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Conclusion—the limits of the legislative solution as a means to protect sporting autonomy

The legislative strategy for maximizing sporting autonomy works brilliantly well in the case of one-off, high-profile events. It is competition among hosts which is ideal for the elaboration and execution of this strategy. Extracting general exclusions from the law and/or special treatment for sport that is not limited in time or targeted on particular events is much harder to achieve. No state offers sport a general immunity from legal regulation. Occasional concessions or generous categorizations may be found. English law, for example, will not subject sports bodies to judicial review: they are treated as creatures of private law rather than public law.[1] Some jurisdictions in Europe offer special protection for organizers of sports events.[2] [3] [4] [5] Sport is sometimes able to extract special treatment under tax law by reliance on its socially useful functions.145 There is an echo of this in the treatment of sporting infrastructure projects under EU state aid law, where perceived social utility has promoted the Commission to draw on Article 165 TFEU to adopt a favourable view, on condition that certain key ingredients associated with the discharge of a state responsibility are presentTh6 Vertical solidarity has been pressed as a basis for generous treatment of the sale of rights to broadcast sporting events under competition law: see Chapter 11.7.

But these are specific instances: this is no general exemption from legal supervision. Plenty of states have sports-specific legislation and even in some instances provision for sport in their constitutions,^ but here too the issue is detailed distinctive treatment of sport, not general amnesty for sport from the law. Switzerland, admittedly, serves as a special case. It acts as host to a large number of sporting bodies, most of which choose the legal form of a not-for-profit organization. It has been argued that the consequent generous treatment under tax law is the principal reason for the attraction of Switzerland, although others factors too are in play, such as political stability and the country’s political neutrality, as well as the powerful inducement of the IOC, which has generated a clustering of governing bodies in Switzerland.[6] Immunity from anti-corruption laws is also a helpful inducement, although, as is revealed by recent events pertaining to FIFA mentioned earlier, there is no absolute immunity. Even in Switzerland, sport is far from wholly exempt from the application of the law.

So states do not grant sport any general legislative or constitutional immunity. Given the economic significance of sport, that would not be intellectually justified in principle: nor is sport strong enough politically to extract it in practice. And just as states do not grant sport general legislative or constitutional immunity, so too the EU, in the shaping of its founding documents which are the Treaties, does not permit any general immunity. Here too the economic significance of sport deprives any such request of intellectual plausibility: here too sport lacks the political muscle to seize autonomy in practice even though it lacks good arguments to extract it in principle. For all the spirited efforts made by sports bodies, the first references to sport attached to the EU’s founding Treaties were not apt to grant sport the prize of autonomy from the application of EU law. They were the Amsterdam and the Nice Declarations, which are examined in Chapter 6. They reflect in ambiguous fashion the general notion that sport may have special features, but they lack operational clarity. And the long struggle over the place of sport in the Treaty of Lisbon resulted not in exclusion but in inclusion—sport was finally recognized as an EU competence. This is Article 165 TFEU, the shaping of which is traced in Chapter 6. The aspiration to sporting autonomy was moved away from the fruitless quest to carve out an exclusion of sport from the control exercised by EU law to instead seeking legal provisions that would nudge towards the softened or sensitive application of EU law to sport, taking due account of its special status as an economic activity that is more than an economic activity. And it is precisely this that—generally, and not exclusively in relation to the EU—constitutes the third strategy of sports bodies seeking to protect their autonomy. This is to persuade courts that the special character of sport should be taken into account in the interpretation and application of ‘ordinary’ law. This, beyond the contractual and the legislative solutions, is the adjudicative or interpretative solution.

  • [1] R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 919; R (Mullins)v Appeal Board of the Jockey Club [2005] EWHC 2197.
  • [2] T Margoni, ‘The Protection of Sports Events in the EU: Property, Intellectual Property, UnfairCompetition and Special forms of Protection’ (2016) 47 International Review of Intellectual Propertyand Competition Law 386, especially 409—14.
  • [3] See R Siekmann and J Soek, ‘Models of Sport Governance within the European Union’ inJ Nafziger and S Ross (eds), Handbook on International Sports Law (Elgar 2011) ch 5.
  • [4] 146 eg Commission decision of 20 November 2013, Belgium—Football stadiums in Flanders, CaseSA.37109; Commission decision of 18 December 2013, France—EURO 2016, Case SA.35501. SeeB Garcia, A Vermeersch, and S Weatherill, ‘A New Horizon in EU Sports Law: The Application of theEU State Aid Rules Meets the Specific Nature of Sport’ (forthcoming).
  • [5] J Soek, ‘Sport in National Sports Acts and Constitutions: Definitions, Ratio Legis andObjectives’ (2006) 6(3^) Intl Sports LJ 28.
  • [6] See Dudognon (n 9) 50.
 
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