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Article 165 as a Means to Frame the Debate

The principal significance of Article 165 does not lie at the level of detail. Instead its primary significance is that the EU’s role in the field of sport is legitimated. Sporting bodies can no longer claim that sport is none of the EU’s business. Instead one would expect them to claim that it is the EU’s business but only to a very limited extent, and only in so far as respect is shown for its ‘specific nature’. This is an important change, constitutionally and strategically, even if it may not lead to any substantial differences in the control exercised by EU law over particular sporting practices. The theme here is consistent: sports bodies must engage with the EU as part of a strategy to minimize its perceived detrimental effect on their practice. They cannot simply ignore the EU but nor are they strong enough to extract a promise of immunity. So what is left is the ambiguous middle ground of conditional [1] [2]

autonomy, which is framed by the Lisbon Treaty’s inclusion of sport in the text of the Treaty but on terms which are far from clear.

This is in many ways the position that the more astute sports governing bodies had already reached before 2009, as a strategy of exclusion had been so consistently exposed as unsuccessful before the Court and the Commission. This had been incrementally and grudgingly replaced with the recognition of a need to get closer to and to try and influence the key EU institutions by adapting a strategy moving towards a more cooperative model with the EU, especially with the Commission. UEFA was a pioneer.85 This might be wise as a means to secure peaceful negotiation of potential flashpoints. The post-Bosman renegotiation of the transfer system, explained in Chapter 9, reveals a high level of cooperative engagement between UEFA, Federation Internationale de Football Association (FIFA), and the Commission. The story of ‘Financial Fair Play’ (FFP), met in Chapter 10.9, also fits this description. Adopting a more active approach, it may be that sports governing bodies will sometimes find themselves able to rely on EU law, and the Commission’s coercive powers, when they are themselves confronted by powerful antagonists. The potential application of EU law to restrain breakaway leagues is addressed in Chapter 10.11. The Lisbon Treaty’s ambiguities are capable of serving to push the EU and sporting organizations closer together as all those involved seek to make sense of the ‘principles’ contained in Article 165 TFEU. In this vein it is striking that UEFA went so far as to publish its own ‘Position paper’.s6 This states that Article 165 is ‘not intended to prejudice the legitimate autonomy and discretionary decision making power of sports federations’, and that it ‘requires that the specific nature of sport must be recognised’. This, in summary, means that:

... sport is not ‘above the law’, there is now a provision in the Treaty itself recognising that sport cannot simply be treated as another ‘business’, without reference to its specific characteristics (the ‘specificity of sport’).

This seems absolutely correct. It embraces conditional autonomy: a strategy of inclusion, not exclusion. Doubtless what is at stake in detail will require attention and debate over time. But UEFA concludes optimistically and constructively that:

Provided it is applied in a way that harmoniously reconciles the pursuit of these objectives and principles with the requirements of EU law, Article 165 of the TFEU could be beneficial for European sport.

In 2014 the Commission made a Decision adopting an arrangement for cooperation between itself and UEFA.87 This asserts ‘a common goal to promote and [3] [4] [5]

safeguard the values of fairness and openness in sport’. A commitment is made to respect all relevant rules, including competition law. The agreement makes much play of the virtuous aspects of sport: it refers to ‘contributions to education, social integration and public health’. It also mentions financial solidarity, and recommends redistribution mechanisms concerning audiovisual media revenues and training compensation fees. It also commits to promoting social dialogue in sport. Regular bilateral meetings are planned. There is nothing particularly surprising about the content of this agreement, which traverses in rather bland fashion most of the matters discussed in this book. The interest lies principally in its very existence. It demonstrates that dialogue is the envisaged way forward to manage the intersection of EU law and the lex sportiva.

In similar vein, the Olympic and Sports Movement adopted a ‘Common Position’ in January 20 1 0.[6] [7] Greeting the specific nature of sport as ‘a cornerstone of a new EU policy in the field of sport’, it urges the EU to ‘reaffirm its support for the independence and autonomy of sports federations and their right to determine autonomously their organisation and the promotion of their respective sport’. This was followed by the publication in 2011 of a Guide to EU Sport Policy by the EU Office of the European Olympic Committees, which considers that the notion of the specificity of sport ‘suffers from the lack of a complete and precise definition’ and urges that the Olympic movement ‘be a key player in defining which sporting rules shall be recognised as specific’^9 It makes the case for the autonomy of sports governing bodies but it does not deny the legitimate involvement in principle of the EU. Practical elaboration awaits. It is to some extent forthcoming in the recent Council Resolutions and Commission practice discussed earlier. But the difference in tone from the obstinacy surrounding Bosman and Meca-Medina is marked, and gratifyingly so.

  • [1] ‘Work Plan for Sport’ COM (2014) 22. 82 ibid 2. 83 ibid 9.
  • [2] 84 [2014] OJ C183/12.
  • [3] See in particular B Garcia’s pathbreaking article, ‘UEFA and the European Union: FromConfrontation to Co-operation’ (2007) 3 JCER 202; also B Garcia, ‘The New Governance ofFootball: What Role for the EU?’ in S Gardiner, R Parrish, and R Siekmann (eds), EU, Sport, Law andPolicy (TMC Asser 2009) ch 7.
  • [4] 86 ‘UEFA’s Position on Article 165 of the Lisbon Treaty’ (sic) accessed 29 November 2016.
  • [5] C(2014) 7378, 14 October 2014.
  • [6] ‘Common Position of the Olympic and Sports Movement on the implementation of the new Treatyon the Functioning of the European Union on sport’ (January 2010) accessed 29 November 2016.
  • [7] Guide to EU Sport Policy (2011) 11 accessed 29 November 2016.
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