The Stamina of the Bosman Legacy
| Published date | 01 April 2015 |
| Date | 01 April 2015 |
| DOI | http://doi.org/10.1177/1023263X1502200207 |
| Subject Matter | Article |
22 MJ 2 (2015) 283
THE STAMINA OF THE BOSMA N LEGACY
e European Union and the Revision of
the World Anti-Doping Code (2011–2013)
J K*
ABSTRACT
e article argues that athletes’ right to take decision s from sports governing bodies and
specialized sporting bodie s to court for judicial review and redress is a cor nerstone of the
‘Bosman legacy’ which can be said to have been produced by the CJEU (then ECJ) Bosman
ruling. e article makes an empirically grounded assessment of thi s legacy by drawing
on the four contributions made by the EU to the re vision of the World Anti-Doping
Code (WADC) 2009 (2011–2013) to show how the EU used this opportunity to defend
athletes’ right to challenge sporting de cisions in court, and how the new post-Lisbon sports
policy competence granted in Article 165 TFEU (a merely supporting and coordinating
competence) has been used in this regard.
Keywords: Bosman Ruling; EU law; at hletes, employment, autonomy of sport; governing
bodies; arbitration, judicia l review and redress
* Currently (2014-) Legal O cer, Polic y & Consultation Un it, Secretar iat of the Europea n Data Protect ion
Supervisor (E DPS), Brussels, Belgiu m. Previously (2001–2014) Policy O cer (anti-doping desk o cer),
Sport Unit, Europe an Commission, Br ussels, Belg ium: represented the C ommission exter nally on anti-
doping matters, prov ided the secretariat to t he EU Working Group on Anti-Doping (2005–2010), the
EU Expert Group on A nti-Doping (2011–2014) (entrusted with the prep aration of the dra propos als
for the four EU contribut ions to the revision of the World Anti-Dopi ng Code, discuss ed in this paper)
and the Group of Exp erts ‘Doping in Recre ational Sport’ (2012–2014). Disclaimer: t he author is an
EU civil ser vant, yet opinions expressed are s olely those of the author and do not render o cial EU
positions. Ack nowledgements: the author wou ld like to thank D orthe Christen sen, Samy Hamama ,
Jörg Huperz, Micha l Krejza, Federico Ravigl ione and Carolin Schwegler for thei r respective input at
various stage s of the work which led, inter al ia, to this paper.
Jacob Kornbeck
284 22 MJ 2 (2015)
§1. THE RIGHT TO CHALLENGE SPORTING RULES
ASALEGACY OF THE BOSMAN RULING
e central argument of this article is that players’ and athletes’1 right to challenge
sporting rules can be identi ed as t he single most important legacy of the Court
of Justice of the European Union’s (CJEU) Bosman ruling.2 If it can be agreed that a
‘Bosman legacy’ exists, it is plausible to look for signs t hat the EU is applying it in its
sports policy in itiatives: for its strength or, in sporting parl ance, its stamina. is article
provides insights in the form of a st udy into the four contributions made by the EU to the
revision of the World Anti-Doping Code (WADC) 2009. While the Bosman ruling was
delivered at a time when the EU had no speci c sports policy mandate under the Treaty,
the WADC revision came a er the entry into force of the Lisbon Treaty and, thereby,
of the new Article 165 TFEU. e EU thus had a novel opportunity to use a s o law
competence to act political ly, w ith a potential for this to be relevant to hard law.
is article exa mines how the right of athletes to cha llenge sporting rules (in t his case,
anti-doping regulations) has been taken into account in the four contributions made
by the EU during the consu ltation phase for revising the WADC. ese submissions
(introduced below in more detail) followed a worldwide inv itation from the World Anti-
Doping Agency’s (WADA) to all stakeholders and a ll potentially interested part ies (legal
entities as well as individuals) to submit comments on the World Anti-Doping Code
2009 in view of its rev ision and replacement by the current Code 2015 (see below). e EU
contributions were adopted within forma l Council structure s on the basis of Article165
TFEU. is a sse ssme nt is made done by fo cusi ng o n th e EU c omme nts r elat ed to ath let es’
access to courts under the WADC (as opposed to the arbitrat ion system favoured by
sports gover ning bodies). e article concludes with a discussion of these init iatives in
the light of the Bosman legacy a nd raises the question: would they have been conceivable
without Bosman?
e importance of the CJEU ’s Bosman3 ruling for EU law in general is immense:
it occupies the twel h and last chapter in a book celebrating the rst 50 years of the
CJEU through its most i mportant judgments,4 and under certain ci rcumstances, it may
be considered more important tha n the self-evidently paradigmatic Va n Ge nd e n Lo os.5
According to an empirical su rvey of the CJEU’S case law using computerized network
1 While the ter m ‘players’ applies to the Bosman ruling (in kee ping with football lang uage), the World
Anti-Doping Code re fers to ‘athletes’ (in line w ith the central role pl ayed by the Olympic movement in
worldwide anti-dopin g governance).
2 Case C-415/93 Union Royale Belge de s Sociétés de Footbal l Association ASBL v. Jean-Marc Bo sman,
EU:C:1995:463.
3 Case C-415/93 Union Royale Belge de s Sociétés de Football A ssociation ASBL v. Jean-Marc Bosma n.
4 M. Poiares Maduro a nd L. Azoulai (eds.), e Cl assics of EU Law Revisi ted on the 50th Anniversary of
the Rome Treaty 2010 (Hart Publish ing, 2010).
5 Case 26/62 NV Algemene Transport- en Expedit ie Onderneming van G end & Loos v. Netherland s Inland
Revenue Administration, EU:C:1963:1.
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