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Beyond Bosman

Bosman generated pioneering game-changing energy. In sharp contrast to Walrave and Koch, it did not sit in a glass case, intriguing in principle but unused in practice. Its value in litigation made it truly the ‘birth’ of European sports law.n5 And yet at an intellectual level Bosman remained at heart unsatisfying in its reasoning.

The Court in Bosman did not abandon its misguided and misleading understanding of exactly how and why it was open to football’s governing bodies to escape condemnation under EU law. Citing and repeating Dona and therefore by implication also the parallel reasoning in Walrave and Koch, the Court stated:

... the Treaty provisions concerning freedom of movement for persons do not prevent the adoption of rules or practices excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as, for example, matches between national teams from different countries.116

n5 S Van den Bogaert, ‘From Bosman to Bernard’ in J Anderson (ed), Leading Cases in Sports Law (TMC Asser 2013) 97. See also S Weatherill, ‘Bosman Changed Everything: The Rise of EC Sports Law’ and S Van den Bogaert, ‘Bosman: The Genesis of European Sports Law’ both in MP Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart 2010) ch XII.2 and ch XII.3, respectively.

116 Bosman (n 23) para 127.

It supplemented this with the proviso that that restriction on the scope of the provisions must remain limited to its proper objective, which provided the cue for its finding that no such concession should be admitted in the case of nationality discrimination in club football. But the Court’s formula remains intellectually fragile. The reasons may not be ‘of an economic nature’, but they plainly exert economic effects: and in consequence they cannot convincingly be described as ‘of sporting interest only’. Bosman shares with Walrave and Koch a readiness to integrate the notion that sport is special into the interpretation and application of EU internal market law but it also shares with it a fractured intellectual basis for articulating just why that is so.

After Bosman the Court was faced with a rising tide of litigation, but also with the need to craft a more intellectually satisfying pivot on which to rest the interaction between EU law and sporting autonomy, the lex sportiva.

The Court’s ruling in Deliege v Ligue de Judo was not associated with a sport that attracts high levels of income;[1] [2] it concerns judo. But it is significant for its analytical change of direction, and in that vein it represents an improvement. The case concerned the selection of individual judokas for international competition. An athlete could not simply enter. He or she had to be chosen by the national federation. A similar pattern operates in the Olympic Games and in many other events where individuals compete on their own behalf, but as a qualifying member of a national team. Plainly failure to secure selection would damage the athlete’s sporting profile. It would be economically damaging too, to the extent that a would- be participant could have expected commercial advantage from involvement. The system was attacked by a disgruntled judoka who had not been selected. Litigation alleging a violation of EU internal market law was commenced before the Belgian courts and was the subject of a preliminary reference to the Court of Justice in Luxembourg. The questions referred invited the Court to address both free movement and competition law, but, as in Bosman, the Court chose not to examine competition law at all. The Court confined its analysis to the Treaty provision dealing with the free movement of services, at the time Article 49 EC and today Article 56 TFEU, treating the matter as a potential restriction on the cross-border provision of services by the athlete.

The Court cited both Walrave and Koch and Bosman in repeating that ‘sport is subject to Community law only in so far as it constitutes an economic activity’.n8 It then accepted that the applicable selection rules had the effect of limiting the number of participants in a tournament. It then added the crucial remark that ‘such a limitation is inherent in the conduct of an international high-level sports event, which necessarily involves certain selection rules or criteria being adopted’.n9 This was enough for it to conclude that the rules did not in themselves constitute a restriction on the freedom to provide services prohibited by the Treaty.00

The Court therefore ignored the unreliable notion of the rule of purely sporting interest. It was wise to do so. Properly understood, the rule of which Deliege had fallen foul was of sporting interest but it was not of purely sporting interest. The Court in Deliege found a functionally similar but intellectually more satisfying route to protecting sporting autonomy from the incursion of EU law than that which it had pursued previously. What is ‘inherent’ in the conduct of a sports event escapes condemnation under EU law—not because it does not restrict the crossborder provision of services, still less because it is devoid of economic effects, but instead because the very nature of the event is based on it. It is a conditional autonomy—sports must demonstrate that the choices define the competition.

