The curious case of Olivier Bernard

By Will Wilson

Fans of the English Premier League will probably remember Newcastle and Southampton full-back Olivier Bernard – his attacking instincts meant he was good for Fantasy Football points, and he also provided us with that classic moment of football comedy.

However, he could soon rise above such trivia to become one of the most famous names in European football – not for what he’s done on the pitch, but for what he’s doing in the courts.

Bernard was a product of the youth system at French club Olympique Lyonnais in the late 1990s. However, aged 20, he decided not to accept a professional contract with Lyon, but instead to move to Newcastle United.

French football rules back then meant that any players aged between 16 and 22 should sign with the club which trained them. If they ignored this advice, they could not sign with another French club for three years.

After Bernard left for Newcastle, Lyon thought this principle should extend outside of France, and sued him in the French courts.

Lyon won, but the judgement was overturned on appeal and is now in the hands of the European Court of Justice (ECJ), the same place where another mediocre footballer – Jean-Marc Bosman – became a household name. Well, the ECJ has now released its preliminary Opinion on the case.

So, what’s it all about?

It’s simple: EU laws guarantee freedom of movement for all workers, including footballers. The question is: did the French rule break this law by restricting a player’s ability to move clubs?

Secondly, if this is a restriction, can it be justified in law by the sporting need to encourage youth development systems at clubs? Put another way: if this rule was not in place, the big clubs would just poach all the good young players, and the small clubs that trained them would get nothing. Clearly, that’s not good.

The legal Opinion clearly suggests that the rule requiring compensation to be paid merely because a player signs a contract with another European club is a restriction on freedom of movement for workers.

Which brings us on to question two: can this restriction be justified by the need to ensure small cubs are compensated for developing young players?

Well, the Opinion accepts that without the compensation payments (i.e. if big clubs could sign young players with no financial penalties) the system of youth development could break down. If small clubs can’t get money for their out-of-contract young players, then why bother to train them up at all? It is possible that by using this argument these rules could be justified in law – but it is by no means certain.

So, what will all this mean? Well, nothing, yet. This Opinion isn’t a final decision – we must wait for that over the coming months. Just as with Bosman, the consequences of the judgement could be enormous for the whole of football.

The principle at stake is crucial: can sporting authorities set their own rules in order to protect a desirable goal (in this case the training of young players – and in particular ensuring that such training can be an economic benefit to the smaller club)?

If this rule is struck down, how many other rules would be illegal overnight? The UEFA home-grown players rule? The system of tribunals that sets fees for young players (such as the recent John Bostock transfer)?

Once again, football’s future is in the hands of the judges in Luxembourg. You may not have heard the last of Olivier Bernard.

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