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

EUROPEAN SPORTS LAW AND POLICY BULLETIN 1/2010JUDGMENT OF THE COURT OF 16 MARCH 2010 IN THE CASE C325/08: OLYMPIQUE LYONNAIS SASP V OLIVIER BERNARD ANDNEWCASTLE UNITED FCANALYSISby Gianluca Monte ∗SUMMARY: 1. Introduction – 1. 1 The facts – 1.2 The questions – 1.3 The ruling –1.4 Analysis – 2. The legal scope of the ruling – 3. The consequences of the rulingin other sectors besides sport – 4. The relation of the ruling with the Court’s pastcase law – 4.1 The application of EU law to sport – 4.2 The application of EU lawto acts adopted by private persons – 4.3 The definition of obstacles to free movementindependent of nationality – 4.4 The definition of the recruitment and training ofplayers as legitimate objective – 4.5 The analysis of training compensation schemes– 5. The question of the recognition of the specificity of sport – 6. The question ofthe validation of existing training compensation schemes, notably in football – 7.The question of the role of amateur sport1. IntroductionThe ruling of the Court in the Bernard case is of particular importance, as it is thefirst ruling, covering a sport-related case, adopted after the entry into force of theTreaty on the Functioning of the European Union (TFEU). The ruling makes anexplicit reference to article 165 TFEU which includes provisions on the objectivesand instruments for the EU’s action in the field of sport. The ruling also givesfurther insight into the Court’s interpretation of the issue of free movement ofprofessional sportspeople, 15 years after the landmark Bosman ruling. 1 The focusof the Bernard ruling concerns limitations to the EU’s free movement rules (article45 TFEU) arising from training compensation schemes existing in sport. The concept____________________∗The author of this article works as policy officer in the European Commission, DirectorateGeneral for Education and Culture, Sport Unit. This text is strictly personal and does not expressthe opinion of the European Commission.1ECJ, 15 December 1995, Bosman, C-415/93, ECR I-4921.