Caught Behind or Following-On? Cricket, the European Union and the ‘Bosman Effect’

Abstract

English County Cricket has struggled for a number of years with the problems posed by ‘foreign’ players. This issue has been magnified by the judgments of the European Court of Justice in the Bosman and, latterly, Kolpak cases. Many ‘foreign’ players now play first-class cricket in England unrestricted as a result in the regulations adopted by the England and Wales Cricket Board in the light of those judgments. This article contends that cricket may, in fact, be in a position to legitimately exclude such players within the limitations of European Community law. It is argued that the unique structure of professional cricket within the European Union and globally places it in a different legal position to that of more widespread sports, such as football. Similarly it is argued that the internal configuration of cricket means that the protection of development of domestic players as a means of supporting the international team is a legitimate one. This is not least because international cricket provides the bulk of the finance for cricket in England and without this the game at all levels would struggle to be viable. The article contends that the socio-cultural importance of cricket means that discrimination aimed at, and proportionate to, the protection of the international game ought to be considered as lawful. It further argues that such an approach is supported by the existence of other measures aimed at this objective, such as central contracts and the re-structuring of domestic competition. Finally, the article contends that such an approach may be perceived as being valid where it also strives to enhance the game of cricket at a European level.