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How Has This Assessment of the Limits of Respect for the Lex Sportiva View Been Reached in EU Law?

In 2005 Sepp Blatter, President of Federation Internationale de Football Association (FIFA) at the time, wrote an article entitled ‘Greed threatens the Beautiful Game’, and in it he asked ‘is it really still “their” team when one club in England has a squad with 19 nationalities?^0 EU law’s answer is—yes. And EU law gets that answer not from the explicit terms of the Treaty, but from the view taken by its Court of the nature of the relationship between clubs, players, and fans. And that view is different from the view asserted by football’s governing bodies. The lex sportiva, which mandated a tie between the nationality of a club’s footballers and its team selection policies, had to be relaxed in application to nationals of EU Member States.

Who is right? It is, after all, a plausible starting-point that UEFA and FIFA have superior expertise in the matter of football governance than the constitutionally constrained Court in Luxembourg. However, I believe the Court is right. A club’s attachment to its locality is a distinctive feature of European sport. Whereas in North America it is well understood that a club is a franchise and can be and will be moved from one city to another and re-named should it prove commercially expedient so to do, in Europe this is culturally unacceptable. The Brooklyn Dodgers became the LA Dodgers in 1957. The Winnipeg Jets left Canada for the United States and became the Phoenix Coyotes in 1996 when the City of Winnipeg refused to provide funding that was demanded^1 But it would be unimaginable for Borussia Dortmund to become Borussia Berlin or for Real Sociedad to leave San Sebastian for, say, Alicante, still less for Doha. In fact, on one of the very few occasions on which a club in Europe was allowed to change its home because of the associated claimed commercial advantages—when Wimbledon, English FA Cup winners in 1988, were allowed to become Milton Keynes Dons as a result of a decision taken by the English FA in 2002—the new club, relocated 60 miles north of its traditional home, was rejected by fans of Wimbledon, who formed a new entity to sustain their club’s tradition, and the cuckoo club in Milton Keynes remains widely reviled among fans of other clubs—indeed it is commonly derided as ‘Franchise FC’.22 Even attempts to change a club’s name tend to be ferociously controversial, as illustrated by a concerted and successful campaign conducted by fans in 2014 and 2015 to prevent the English club Hull City’s owners restyling the club ‘Hull Tigers’.

But players are not part of this identified necessary connection. On this the Court in Bosman and, in even more fully reasoned terms, Advocate General Lenz [1] [2] [3]

seem convincing. Fans may typically identify with and particularly admire players who are local, but in general what really matters is not whether a player is from the locality, the region, the same country as the club or beyond. What really matters is whether the player contributes to the success of the team. And this is not a new phenomenon. The first great club side of English football was Preston North End, first ever Champions in 1889, and they were well known for importing talent from Scotland, where in the early days of the sport far more skilful footballers were bred.[4] [5]

So I contend that the Court understood the sporting context perfectly well when it refused to agree that nationality discrimination has any necessary place in club football. The key insight is that the very fact that such an inquiry falls to be conducted reveals much about the ambitious construction of European sports law in the absence of directly relevant material in the Treaties. In Bosman the Court refused to allow the lex sportiva to dictate the scope of nationality discrimination in football and required its elimination in club football practised within the EU. Sport enjoys conditional autonomy from EU law: here the conditions were not met. Today we would frame Bosman in the light of Meca-Medina and Article 165 TFEU, and, in line with the explanation provided in Chapter 7, we would find that nationality discrimination practised in club football is simply neither necessary for nor inherent in its organization—that it is not part of ‘the specific nature of sport’.24 But the key insight is that the Court simply refused to accept that sports governing bodies could rely on their supposedly superior expertise and their status as the game’s global regulator to exclude review in the name of EU law, and, in the conduct of that review, the Court was not persuaded by the case made in defence of nationality discrimination in club football. Perhaps the Court perceived this assertion of the virtue of the lex sportiva as a means to protect the existing commercial model; perhaps it reckoned this as no more than an unthinkingly stubborn defence of an anachronistic status quo. In any event, overall—and exceptionally in EU law—the case made to defend sporting autonomy was treated by the Court as simply not powerful enough.

  • [1] Financial Times (London, 12 October 2005) 19.
  • [2] The Phoenix Coyotes are now the Arizona Coyotes; the Jets came home to Winnipeg in 2011when the franchise was bought from the Atlanta Thrashers.
  • [3] Happily the successor Wimbledon club achieved promotion back to the Football League in2011; less happily MK Dons remain members of the Football League.
  • [4] In short, Scots were the first to build the game round passing the ball instead of kick-and-rush.Some might think the English have still not absorbed this lesson (and that the Scots have forgotten it).
  • [5] 24 And today we could rely on some empirical evidence that changes to the composition of clubsquads wrought by Bosman have not significantly altered fans’ sense of identification with their club:D Ranc, Foreign Players and Football Supporters: The Old Firm, Arsenal and Paris-St Germain (ManchesterUniversity Press 2012).
 
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