European Sports Law is Incapable of Recognising the Specificities of Sport

The basis of whether European sports law is incapable of recognising the specificities of sport is the subject of debate in this essay. It will be structured as followed. Part one will provide a brief explanation of what the ‘specificities of sport’ is, whilst also examining why the business of sport is treated differently from ‘normal’ businesses. Part two will interrogate how the institutions of the European Union[1] have raised the status of sport, which has now culminated in sport being recognised in the new Treaty. Part three will study how the European Court of Justice[2] has gradually developed jurisprudence when applying EU law to sport, with regards to free movement and competition law. Finally, conclusions will be drawn from the analysis.

The ‘specificity of sport’ has been an indescribable concept since the ECJ in Don� v. Mantero,[3] referred to certain rules of ‘purely sporting interest only’.[4] This is because there is no clear uniformity of the words and it is a perception that has never been quite comprehensively defined. However, it can be understood to be the fundamental characteristics of sport, both as a social and economic activity, which can justify a tailored application of EU law and policies.[5] This was recognised in Union Royales Belge des Societes de Football ASBL v Jean-Marc Bosman[6] which acknowledged the ‘specificity of sport’ when it accepted that “the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results” was lawful.[7]

Nevertheless, it could be suggested that the term ‘specificity of sport’ has become so ambiguous and so subject to misunderstanding that it should be banned from further use. The reason being is that an appropriate definition could quite easily eliminate some aspects, and it would most likely not take into account the evolving nature of European sport and its specificity. Thus, it may perhaps be better to put a definition to one side.

It may first be pertinent to recall how sport cannot be immunised from the application of the basic rules of the EU Treaty,[8] especially since Walrave and Koch v UCI,[9] where the ECJ confirmed that ‘the practice of sport is subject to Community law only in so far as it constitutes an economic activity within Article 2 of the Treaty’.[10] Consequently, from Walrave, the Court was prepared to acknowledge that sport might be marked by particular characteristics that entitled it to different treatment that is distinct from the ‘normal’ activities within Community law. Thus, the argument is to what extent is sport able to work within the framework of EU law and carve out a niche for itself in regards to its special characteristics?

Many governing bodies and academics consider sport to be a ‘special’ case,[11] which should be exempt from any EU interference.[12] Thus, sporting bodies seek to maintain a pattern of self-regulation perceiving its special characteristics, as they believe the Brussels regulators are misunderstanding these characteristics.[13] As Marcel Benz, a legal adviser to UEFA smartly observes, “we have our rules and our traditions, so why should the EU interfere?[14]

Nevertheless, there appears to be no plausible explanation of why this should be allowed. Whilst it is inevitable that sport bodies’ possess knowledge and experience to manage themselves, it is difficult to understand why they should have autonomy. It could be argued that any such industry in the world would want to run their own affairs, so why should sport be any different? If the sporting sector gets its own rules, this would also appear to undermine the basic principles of EU law?

With regard to this, the ECJ commented in Bosman “natural sporting rules may be kept outside the scope of the Treaty, as sport possesses unusual characteristics that distinguish it from normal commercial sectors”.[15] From Bosman, the obvious reaction is that sport possesses a number of distinctive characteristics, which set it apart from normal industries. This assertion is compelling, for example, there can be no doubt that sporting organisations have the authority to set genuine rules for its organisation, and these rules circumvent control under EU law, which is unheard of in other industries.[16]

In another instance, mutual independence of participants is a feature that distinguishes sport from normal industries. Much of sport is based on teams competing in a league and mutual independence between competitors is a common feature of this. This is not usually a attribute commonly permitted in other industries.[17]

Additionally, sport is different with regards to competitiveness, as the objective of the host team is not to take the market share from the visiting team in order to affect the visiting team’s withdrawal from the market. Sports teams need credible rivals, so without competitive balance it would become predictable and unexciting. Clearly, this requires coordinated activity not usually seen elsewhere and needs to be handled differently.[18]

Another feature is that Bosman acknowledged the legitimate objective of the governing bodies of encouraging the recruitment and training of young players. [19] This was reiterated further in the Nice Declaration.[20] It must be stressed that the encouragement of young people could be classed as normal in any business activity, but the sports’ sector argues that because young talents need nurturing at a very young age to assist with development; it is thus, unique to them. [21] Although Weatherill (2007) believes this to be an overgenerous claim,[22] sports clubs evidently play a significant role within local communities that possess cultural, economical and socially effects, which are distinct from normal business practices. Due to this, governing bodies claim that the law should respect sporting autonomy.[23]

These examples explain why sport is said to have special characteristics distinct from other industries. Two of these examples were the view of the Court in Bosman. Since Bosman, the EU have begun to piece together what is at stake in the notion that EU law applies to sporting practices, but with due recognition of their peculiar characteristics. These include, preserving uncertainty of results, ensuring the integrity of competition in sport and preventing multiple ownership of clubs.[24] It is evident these restrictions would not be found in a normal industry.