It is clearly of central importance for these purposes what truly is ‘inherent’, and who decides. But this is the route to protecting sporting autonomy within the framework of EU internal market law. Finding such rules to be inherent in the organization of the event (as in Deliege) is a more rational basis than claiming that such rules are purely sporting in character (as in Walrave and Koch). There is no virtue in denying the economic effects of (most) sporting rules, but the key point is that the presence of restrictive economic effects does not, without more, disable sporting bodies from demonstrating why their rules are necessary and therefore compatible with the demands of EU law. This is to express the centrally important notion that sport enjoys a conditional autonomy under EU law.

In this vein the Court added in Deliege that the delegation of the task of making selections to the national federations is the norm in sport and that such federations ‘normally have the necessary knowledge and experience’.01 As a general observation, assessment of relevant expertise dictates a preference for deferring to sports bodies, and this is here, in Deliege, judicially acknowledged. The Court added that ‘the selection rules at issue in the main proceedings apply both to competitions organised within the Community and to those taking place outside it and involve both nationals of Member States and those of non-member countries’.^ Sensitivity to the global reach of the lex sportiva was therefore part of the Court’s assessment, designed to avoid the interference that would have been caused by the inevitably fragmenting effect of EU law, had the selection rules been condemned in their application to EU nationals.

In sum, a detrimental effect felt by an individual athlete did not mean that sporting rules were incompatible with the Treaty. The Deliege judgment is respectful of sporting autonomy, but according to reasoning which treats EU law and ‘internal’ sports law (the lex sportiva) as potentially overlapping. Sport enjoys a conditional autonomy from EU free movement law. The condition is that it must show why its practices are necessary for the organization of the sport, even where they exert restrictive effects on cross-border economic activity. This also requires engagement with procedural aspects: selection procedures for judokas would not have been treated as compatible with EU law if arbitrary or intransparent.03 In this sense [3]

EU law pushes for good governance and fair administration in sporting practice, a matter addressed more fully in Chapter 10. This approach fits Article 165 TFEU’s embrace of ‘the specific nature of sport’, which is readily understood as an encapsulation of the Court’s attitude in free movement law that sport does not enjoy any general autonomy from EU law, but that it is entitled to express its special characteristics as a basis for contextual application of EU law to sport. This is the heart of the interpretative or adjudicative strategy. Since Bosman and Deliege, most of the activity at the intersection between EU law and sport has concerned competition law rather than free movement law, but here too the focus is on the interpretative strategy as the route for sporting bodies to press for their—conditional—autonomy. And in the development of competition law, to which attention turns in Chapter 5, the Court has developed further an approach which leaves behind the misplaced reliance on ‘purely sporting’ rules that tainted the first steps taken in Walrave and Koch and in Bosman, and which instead takes a more realistic approach to practices which are typically both sporting and economic in their effects and intent. The Court has never gone so far as to embrace openly a convergence of the interpretative approach connecting both free movement and competition law, but it will be suggested in the next chapter that this is possible and in Chapter 7.3 it will be argued that, especially in the light of Article 165 TFEU, this is the proper way to develop an integrated approach to the specific nature of sport recognized pursuant to EU law’s grant of conditional autonomy to sport.

  • [1] Cases C- 51 / 96 and C-191 / 97 Deliege v Ligue de Judo [2000] ECR I-2549.
  • [2] ibid para 41. 119 ibid para 64. 120 ibid para 64.
  • [3] ibid para 68. 122 ibid para 68. 123 cf eg Case C-219/07 Nationale Raad van Dierenkwekers en Liefhebbers [2008] ECR I-4475,especially paras 33—37.
 
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