The Influence of EU Law on Sports Governance
The notion of ‘governance’ covers the whole range of practices conducted by sporting bodies in the name of the proper regulation of their sport. It is here that foundational claims to sporting autonomy are commonly made. Who, sports bodies typically argue, can know what is best for a particular sport other than those with the expertise and accumulated experience—that is, the governing bodies themselves? And that argument rooted in expertise is typically accompanied by one rooted in the need for geographical integrity. So it is claimed that decisions taken about the structure of sporting governance should not be questioned by local rules, for that would fragment the global scheme of organization to which most sports are wedded and which, they argue, is essential to ensure that the sport means the same thing whether it is played in Bolivia, Bulgaria, or Borneo.
As has been consistently observed in this book, EU law’s developed approach is to permit conditional, not absolute, autonomy to sports bodies. This applies also to matters of governance. Respect is paid to claims of this type made by sports bodies in favour of autonomy in choices about governance, but it is not absolute. Sport must demonstrate a sufficiently compelling reason for its choices when they collide with the expectations of EU law. The theme of this chapter will resemble that found in other chapters: EU law accepts that sport is entitled to claim it has special features, but sometimes it makes inflated claims.
Two questions put to the Commission by Members of the European Parliament and answered in March 2013 helpfully capture the tension and the subtlety. Pressed to respond to reports of on-field violence in a Spanish football match, Ms Vassiliou calmly drew attention to the EU’s limited competence in the field of sport and expressed the view that disciplinary measures should be applied, if at all, by the Spanish Football Federation and/or by other competent authorities in Spain. The autonomy of sports governance was plainly and sensibly respected. But when asked to reflect on a decision of the International Amateur Boxing association to require that materials used in events shall be approved by that body,
Mr Almunia was far less deferential to what one might have initially thought was a matter of internal governance.2 The appointment of suppliers, especially where this is on an exclusive basis, may have economic benefits that outweigh the restrictive effects, but the Commission’s orthodox approach in applying EU competition law has been to expect an open tender with selection on a transparent, open, and non-discriminatory basis, and with limited duration. Only in this way is anticompetitive market closure prevented. Mr Almunia advised that assessment of such stipulations by a governing body should proceed ‘on a case-by-case basis’ and ‘in the context of the concrete legal and economic circumstances’. This is fully in line with the Court’s landmark ruling in Meca-Medina andMajcen v Commission,  and it reveals once again a central theme of EU sports law—the inability to place large areas of activity automatically outside the reach of EU law. The autonomy of sports governance in the shadow of EU law depends on a case-by-case examination. It is an autonomy that is conditional on demonstration that there is an adequate reason for the choice of particular governance patterns in sport.