In light of this, it will be pertinent to move on to part two of the study to examine how the EU

institutions have had an impact on the development of sport, which brings together the specificities of sport and Community law. During the time of Bosman, sport was being debated in a number of sports policy papers[25] concerning the desire to balance the economic regulation of sport with the promotion of social, cultural, educational and integrationist qualities. One of these papers, namely the ‘Pack Report’ claimed that the EU had neglected to find a balance and this was due to the lack of a Treaty reference.[26] Consequently, sport as a policy area has been developing at EU level over several years.

A non-binding Declaration was annexed in the Amsterdam Treaty, which called on the bodies of the EU to listen to sport associations when important questions affecting sport were at issue. This Declaration does not state that sporting bodies wanted exemption from EU law; they were just stressing the importance of a channel of communication between them.[27]

Shortly after Amsterdam, the Helsinki Report on Sport added further impetus for sport to be referred to in the Treaty, by suggesting a ‘new approach’ in a framework for applying EU law to sport. This approach involved preserving the traditional values of sport, whilst at the same time assimilating a changing economic and legal environment. [28]

However, the term ‘specificity of sport’ entered into practice and attained official recognition in the Nice Declaration. From Nice, the specific characteristics appear to have been consented autonomy as long as the governing bodies operate democratically and transparently.[29] This theme was also acknowledged in the Independent European Sports Review in 2006.[30]

In 2007, a White Paper on Sport was published to act as another communication with sports organisations. The White Paper concentrates on the societal role of sport, its economic dimension and its organisation in Europe. However, it also offers some guidance on the meaning of the ‘specificity of sport’, and it is evident it provides further clarity on the application of EU law to sport in this sector.[31]

The White Paper also recognises that sport has certain specific characteristics, which can be approached through ‘two prisms’.[32] Firstly, through the specificity of sporting activities and sporting rules,[33] and secondly, through the specificity of the sport structure.[34] An issue with the White Paper is that the Commission could be suggesting to the EU that they are deficient in regulating sport by stating how the EU should apply the issues. However, it has been 15 years since Bosman and developments have taken place at a startling rate. Thus, if these concerns raised by the White Paper are capable of being legitimate objectives, then there does not appear to be any reason why they cannot be adopted within the framework of the EU.

A new Article on sport has been included in the Lisbon Treaty, which allows EU action to ‘develop the EU dimension in sport’.[35] It has been suggested that this will now bring certainty to the exact meaning behind the ‘specificity of sport’, as the ‘specific nature of sport’ is mentioned at long last. Thus, sport will be viewed from not only an economic standpoint, but also for its social and educational roles. More importantly this legal certainty will also bring about concrete decisions on purely sporting interest, which should put to end inconsistent rulings.[36] You could argue this is a step in the right direction.

However, there is an issue with whether Article 6 of the TFEU allows for different interpretations as to sports special nature.[37] Accordingly, is the Treaty truly respecting the ‘specificity of sport’ or are the EU allowing institutions to regulate sport ‘through the back-door’. The issue being that EU institutions are now allowed to support sports specific nature. This could inevitably lead to more regulation than it makes out, which would undermine the autonomy of sports governing bodies and the specificities of sport once again.[38]

Despite the advancements, prior to Lisbon, there was still a lack of ‘Treaty-based’ competence in the field of sport. Thus, it will be relevant to move on to part three of the study to examine how the ECJ have gradually developed jurisprudence when applying EU law to sport, with regards to free movement and competition law.

The ECJ have always insisted that sport is an ‘economic activity’;[39] however, it is evident to say that it is not an ‘economic activity’ like others. The EU has, therefore, needed to develop their approach to the special characteristic of sport, and they have achieved this through case law. Bosman being the launch pad for the Courts to grapple with the peculiar characteristics of sport.

Bosman argued that the transfer system and restrictions on foreign players were void and in direct conflict with Article 45 TFEU. AG Lenz upheld Bosman’s assertion, as he believed the rules on the transfer system and nationality restrictions went beyond what is necessary for achieving the aim pursued. However, Bosman acknowledged the ‘specificity of sport’ to a certain degree by stating the need to maintain competitive balance and encourage the education and training of young players in sport. Thus, the Court will accept proportionate rules of sports bodies, which restrict an athlete’s freedom of movement, as legitimate.[40]

What can be submitted from Bosman is that the EU was now not just concerned with the economic aspects of sport but also the regulation side of sport as well. In fact, one of the consequences of Bosman was that the European Commission was adamant Bosman clearly applies to similar cases in other sports.[41]

In another instance relating to free movement, the ECJ in Lehtonen and Castors Braine[42] stated that although transfer windows constituted an obstacle to the free movement of workers, they acknowledged the setting of deadlines for transfers may meet the objective of “ensuring the regularity of sporting competitions”, and thus; they can be justified on “non-economic grounds concerning only sport as such”.[43] Consequently, an objective justification provides an opportunity for the ‘specificity of sport’ arguments to be expressed.

