The saga over Wimbledon's possible move to Dublin rumbles on. The latest salvo came from a London Evening Standard report claiming that Wimbledon now look certain to be relocated to Dublin within two years. Despite the opposition of the Football Association of Ireland and UEFA, the paper claims that the move cannot be stopped under EU law, and cites experts in European business and commercial law. This is not the first time that an EU law threat has been hinted at by Wimbledon's backers. Mind you, I have yet to hear the argument spelt out. Presumably the underlying argument is that EU law would prohibit either (i) the English FA expelling Wimbledon from the Premier League if they relocate their home venue to Dublin or (ii) the FAI refusing to authorise Wimbledon to play their home Premier League games in Dublin.
Legal bluff? I suspect so.
There is no doubt that rulings from the European Court of Justice over the years have upset some of the cosy traditional rules and restrictive practices of business and sporting associations. But these rulings should be read carefully and not exaggerated. Take the celebrated Bosman ruling in 1996, for example. Jean Marc Bosman was a professional footballer with FC Liege. His contract expired. He could not agree a new contract with his club and sought employment from other clubs, including clubs outside Belgium. He had little success and was effectively boycotted. He took an action against Liege in the Belgian courts and this went all the way to the ECJ in Luxembourg. The European court found that the provision in his contract with Liege whereby, if Bosman wished to move to another club on expiry of his contract that other club would have to pay Liege a lump sum, was in breach of Article 48 of the EC Treaty. Such "lump sum" provisions are bound to make it more difficult for a player to take up employment in a club in another member-state. Therefore they restrict the free movement of workers with the EU, reasoned the court.
The court dismissed arguments that the lump sum system was justified to keep a competitive balance between rich and poor clubs, or to promote talent and the training of young players. The evidence simply did not support these arguments. Anyway these objectives could be pursued by less restrictive means.
However, the Bosman ruling applies only to transfer of players between member-states, not within the one state. Nevertheless it sent shock waves throughout European football. The Bosman case has been raised in the context of the Wimbledon issue. But is Bosman helpful to Wimbledon's case? Not really. This is because it dealt with one issue - and only one issue - of EU law, namely the free movement of workers between States. Its only focus point was Bosman's employment relationship with his parent club.
The court made absolutely no ruling on a club's freedom to relocate its business or home venue to another state. In Wimbledon's case, a player's freedom to seek employment elsewhere will not be affected by the club's choice of home venue.
So what is Wimbledon's legal argument? The nearest analogy under EU law to Wimbledon's situation is probably the rules on freedom of establishment. These essentially cover the right of a company, or a self employed person, to set up business in another member-state. The European Court of Justice has always emphasised two basic principles in this field. Firstly, the home state must treat foreign companies setting up business in the same way as it treats home companies. Secondly, a state cannot hinder a home-based company seeking to relocate its centre of business to another state.
However - and this is the crucial point - the court has always recognised that national organisations for business and sport are a fact of life. And a very welcome one at that, providing they respect the two principles above. The court has also accepted that individuals or companies may be restricted from cherry picking between jurisdictions.
In one case, for example, the court ruled against a company trying to benefit from both UK and Dutch company law at the same time in order to escape certain responsibilities under the UK law. You can choose where to locate, but you can't have your cake and eat it.
Soccer in Europe is organised by national associations. That is a fact of life. The FA has jurisdiction for all English soccer, the FAI for Irish. If the FA decides in the overall interests of all its members that affiliated clubs should play their home matches within its jurisdiction, that is perfectly reasonable. Similarly, if the FAI decide that clubs playing within its jurisdiction may not at the same time insist on staying affiliated to an overseas association that is also reasonable. If clubs could insist on picking and choosing between football jurisdictions and country of home venue, then the whole organisation of European soccer by national associations could be undermined. Big brother in Luxembourg does not go that far.
To conclude: Wimbledon may move to Dublin if all the parties involved agree, including the FAI and the FA. But I know of nothing in EU law which obliges them to agree.
Denis Cagney is head of the EU/Competition Unit of Matheson Ormsby Prentice solicitors. The views expressed in this article are personal
