Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC.
Date: 2010-03-16
27. First, it is to be remembered that, having regard to the objectives of the European Union, sport is subject to European Union law in so far as it constitutes an economic activity (see, in particular, Bosman , paragraph 73, and Case C‑519/04 P Meca-Medina and Majcen  v Commission  [2006] ECR I‑6991, paragraph 22).
28. Thus, where a sporting activity takes the form of gainful employment or the provision of services for remuneration, which is true of the activities of semi‑professional or professional sportsmen, it falls, more specifically, within the scope of Article 45 TFEU et seq. or Article 56 TFEU et seq. (see, in particular, Meca-Medina and Majcen  v Commission , paragraph 23 and the case-law cited).
30. Next, it is settled case-law that Article 45 TFEU extends not only to the actions of public authorities but also to rules of any other nature aimed at regulating gainful employment in a collective manner (see Bosman , paragraph 82 and the case-law cited).
31. Since working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by collective agreements and other acts concluded or adopted by private persons, a limitation of the application of the prohibitions laid down by Article 45 TFEU to acts of a public authority would risk creating inequality in its application (see Bosman , paragraph 84).
33. Finally, as regards the question whether national legislation such as the legislation at issue in the main proceedings constitutes a restriction within the meaning of Article 45 TFEU, it must be pointed out that all of the provisions of the FEU Treaty relating to the freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of the Member States at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (see, in particular, Bosman , cited above, paragraph 94; Case C‑109/04 Kranemann  [2005] ECR I‑2421, paragraph 25; and Case C‑208/05 ITC  [2007] ECR I‑181, paragraph 31).
34. National provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute restrictions on that freedom even if they apply without regard to the nationality of the workers concerned (see, in particular, Bosman , paragraph 96; Kranemann , paragraph 26; and ITC , paragraph 33).
38. A measure which constitutes an obstacle to freedom of movement for workers can be accepted only if it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons in the public interest. Even if that were so, application of that measure would still have to be such as to ensure achievement of the objective in question and not go beyond what is necessary for that purpose (see, inter alia, Case C‑19/92 Kraus  [1993] ECR I‑1663, paragraph 32; Bosman , paragraph 104; Kranemann , paragraph 33; and ITC , paragraph 37).
39. In regard to professional sport, the Court has already had occasion to hold that, in view of the considerable social importance of sporting activities and in particular football in the European Union, the objective of encouraging the recruitment and training of young players must be accepted as legitimate (see Bosman , paragraph 106).
41. In that regard, it must be accepted that, as the Court has already held, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players (see Bosman , paragraph 108).
42. The returns on the investments in training made by the clubs providing it are uncertain by their very nature since the clubs bear the expenditure incurred in respect of all the young players they recruit and train, sometimes over several years, whereas only some of those players undertake a professional career at the end of their training, whether with the club which provided the training or another club (see, to that effect, Bosman , paragraph 109).
45. It follows that a scheme providing for the payment of compensation for training where a young player, at the end of his training, signs a professional contract with a club other than the one which trained him can, in principle, be justified by the objective of encouraging the recruitment and training of young players. However, such a scheme must be actually capable of attaining that objective and be proportionate to it, taking due account of the costs borne by the clubs in training both future professional players and those who will never play professionally (see, to that effect, Bosman , paragraph 109).