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

EUROPEAN SPORTS LAW AND POLICY BULLETIN 1/2010THE BERNARD CASE:AN OPPORTUNITY FOR ALL SPORTS STAKEHOLDERSby Michele Colucci ∗SUMMARY: Introduction – 1. The legal reasoning of the Court – 2. Alternativemeasures to training compensations – 2.1 Football: transfer compensation andsolidarity mechanism – 2.2 Basketball and the establishment of a «solidarity fund»– 2.3 Handball: negotiated compensation among the parties – 2.4 Rugby: effectiveand real training costs but also quality of training – 3. Training compensation andEU competition law – ConclusionsIntroductionFor the first time in the case Olympique Lyonnais v Olivier Bernard andNewcastle United FC (hereafter «Bernard») 1 the Court of Justice delivered ajudgement on a sport issue by making an explicit reference to the «specificity» 2 ofsport as it has been recognised in art. 165 of the Treaty on the Functioning of theEuropean Union. 3Fifteen years after the Bosman 4 judgement when the Court of Justice____________________∗Professor of International and European Sports Law, Tilburg University. President of the SportsLaw and Policy Centre. He is also a member of the FIFA Dispute Resolution Chamber and the EHF– ECA (European Handball Federation – Court of Arbitration).The Author wishes to thank Giuseppe Ferraro, Domenico Gullo, Karen L. Jones, and AdamWhyte, for their precious comments.1ECJ, 16 March 2010, Olympique Lyonnais v Olivier Bernard and Newcastle United FC,C-325/08, not yet published in the ECR.2A definition of «specificity» of sport is contained in para. 4.1. of the White Paper on Sport (2006)published by the European Commission and available at http://ec.europa.eu/sport/white-paper/index_en.htm (October 2010).R. BLANPAIN, M. COLUCCI & F. HENDRICKX, The Future of Sports Law in the European Union:beyond the EU Reform Treaty and the White Paper, Alphen aan de Rijn, Kluwer Law International,2008.3Art. 165 TFEU reads as it follows: «The Union shall contribute to the promotion of Europeansporting issues, while taking account of the specific nature of sport, its structures based onvoluntary activity and its social and educational function».4ECJ, 15 December 1995, Bosman, C-415/93, ECR I-4921.