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Football clubs may seek compensation for the training of young players

Tue 16th Mar 2010 | Legal

Football clubs may seek compensation for the training of young players whom they have trained where those players wish to sign their first professional contract with a club in another Member State

The amount of that compensation is to be determined by taking account of the costs borne by the clubs in training both future professional players and those who will never play professionally

The Professional Football Charter of the Fédération française de football contains rules applicable to the employment of football players in France. According to the Charter, ‘joueurs espoir’, are football players between the ages of 16 and 22 employed as trainees by a professional club under a fixed-term contract. At the end of his training, the Charter obliges a ‘joueur espoir’ to sign his first professional contract with the club that trained him, if the club requires him to do so.

In 1997, Olivier Bernard signed a ‘joueur espoir’ contract with Olympique Lyonnais for three seasons. Before that contract was due to expire, Olympique Lyonnais offered him a professional contract for one year. Mr Bernard refused to sign that contract and signed a professional contract with Newcastle United FC, an English football club.

Olympique Lyonnais sued Mr Bernard, seeking an award of damages against him and Newcastle United of € 53 357.16, equivalent to the salary which Mr Bernard would have received over one year if he had signed the contract offered by Olympique Lyonnais2.

The Cour de cassation, before which a final appeal was brought, asked the Court of Justice whether the principle of freedom of movement for workers permitted the clubs which provided the training to prevent or discourage their ‘joueurs espoir’ from signing a professional contract with a football club in another Member State inasmuch as the signature of such a contract might give rise to an order to pay damages.

The Court states first that Mr Bernard’s gainful employment constitutes an economic activity and, as such, is subject to European Union law. The Court notes that the Charter has the status of a national collective agreement aimed at regulating gainful employment and, as such, also falls within the scope of European Union law.

The Court then holds that the rules at issue, according to which a ‘joueur espoir’, at the end of his training period, is required, under pain of being sued for damages, to sign a professional contract with the club which trained him, is likely to discourage that player from exercising his right of free movement. Consequently, those rules are a restriction on freedom of movement for workers.

However, as the Court has already held in the Bosman case3, 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.

In considering whether a system which restricts the freedom of movement of such players is suitable to ensure that the said objective is attained and does not go beyond what is necessary to attain it, account must be taken of the specific characteristics of sport in general, and football in particular, and of their social and educational function.

In the Court’s view, the prospect of receiving training fees is likely to encourage football clubs to seek new talent and train young players.

The Court states that 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 capable of actually 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.

It follows that the principle of freedom of movement for workers does not preclude a scheme which, in order to attain the objective of encouraging the recruitment and training of young players, guarantees compensation to the club which provided the training if, at the end of his training period, a young player signs a professional contract with a club in another Member State, provided that the scheme is suitable to ensure the attainment of that objective and does not go beyond what is necessary to attain it.

With regard to the French scheme at issue in the main proceedings, the Court notes that it is characterised by the payment to the club which provided the training, not of compensation for training, but of damages, to which the player concerned would be liable for breach of his contractual obligations and the amount of which was unrelated to the real training costs incurred by the club. The damages in question were not calculated in relation to the training costs incurred by the club providing that training but in relation to the total loss suffered by the club. Therefore, the Court held the French scheme went beyond what is necessary to encourage recruitment and training of young players and to fund those activities.

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