The Specific Nature of Sport. An Integrated Account of the Law of Conditional Autonomy
The three previous chapters are linked by a common thread: EU law grants conditional autonomy to sport. Sporting bodies have room to protect and preserve their special concerns on condition that they demonstrate how and why EU law should be open to accommodation of such characteristics.
Chapter 4 explains how EU free movement law has been shaped by the Court of Justice, the first EU institution which was forced to grapple with the question of whether sport is special, to accommodate demonstrated organizational necessities in sporting competition. Chapter 5 tells a similar story in connection with competition law, where the demand for a case-by-case analysis, rather than blanket immunity, forms the essence of the legal control. Chapter 6 approaches the issue from the perspective of law and policy-making at EU level rather than the control of sporting practices pursuant to free movement and competition law, but it reveals a similar recognition of the specific nature of sport, albeit in a context which also assumes that the EU may play some role in shaping governance through the development of the European dimension in sporting and the promotion of fairness and openness. EU law does not intervene in sport unless, in short, it adds value: seen from the perspective of governing bodies, sporting autonomy is preserved provided it is exercised in a way that respects the conditions laid down by EU law.
The key structural point, then, is that there is negligible scope for arguing that sporting practices fall outside the scope of EU law, but rather ample scope for arguing that, once they are accepted as falling within that scope, sport may advance arguments associated with its specific nature in order to provoke a context-sensitive application of EU law. This is the adjudicative or interpretative strategy to securing sporting autonomy which was introduced in Chapter 2. It is the intellectual heart of EU sports law. The Amsterdam and Nice Declarations capture perfectly the political readiness of the Member States to embrace and express the distinctive qualities and particular virtues of sport, but not to go so far as to immunize sport from the reach of EU law. Article 165 of the Treaty on the Functioning of the European Union (TFEU) is no departure from this overall structural framework;
it is in fact a more elaborate version of that balanced approach. And the political negotiation that shaped it has conferred a legislative competence on the EU which is itself redolent of the notion of conditional autonomy. It does not at all elevate the EU to a position of top-down rule-maker. The EU’s role is supplementary only. To this extent sporting autonomy is respected. But not in absolute terms.
Therefore the negotiation and entry into force of Article 165 was important as a firm recognition by sporting bodies that a strategy of securing absolute autonomy was simply not obtainable, and it placed the fact of the EU’s engagement with sport on a secure constitutional footing. Henceforth it is inclusion not exclusion that dictates the lex sportiva s engagement with EU law. Indeed it is the failure of a strategy of exclusion before the Court and Commission that counts as a major reason explaining the retreat to a strategy of (conditional) inclusion within the Treaty superstructure.
However, the significance of Article 165 TFEU in practice should not be exaggerated. It is in substance continuation, not reformation. The purpose of this chapter is to show how the several strands of EU sports law which emerged before 2009 are readily understood as having informed the drafting of Article 165. It then adopts a more forward-1 ooking perspective to show how Article 165 provides a basis for an integrated, albeit modest, programme of EU sports law into the future. The aim is to show that Article 165’s insistence on respect for the specific nature of sport aligns with the model of conditional autonomy developed by the Court and the Commission and provides a basis for coexistence between EU law and the lex sportiva. It is a theme that will be re-addressed in Chapter 12, the book’s concluding chapter, after subsequent chapters which deal with concrete collisions between EU law and the lex sportiva in four distinct areas, namely nationality discrimination, the transfer system, governance, and the sale of broadcasting rights. The concern now is to draw together the themes of the previous three chapters to show the actual and potential pattern of an integrated sports law in the EU. In short, what are the conditions that attach to conditional autonomy?