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The Helsinki Report

The rise of a political willingness at the time of Treaty revision to address, however ambiguously, the interaction of EU law and sport first at Amsterdam and then at Nice was mainly fuelled by the Court’s transformative ruling in Bosman in 1995. This ruling sharpened awareness of the practical significance of EU law as a means to challenge sporting autonomy after its twenty-year slumber following Walrave and Koch and Dona v Manterol The Commission too was awakened. It sought to provide some sort of guidance on policy.

Paragraph 1 of the Nice Declaration, quoted earlier, mentions the Helsinki Report. The Commission was constrained in its ambition by want of legislative competence conferred at the time by Treaties, but it was pushed in the direction of seeking to provide a framework for sports law by the rising tide of individual decisions of the Court and of the Commission. The constitutional landscape today is dominated by Article 165 TFEU and the practice of EU sports law and policy has grown much deeper over time, but these developments did not occur on a blank canvas and they need to be understood in the wider context of the Commission’s policy documents in order to grasp the mapping of EU sports law and policy.

In 1999 the Commission published its so-called Helsinki Report on Sportd8 In December 1998 the European Council meeting in Vienna had—expressing recognition of the social role of sport and acknowledging the Declaration attached to the Amsterdam Treaty—invited the Commission to submit a report to the European Council twelve months later. The Commission pursued consultation with actors such as the Olympic movement, sporting federations, media, governments, and

EU institutions, in particular at a ‘European Union Conference on Sport’, organized in May 1999, and it presented its report to the European Council meeting of December 1999. This was held in Helsinki—hence the Helsinki Report.

The brief handed to the Commission by the European Council in Vienna in 1998 was riddled with preconceptions. The invitation was to submit a report ‘with a view to safeguarding current sports structures and maintaining the social function of sport within the Community framework’.[1] The Commission was no less uncritical in the report which it produced. The Helsinki Report adopted precisely this language as its formal title—it was a report from the Commission to the European Council ‘with a view to safeguarding current sports structures and maintaining the social function of sport within the Community framework’. The Helsinki Report began with the ambitious assertion that it ‘gives pointers for reconciling the economic dimension of sport with its popular, educational, social and cultural dimensions’. Its Introduction stated:

This social function of sport, which is in the general interest, has for some years been affected by the emergence of new phenomena which sometimes call into question the ethics of sport and the principles on which it is organised, be they violence in the stadiums, the increase in doping practices or the search for quick profits to the detriment of a more balanced development of sport.

The first section following the Introduction is entitled ‘The Development of Sport in Europe risks weakening its educational and Social Function’. This has the feel of assertion rather than scientific inquiry. All of this is frankly tendentious.

There are two principal anxieties about this self-set agenda. The first is that it offers an inaccurate or, at least, narrowly selective and uncritically benign depiction of the role of sport in society. The second is that it raises expectations about the role of the Commission in particular and the EU more generally in nurturing these claimed virtues which cannot constitutionally be met and, arguably, given the EU’s limited expertise and its restricted geographical scope, should not be met.

To refer to sport’s ‘social function’ invites questions about whether one can plausibly identify such a coherent phenomenon, given that ‘sport’ embraces such a wide range of activities, from a recreational jog in the park to the glittering and commercially lucrative showcase of competing at the Olympic Games. This calls for caution when invited to construct a single ‘policy’ on sport. This was noted in Chapter 3.6. But the Helsinki Report falls headlong into this trap. The Helsinki Report expressed concern that commercial forces in sport are increasingly endangering the social function of sport, but this supposed conflict needs a more careful and context-sensitive explanation than that provided by the Commission. In truth, professional sport has much less to do with the social function of sport mentioned in the Helsinki Report than is there admitted. Conversely, recreational sport normally has no economic motivation. The ‘search for quick profits to the detriment of a more balanced development of sport’, which the Commission chooses to lament, is not a problem in a context which treats sport as a means to improve public health. It is not at all clear that what is at stake here is a tension within ‘sport’; it may more plausibly simply involve two quite distinct types of activity that happen to fall under the very loose and wide notion of ‘sport’. In short, the Helsinki Report does not do justice to the complex influence of sports in modern society.20

