The Framework and the Challenges of an EU Law and Policy on Sport
The interpretative or adjudicative approach to securing sporting autonomy was placed in context in Chapter 2. It is based on the claim that sport is ‘special’ and that accordingly this should condition the interpretation and application of legal rules. No doubt sport is to some extent special, and no court goes so far as to dismiss out of hand such pleas as a matter of principle. From the perspective of sporting bodies the complaint is typically that those adjudicating such claims tend to be inadequately sensitive in practice, rather than utterly insensitive in principle, to the extent to which sport is different from normal industries. The intellectual challenge is to assess whether this allegation has foundation or whether instead it is based on an exaggerated depiction of the merits of the appeals to autonomy commonly made by sporting bodies. It is especially where there is a commercial advantage attached to attempts to escape the normal assumptions of legal regulation that one may sense a strategic rather than an intellectually pure appeal to be permitted sporting autonomy.
Such introductory remarks fit the challenge of sports law anywhere in the world, but the preoccupation of this book is with EU law. One can make sense of the opportunities available to those involved in sports governance to secure a favourable interpretation of EU law only by appreciating the background structure of EU law. In particular, the EU’s founding Treaties make meagre explicit provision for sport. The foundation stone of the EU’s constitutional order is the principle of conferral, which according to Article 5(2) of the Treaty on European Union (TEU) provides that ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’. The answer to the question ‘what may the EU do?’ is in principle always ‘the EU may do what its Treaties permit, no more and no less’. Article 165 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the Union ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport’ and that Union action shall be aimed at ‘developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen’. To contribute to the achievement of these objectives it is provided in Article 165(4) TFEU that the EU enjoys a legislative competence to adopt incentive measures, though this explicitly excludes any harmonization of the laws. This, then, is what the EU may do in the field of sport according to the explicit terms of its Treaties.
But this is very far from the full story. Article 165 is the starting point in understanding the competence conferred on the EU to act in the field of sport. But its text is both thin and vague and it is not apt to guide the resolution of particular disputes. In particular it is of little service in framing the application of EU free movement and competition law to sporting practices which collide with the underlying assumptions of the internal market. Those Treaty provisions on free movement and competition law offer no explicit mention of sport at all, but sport, like any other sector, is subject to the rules contained in those Treaty provisions in so far as it constitutes an economic activity, for the scope of the EU Treaty system itself is driven by the subjection of economic activity to the demands of the internal market. That project is the subject of the commitment made in Article 3(3) TEU that the Union ‘shall establish an internal market’ and that internal market is defined as ‘an area without frontiers in which the free movement of goods, persons, services and capital is ensured’ by Article 26 TFEU. Much activity in sport is organized on national lines: here immediately looms the thematic tension between sport and the EU’s internal market. And how to address that tension is left unaddressed by Article 165 TFEU in particular and by the EU Treaty structure more generally.
Moreover, even the slender and ill-defined competence conferred by Article 165 TFEU has been in existence only since December 2009. Article 165 is a creature of the reforms instituted by the amendments made to the EU Treaty system with effect from that date by the Lisbon Treaty. A great deal of evolutionary activity at the intersection of EU law and sport occurred prior to that date, at a time when the legally binding provisions of the EU Treaties had no explicit textual connection with sport at all. Sport was indeed not even mentioned in the text of the Treaties until 2009. As a result the ‘interpretative strategy’ for achieving sporting autonomy was deployed before EU institutions—most prominently the Court of Justice and the Commission—which had a great deal of scope and flexibility to make important interpretative choices without any direction supplied by the Treaty.
The purpose of this chapter is to map the landscape: to show how and why EU law lacks concrete rules dealing systematically with its impact on sport, and to show the background which explains the very limited success of governing bodies in sport in achieving a secure exclusion for their practices from EU law. What has instead developed is a space within which to discuss to what extent sport’s special characteristics should be integrated into the application of the legal rules. This, then, is the heart of the interpretative strategy for maximizing sporting autonomy.
This chapter, then, sets out the scope of EU competence applied to sport. The three chapters that follow deal with the detailed articulation of that competence. This covers, first, the application of the rules that govern the building of the internal market—principally free movement, examined in Chapter 4, and competition law, examined in Chapter 5. The issue is the prohibition of sporting practices found to contradict the aims of the EU. Then attention moves to action taken by the EU in the name of regulating and legislating— that is, promulgating positive law. This is discussed in Chapter 6.
Otherwise framed, this examines, first, in Chapters 4 and 5, the decision-making of the Court and the Commission when faced with the question of whether sporting practices are compatible with EU law. Then, second, in Chapter 6, analysis moves to the shaping of Article 165 TFEU, the Lisbon Treaty’s innovation, and the creation of opportunities to move beyond ad hoc adjudication in the shadow of free movement and competition law and instead to elaborate broader policy articulation by (most prominently) the Commission and, on a very limited scale, for the EU to adopt legislation setting ground rules for sporting practice in the EU. Chapter 7 then draws together the several strands and themes addressed in these chapters and presents a case for understanding EU sports law as an integrated and coherent system, giving shape to Article 165’s assertion that sport has a specific nature. Chapters 8 to 11 then deal with particular substantive topics—nationality rules, the transfer system, governance, and the sale of broadcasting rights.
Running through this inquiry is the quest for ‘principles’. How is EU sports law and policy framed by its shaping in the past in the shadow of the internal market and into the future by the directions mapped by Article 165 TFEU? What really is the ‘specific nature of sport’ to which Article 165 refers, and to what extent has this justified and does this justify sport’s treatment under EU law in a way which differs from its application to other less atypical—less ‘special’—areas of economic activity. This is addressed in the book’s concluding chapter, Chapter 12, which summarizes the animating themes and principles of EU sports law.