The existence of justifications for obstacles to the freedom of movement of professional sportsmen must be assessed by the national courts.
Basketball is organised on an international level by the International Basketball Federation (FIBA). In 1996, the Belgian federation (FRBSB) included 11 of the 12 clubs in the first division of the Belgian national championship.
FIBA rules govern international transfers of players. The national federations must be guided by those rules when drawing up their own transfer rules.
The FIBA rules prohibit clubs in the European zone from fielding in national championships foreign players who have played in another country in the European zone, if they have been transferred after 28 February. After that date it is still possible, however, for players from non-European clubs to be transferred and to play.
Mr Lehtonen is a Finnish basketball player. At the end of the 1995/1996 season he was engaged by Castors Braine to take part in the final stage of the Belgian championship. Mr Lehtonen concluded a contract of employment as a remunerated sportsman with that club on 3 April 1996.
Castors Braine were twice penalised by matches being awarded to the opposing team, because of having fielded Mr Lehtonen, after another club had complained to the FRBSB of a breach of the FIBA rules concerning transfers of players within the European zone.
The Court of First Instance, Brussels, upon hearing an application by Mr Lehtonen and his club for the penalties imposed to be lifted and for no further sanction to be imposed to prevent Mr Lehtonen from playing in the championship, asked the Court of Justice in particular whether rules of a sports federation which prohibit a club from fielding a player in a competition if he has been engaged after a specified date are compatible with the principle of freedom of movement for workers.
The Court of Justice pointed out that sport is subject to Community law to the extent that it constitutes an economic activity within the meaning of the Treaty. In those circumstances, rules of organisation of sport, including those made by sports federations, must comply with Community law. Rules or practices which exclude foreign players from certain matches for reasons which are not of an economic nature (for instance, matches between national teams from different countries) are not, however, contrary to the principle of freedom of movement for persons.
The Court held that, as the participation of players in matches is the essential purpose of their activity, a rule which restricts such participation also restricts the chances of employment of the players concerned. Rules preventing Belgian clubs from fielding in championship matches basketball players from other Member States where they have been transferred after a specified date. Thus, in the Court's opinion, as regards championship matches, the rules preventing Belgian clubs from fielding basketball players from other Member States where they have been transferred after a specified date constitute an obstacle to the freedom of movement for workers.
However, the Court held that this obstacle may be justified on non-economic grounds which only concern sport as such. The setting of transfer deadlines may be intended to avoid distortion of the regularity of competitions, if it does not go beyond what is necessary for achieving that aim. It is for the national court to ascertain whether that last condition is satisfied.
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