The second group of anxieties about the tone of the Helsinki Report are associated with competence as a matter of law. The Treaty at the time was barren of any reference to sport, and even today Article 165 TFEU is certainly not sturdy enough to support the type of broad-based intervention hinted at by the Helsinki Report. In addition, the Commission in particular and the EU in general lack the material resources and the necessary sports-specific expertise to address these issues with a high degree of persuasiveness. The risk is that the EU strains its own legitimacy by taking on tasks that it is ill-suited to discharge. It is certainly true that in the Helsinki Report the Commission astutely insists on consultation between interested levels of governance, encompassing most of all sports governing bodies, Member States, and European institutions. It claims to wish to progress in partnership. But there is a taint of over-ambition in sketching the EU’s ability to add value to the regulatory landscape in sport.

The most prominent instance of this—constitutional and substantive—overambition lies in the ‘European Sports Model’ sketched by the Commission in the Helsinki Report. This possesses a number of features, most prominently grouped around the contrasts drawn with North American sports practice. In important respects, professional sport in Europe is structured according to different expectations as compared with North American professional sportH In Europe, leagues are connected, top to bottom, by promotion and relegation on a season-by-season basis, whereas in North America, leagues are typically ‘closed’. There is no way in for a new club in North America—except by buying up a franchise, and moving the club from one city to another. This is anathema to the European sports fan—to call a club a ‘franchise’ is to insult it. North American sport is characterized by much heavier centralized control than the European model. The ‘draft pick’ and the salary cap reveal an intensely aggressive attachment to competitive balance and an assumption in North American sport that every team must be able to win (now and again). There can be no perennial also-ran.22 The majority of clubs in the major football Leagues of Europe—those of Spain, England, Germany, and Italy—have [2] [3] [4]

not the slightest expectation of competing to win the championship. They are fated to remain perennial also-rans—though it is enough to compete occasionally for qualification into European club competition, to win a Cup competition, or even simply to escape relegation to a lower Division. As a general observation the model found in North American professional sport involves a far higher degree of central coordination than is found in Europe, where by contrast one finds concern that the elite level should support the grass roots, rather than that competing clubs should be managed to ensure a high degree of equality of opportunity. North American closed Leagues offer ‘a regulated “quasi-socialist” economy’ in contrast to open Leagues in Europe, which are ‘almost completely deregulated’.[5] [6] It is right to be a little cautious about how profound this dichotomy really is, for European commitment to ‘vertical solidarity’ may be only skin-deep in modern, highly commercialized professional sportTh However, it remains a plausible starting point that engagement with vertical solidarity but negligible concern for promoting competitive equality through horizontal coordination between clubs serves to distinguish European sport from the model found in North America.

There is a fascinating field of inquiry in pursuing these comparisons and contrasts. The problem, however, is that although the European Model of Sport is a suggestive basis for describing the governance patterns found in Europe, the Commission in its Helsinki Report injects also a normative preference for the supposed virtues of the Model. And that is perilous, because it neglects the very real limits of the EU’s ability to permit the protection or promotion of the Model. The Helsinki Report’s assertion that it ‘gives pointers for reconciling the economic dimension of sport with its popular, educational, social and cultural dimensions’ should sound warning bells. The risk is that the Commission skates over the EU’s want of constitutional legitimacy, resources, and expertise.