Professional football teams in the UK also restrict the ability of players to seek alternative employment.[44] In any other society an employee cannot be prevented from changing jobs at any time, so why should sport be any different? Nevertheless, the AG in Lehtonen stated, “a transfer period is characteristic of organized competitive sports and is ‘inherent’ to the sports organization and thereby, in principle, immune from competition law”.[45] In general, the Courts will appear to give a sporting exception if the rule can be justified, functional, necessary and proportional. The cases of Deutscher Handballbund eV v Kolpak[46] and Simutenkov v Ministerio de Educacion y Cultura[47] again saw the ECJ employ the objective justification formula as well as further widening the impact of earlier case law.[48]

Although escaping the scope of this study, Deli�ge v Ligue Francophone de Judo et Disciplines Associees ASBL,[49] called upon the ECJ to consider whether not selecting Deliege to represent her country, violated EU legal rights.[50] However, the Court held “that selection rules of this nature were inherent in the organisation of sports competition”.[51] This confirms that sports bodies have a degree of discretion on the basis that they have the relevant knowledge and experience to do the job best. [52]

Another aspect of EU law that has had an impact on the special nature of sport is the competition rules contained in Articles 101 and 102 TFEU. In David Meca-Medina and Igor Majcen v Commission,[53] however, the ECJ detached the economic and sporting aspects rule when it observed that anti-doping provisions concerned the ethical aspects of sport and were not subject to the provisions of EU law, even if they had some other economic consequence.[54]

Accordingly, in his judgement the AG stated, “the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty”.[55] This broad interpretation, therefore, raised the questions of when then does a sporting activity fall within the scope of the Treaty and what are the conditions for engaging in an activity within the scope of the Treaty?

Nevertheless, it could be argued that the Court in Meca-Medina has taken the ‘specificity of sport’ into account and assessed the case on its own merits, according to its own particular features and characteristics.[56] However, as a result, this has led to the demise of the rule of ‘purely sporting interest’ as seen in Walrave.[57] In doing so, the Court has moved in the opposite direction in such a way that is likely to increase the scope for legal uncertainty and almost inevitably induce an even greater number of EU-based legal challenges to rules and practices in the sporting world.[58] As Infantino (2006) notes, “this opens the ‘Pandora’s box’ of what constitutes a condition for engaging in sporting activity”.[59]

To conclude, part one gave a brief definition of what the ‘specificities of sport’ is. However, it was suggested that the perception has never been comprehensively defined, and thus, it is a description probably best left alone as it could create more issues. Additionally, it was examined why sport bodies believe they are different to other industries. Here, various compelling reasons were given for why sport possesses a number of unusual characteristics, and therefore, should be self-regulated.

Part two examined how the institutions of the EU have raised the status of sport through Declarations and Reports, which have brought together the ‘specificities of sport’ and Community law. These Declarations and Reports appear to have added pressure on the EU, which has culminated in sport being given its own Article in the Lisbon Treaty. However, the new Treaty Article appears to have left the door open for more debates concerning the ‘specificity of sport’.

Part three observed how the ECJ has gradually developed jurisprudence when applying EU law to sport. It is evident, here, that some degree of ‘special treatment’ is enjoyed by sports’ governing and rule-making bodies when it comes to the implementation of EU law. Thus, you could suggest that there is some ‘sporting exception’ from the provisions of the Treaty for the rules made by sporting bodies. However, there are too many flawed decisions as seen in Meca-Medina.

It can be gleaned from the above analysis that sport possesses unusual features, which mark it out from ‘normal’ industry. Therefore, it could be argued there might be an intellectual case to be made that sport ought to run its own affairs. However, generally, any industry could claim these exceptions, so there appears to be no convincing reasons why sports federations should be exempted from the application of Community law. Accordingly, it can be said that sporting bodies believe the EU do not understand sport and sport should be exempt from any EU interference. However, at present the ECJ makes a decision on a case-by-case basis,[60] taking sports ‘special characteristics’ into account. Nevertheless, the decisions by the Court are fueled with inconsistencies and contradictions when handling cases. Thus, from the analysis, it must be accepted that the ECJ have recognised that sport is different, albeit on EU terms.Word count 2723