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The Court of Justice’s earliest case law touching sport, decisions dating from the 1970s, addressed questions of discrimination based on nationality in sporting competition. It ruled in favour of the permissibility of such practices in the selection of national representative teams, even though such discrimination would appear to offend against foundational values of EU law and would certainly not be tolerated in other ‘normal’ industries. Chapter 3 introduced and Chapter 4 examined the pioneering decision in Walrave and Koch v Union Cycliste Internationale2 The Court, asked for the first time to inquire into EU law’s application to sport, ruled that the prohibition against nationality-based discrimination ‘does not affect the composition of sport teams, in particular national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity’.2 It has already been explained in Chapters 3 and 4 that this [1] [2]

formula is tainted by its unconvincing assumption that selection for a national team is convincingly classified as a matter of ‘purely sporting interest’, because clearly such rules also have significant commercial implications associated with the value of exposure as an international footballer. Today, in the light of both the Court’s seminal ruling in Meca-Medina examined in Chapter 5[3] [4] [5] and the framing power of Article 165 TFEU examined in Chapter 7, one would sensibly withdraw from the claim that such rules are purely sporting in character and instead treat them as a necessary element in the structure of international representative competition, and therefore as a reflection of the specific nature of sport. That is, this should be treated as ‘sporting discrimination’ which defines the very nature of the activity and which, notwithstanding its economic effects, therefore escapes prohibition under EU law. But this is simply to structure the examination conducted in the name of EU law in a different way from that preferred in 1974: it would not affect the outcome of the subjection of such rules to EU law. Such rules are not unlawful. In Walrave and Koch the Court decided that nationality discrimination in international representative football is not called into question by EU law and two years later in 1976 the Court confirmed its approach with no elaboration in Dona v Manterod Nothing that has happened since has changed that finding. Germany’s victory in the 2014 football World Cup was not achieved in violation of EU law.

  • [1] Case 36/74 Walrave and Koch v Union Cycliste Internationale [1974] ECR 1405.
  • [2] ibid para 8.
  • [3] Case C-519/04 P Meca-Medina andMajcen v Commission [2006] ECR I-6991.
  • [4] Case 13/76 Dona v Mantero [1976] ECR 1333.
  • [5] Case C-415/93 Union royale belge des societes de football association ASBL v Jean-Marc Bosman[1995] ECR I-4921.
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