The same unsettling sense of inflated self-perception is visible in individual decisions adopted by the Commission around the time of the Helsinki Report. In 2001 the Commission adopted a Decision concerning UEFA’s rules permitting national football associations to prohibit the broadcasting of football matches within their territory during a two-and-a-half-hour period corresponding to the normal time at which fixtures are scheduled in the relevant country. This restricts the commercial freedom of broadcasters to conclude deals to show matches at designated ‘blocked’ times, but it is typically presented as a means to sustain a lively atmosphere in stadia by encouraging spectators to attend matches ‘live’ rather than merely watch television coverage. The Commission, examining the matter as a potential anticompetitive practice, concluded that the rules fell beyond the scope of application of what was then Article 81 of the Treaty Establishing the European Community (EC), now Article 101 TFEU.25 The Decision is based on conventional market analysis of the type that would be regarded as routine by a competition lawyer: the Commission found in a straightforward manner that the UEFA rules did not appreciably restrict competition.'[7] [8] [9] There is nothing sports-specific about this: and in fact the Commission explicitly stated that, given this conclusion, it had no need to assess the extent to which the televising of football might exert a negative impact on attendance at matches.'7 However, by unfortunate contrast, in the Press Release concerning this matter Mr Monti, at the time the Commissioner responsible for competition policy, was quoted as observing that the decision ‘reflects the Commission’s respect of the specific characteristics of sport and of its cultural and social function’.'8 This is correct in the limited sense that the Decision shows how orthodox competition law analysis is capable of leaving undisturbed unusual practices preferred in sport, but it is misleading in so far as it suggests that sport’s special features played any role in the substantive analysis of the ‘blocking rules’ with EU law. Mr Monti’s exaggeration may be rooted in a strategy to claim credit for the Commission in the face of accusations that its application of EU internal market law is liable to upset the foundations of sport. But the Commission is storing up trouble for itself in making extravagant claims about its competence to cater for cultural and social matters which do not correspond to the reality of the EU Treaty’s much more limited mandate.

The Helsinki Report and the Commission’s decisional practice of the time is vulnerable to the accusation that they over-estimate the constitutional reach of EU law and that, in addition, they suggest that the EU has an expertise in making choices about preferred models of sports governance. The Helsinki Report was in its detail a mis-step, but the very fact of its publication in 1999 demonstrated a rising tide of sports-related material that pressed the EU in general and the Commission in particular to try to offer a clearer and more coherent account of the proper role of the EU. This was the momentum that eventually generated Article 165 TFEU. But the next milestone was the Commission White Paper on Sport published in 2007.

  • [1] Presidency Conclusions, para 95 accessed29 November 2016.
  • [2] See S Weatherill, ‘The Helsinki Report on Sport’ (2000) 25 EL Rev 282; S Weatherill, ‘Sportas Culture in European Community Law’ in R Craufurd Smith (ed), Culture in European Union Law(OUP 2004) ch 4.
  • [3] 21 cf S Weatherill, ‘Resisting the Pressures of Americanization: the Influence of EuropeanCommunity Law on the European Sport Model’ in S Greenfield and G Osborn (eds), Law and Sportin Contemporary Society (Frank Cass 2000) ch 9; L Halgreen, European Sports Law: a ComparativeAnalysis of the European and American Models of Sport (Forlaget Thomson 2004); J Nafziger, ‘Europeanand North American Models of Sports Organization’ in J Nafziger and S Ross (eds), Handbook onInternational Sports Law (Edward Elgar 2011) ch 4; N St Cyr Clarke, ‘The Beauty and the Beast: Tamingthe Ugly Side of the People’s Game’ (2010—11) 17 Col J Eur L 601.
  • [4] Not even the Chicago Cubs.
  • [5] W Andreff, ‘Some Comparative Economics of the Organisation of Sports: Competition andRegulation in North American vs European Professional Team Sports Leagues’ (2011) 8 EuropeanJournal of Comparative Economics 3. See also D McArdle, Dispute Resolution In Sport (Routledge2015) ch 5, ‘Antitrust and Competitive balance’; J Borland, ‘The Production of Professional TeamSports’ in W Andreff and S Szymanski, Handbook on the Economics of Sport (Edward Elgar 2006) ch 2.
  • [6] 24 Judged in absolute terms, the English Premier League shares more income with the rest of thegame than was the case prior to its creation in 1992, but the percentage shared is much smaller.Increasing the commercial vitality of the ‘product’ while reducing commitments to those outside thecharmed circle of the Premier League was a major motivation in the establishment of the PremierLeague. A comparable story attaches to UEFA’s Champions League.
  • [7] Comm Dec 2001/478 [2001] OJ L171/12.
  • [8] ibid paras 49—61. The Commission declared an intention to monitor change in market structure,particularly in the wake of what it called the ‘Internet revolution’, para 56.
  • [9] ibid para 59. '8 IP/01/583, 20 April 2001. '9 White Paper on Sport (n 5).
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