The Court, abandoning in practice the notion of the rule of ‘purely sporting’ interest, has taken a broad view of the scope of EU law—but having brought sporting rules within the scope of the Treaty it shows itself readily prepared to draw on the importance of matters not explicitly described as ‘justifications’ in the Treaty in order to permit the continued application of challenged practices which are shown to be necessary to achieve legitimate sporting objectives and/or inherent in the organization of sport. That, then, becomes the core of the argument when EU law overlaps with sports governance, the lex sportiva: can a sport show why prejudicial economic effects (for some athletes) must be tolerated? This is a statement of the conditional autonomy of sports federations under EU law which has been the thematic core of this chapter and the two that preceded it. This is ‘the specific nature of sport’ asserted but not elaborated by Article 165 TFEU, which is examined more fully in the next two chapters. An overlap between EU law and ‘internal’ sports law is recognized, but within that area of overlap sporting bodies have room to show how and why the rules are necessary to accommodate their particular concerns. This line of reasoning does not make it simple in contested cases to discover which rules are necessary for the effective organization of sport. And attention must be paid to how much room should be allowed to sports bodies in defining what is truly necessary for or inherent in their sport. But as a minimum this line of analysis ensures the right questions are asked. It prevents intellectually wasteful arguments about what is ‘sporting’ and what is ‘commercial’, and instead embraces the overlap of the two spheres. Then, within that zone of overlap, there is room for serious discussion of what is necessary for and/or inherent in the structure of sports governance. This then conditions the interpretation and application of EU law.
This forms the core of EU sports law in its negative dimension—it expresses the conditional autonomy that is thematically central to understanding the operation of EU sports law. And a strategy of inclusion, not exclusion, should inform sporting bodies’ dealings with the EU’s institutions: they must engage with the EU on its terms, but they can expect that those terms include sensitivity to the sports-specific context within which practices are reviewed. Exactly this theme is now engaged with once again in Chapter 6, in examination of the legislative—positive—dimension of EU sports law and policy.