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

European Sports Law and Policy Bulletin 1/2010 - Chapter VIII 145activity in the territory of another Member State. 7National provisions which preclude or deter a national of a Member Statefrom leaving his country of origin in order to exercise his right to freedom ofmovement, therefore, constitute restrictions on said free movement even if theyapply without regard to the nationality of the workers concerned.The French sport rules applicable to Mr. Bernard, regarding «joueur espoir»,state that at the end of his training period, he is required under pain of being suedfor damages, to sign a professional contract with the club which trained him.These rules somewhat restrict the player’s right to free movement. 8 They arecontrary to the principle of freedom of movement enshrined in the Treaty on theFunctioning of the European Union.The Court recalls that a measure which constitutes an obstacle to freedomof movement for workers can be accepted only if it pursues a legitimate aimcompatible with the Treaty and is justified by «overriding» reasons in the publicinterest.Further, even if that is the case, the application of that measure would stillhave to be such as to ensure achievement of the objective in question and not gobeyond what is necessary for that purpose. 9More precisely the Advocate General in her opinion states: «Nationalmeasures liable to hinder or make less attractive the exercise of fundamentalfreedoms guaranteed by the Treaty may none the less escape prohibition if theypursue a legitimate aim compatible with the Treaty. In order for that to be so,however, they must fulfil four further conditions: they must be applied in a nondiscriminatorymanner; they must be justified by overriding reasons in the publicinterest; they must be suitable for securing the attainment of the objective whichthey pursue; and they must not go beyond what is necessary for that purpose». 10With regard to professional sport, the Court has already had occasion in theBosman case to hold that, in view of the considerable social importance of sportingactivities and in particular football in the European Union, the objective ofencouraging the recruitment and training of young players must be accepted aslegitimate. 11In considering whether a system which restricts the freedom of movementof such players is suitable to ensure that the said objective is obtained and does notgo beyond what is necessary to reach it, account must be taken of the specificcharacteristics of sport in general, and football in particular, and of their social andeducational function.____________________7ECJ, Bosman, cited above, para. 94; Case C-109/04 Kranemann [2005], ECR I-2421, para. 25;and Case C-208/05 ITC [2007], ECR I-181, para. 31.8ECJ, Bernard, para. 35.9ECJ, Bernard, para. 38; ECJ, Bosman, para. 104.10Opinion of Advocate General Sharpston, 16 July 2009, Olympique Lyonnais v Olivier Bernardand Newcastle United FC, C-325/08, not yet published in the ECR, para. 44.11ECJ, Bosman, para. 106.