European Court of Justice delivered its judgment in thecase of Olympique Lyonnais SASP v Olivier Bernard, Newcastle United FC,in short referred to as the «Bernard case». 1 This contribution aims to provide ananalysis of the Bernard case in comparison with the Bosman case. 2 The Bernardcase shows a lot of resemblance with the Bosman case, but this is not verysurprising. Both cases have quite a lot in common. In both cases, the EuropeanCourt of Justice considered professional sport, more in particular football in aEuropean context, as an economic activity. On each occasion, a violation wasfound of European Union law, as there was an irregular limitation of the freemovement of workers. Both the Bosman and the Bernard case also have relevanceoutside the world of sport. They consider a broader labour market problem, whichis the encouragement of training of talented workers and the protection of humancapital investment of the employer.The present contribution aims to go beyond a mere comparison of theBosman and Bernard cases. Taking the cases together, an attempt is made todefine the conditions under which a training compensation in professional footballcould be considered valid under European free movement law.____________________∗Professor of Labour Law, University of Leuven, Jean Monnet Professor, ReflecT, Tilburg University.1ECJ, 16 March 2010, Olympique Lyonnais v Olivier Bernard and Newcastle United FC,C-325/08, not yet published in the ECR.2ECJ, 15 December 1995, Bosman, C-415/93, ECR I-4921.