The Advocate General looks at the transfer deadlines for players from Europe and countries outside Europe in the Belgian championship
This case is about transfer rules in professional basketball. Basketball is organised at international level by the International Basketball Federation (Fédération Internationale de Basket-ball, FIBA), whose rules must be followed by the national federations. As far as transfer rules are concerned, the Belgian federation (Asbl Fédération Royale Belge des Sociétés de Basket-ball, FRBSB) has three different transfer periods. For the 1995/1996 season, the season relevant here, a transfer between Belgian clubs was only possible for players before the start of the season, from 15 April to 15 May 1995. Players from the European zone, on the other hand, could be transferred up to 28 February 1996, and those from other countries as late as 31 March 1996.
Mr Lehtonen is a basketball player of Finnish nationality. In the 1995/1996 season he first completed the Finnish championship. After that he was engaged by the Belgian club Asbl Castors Canada Dry Namur-Braine for the final stage of the 1995/1996 Belgian championship. In a letter of 9 April 1996, FIBA refused to register Mr Lehtonen, on the ground that the transfer deadline of 28 February 1996 which applied to him had passed.
Even before that, on 6 April 1996, Castors Braine played Mr Lehtonen in a league match against Belgacom-Quaregnon. Castors Braine won the match 104-102. When the losing club lodged a protest against the result, the FRBSB awarded the match to Belgacom-Quaregnon as a 20-0 victory. That was on the ground that Mr Lehtonen had played in breach of the FIBA rules.
Mr Lehtonen and Castors Braine thereupon applied to the Court of First Instance, Brussels, for an interim order, essentially asking the court to quash the award of the match to Belgacom-Quaregnon by 20-0 and prohibit the Federation from imposing further sanctions on the club if it continued to play Mr Lehtonen. The Belgian court referred a question of the compatibility of the transfer deadlines with Community law to the Court of Justice of the European Communities.
The Advocate General, acting completely independently and impartially, assists the Court of Justice by examining the points of fact and law involved in the case, and proposes to the Court the answer which he thinks it should give to the national court's question. The Advocate General's Opinion is not binding on the Court.
Relevance of the question
In the Advocate General's view, answering the national court's question is still necessary. The main subject-matter of the dispute has lapsed, as it is no longer possible for Mr Lehtonen to play for Castors Braine in the 1995/1996 season. In the proceedings in the Belgian court, however, at least the decision on costs is still to come.
Effect on the freedom of movement of workers
In the Advocate General's view, Mr Lehtonen as a professional basketball player is a 'worker' within the meaning of Community law, and therefore is entitled to freedom of movement. The Belgian transfer deadlines in principle adversely affected freedom of movement, because once they had expired they prevented nationals of other Member States from leaving their own country in order to play basketball professionally in Belgium.
As justification for the transfer deadline concerning Mr Lehtonen, the FRBSB refers to the risk that competition within a championship might be distorted at a certain point by the engagement of new players. It says that the phasing of the transfer periods for players from the European zone and players from other countries is meant in particular to prevent it from being possible for players first to complete a national championship and then, following a transfer, to distort competition in the closing stages of another championship. The FIBA deadline was chosen to fall before the end of many European leagues which end early. The championships of other countries, in particular the USA, end later, on the other hand.
The Advocate General rejects justification based on the 'organisational autonomy of sporting federations', since the transfer deadlines interfered too much with the fundamental right of freedom of movement for workers, as the recruitment of sportsmen from other Member States was impossible at certain times.
On the other hand, in the Advocate General's view, the 'protection of a sporting competition against distortion' is in the public interest. Transfer deadlines could therefore be justified by 'preservation of the comparability of results'. A 'delayed transfer period' Ä i.e. taking effect not at the beginning of the season but at a later stage during it Ä could be appropriate, if it is not defined arbitrarily. A transfer period could therefore be justified for sporting reasons in the public interest, if the deadline for sportsmen who have been playing for clubs in other Member States is chosen in such a way that comparability of results in that competition is not affected by the transfers which take place before the transfer deadline. In the case of Belgium, however, there are different transfer deadlines, or rather 'staggered transfer periods'. With respect to Mr Lehtonen, the even later transfer deadline for players from other countries is to be taken into account. If, however, because of a staggered transfer deadline players who had been playing in non-European countries could still be transferred to clubs in the Belgian league, after this was prohibited for players who had been playing in other European States, then comparability of results was jeopardised. Consequently, staggered transfer deadlines of that kind are not suitable for that purpose. In the Advocate General's view, a transfer deadline can therefore be justified on sporting grounds in the general interest only if the period for players who have previously played for clubs in other Member States is no shorter than that for players who have played in non-member countries.
Another justification for a staggered transfer deadline could be the aim of 'preventing a transfer movement', that is, the transfer of a large number of players between federations whose championships end early and those whose championships end later. However, the Advocate General has doubts as to the appropriateness, necessity and proportionality of the staggered transfer deadlines for this purpose, and consequently rejects this justification.
On the question of infringement of rules to protect trade in the common market from distortion of competition, the reference for a preliminary ruling does not, in the Advocate General's view, contain any indication of the facts which might be a reason for competition law to apply.
In conclusion, the Advocate General proposes that the Court of Justice should give the following answer to the national court:
Rules of a sporting federation under which a basketball club is prohibited from playing a professional basketball player who is a national of a Member State in a match (for the first time) if he was engaged only after a specified transfer date may be justified on sporting grounds in the public interest, and are therefore compatible with the freedom of movement of workers, if that date is chosen, for professional sportsmen who have previously played for clubs in other Member States, in such a way that the competitions are not distorted and in particular that the comparability of results of such a competition is not affected by transfers of players which take place before the transfer deadline, and if the period is no shorter than that for professional sportsmen who have played in non-member countries.
This is an unofficial document for use by the media and is not binding on the Court of Justice. It is available in Dutch, English, French, German, Greek and Italian.
For the complete text of the Opinion in the languages available, please consult our Internet home page www.curia.eu.int at around 3 p.m. today.
For further information, please contact Fionnuala Connolly, (tel. (00352) 4303 3355; fax: (00352) 4303 2500