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The Political and Policy Background

The EU has no authority under its Treaty to adopt legislation dictating how governing bodies in sport should act. Article 165 of the Treaty on the Functioning of the European Union (TFEU) limits the EU to the adoption of incentive measures and recommendations. This was examined in Chapter 6. The EU’s role in matters of governance is shaped by the broad functional reach of the relevant rules of EU internal market law—free movement and competition law, supplemented by the basic prohibition against nationality-based discrimination. These were examined in Chapters 4 and 5. So sports governance becomes a matter for examination in the light of EU law because its practices may collide with the basic economic project mapped by the Treaty. The key questions therefore focus on the consequences of that intersection.

By no means for the first time in this book it proves helpful to refer to the Nice Declaration of 2000.[1] [2] In it the European Council ‘stresses its support for the independence of sports organizations and their right to organise themselves through appropriate associative structures’ and adds that ‘it is the task of sporting organisations to organise and promote their particular sports, particularly as regards the specifically sporting rules applicable and the make-up of national teams, in the way which they think best reflects their objectives’^ Sports federations ‘have a central role in ensuring the essential solidarity between the various levels of sporting practice, from recreational to top-level sport, which co-exist there’, and, moreover, they pursue social functions such as ensuring access to sports for the public at large, promotion of equal access for men and women alike, youth training, health protection, and measures to combat doping, acts of violence, and racist or xenophobic occurrences which ‘entail special responsibilities for federations and provide the basis for the recognition of their competence in organising competitions’.[3] Federations provide a guarantee of sporting cohesion.[4]

The Nice Declaration is widely and correctly regarded as a document weak in bite but strong in vague aspiration, but its treatment of the role of federations contains within it the seeds of an intriguing challenge to the central role claimed by sports bodies in the governance of their sport. The autonomy envisaged by the Nice Declaration is conditional. So recognition that ‘it is the task of sporting organisations to organise and promote their particular sports’ is conditional on ‘due regard for national and Community legislation and on the basis of a democratic and transparent method of operation’.[5] Federations must continue to be the key feature of a form of organization providing a guarantee of sporting cohesion but also ‘participatory democracy’.[6]

The Nice Declaration makes certain assumptions about the standards of governance expected in sport as a matter of EU law. Those standards are not far removed from those that would be expected of public bodies.[7] It is easy to take this as a reflection of the power enjoyed by sporting federations, projected on a global level, but it does not fully coincide with governing bodies’ own self-perception and formal legal status as private bodies.

Clearly the Nice Declaration has no binding force. But its thematic reluctance to accede to an absolute notion of sporting autonomy in matters of governance is capable of being transplanted to the interpretation and application of EU internal market law.

The Commission’s 2007 White Paper on Sport tackles the matter with care and subtlety.11 its Section 4 is entitled ‘The Organisation of Sport’. This acknowledges the ‘diversity and complexities of European sport structures’ and so treats it as ‘unrealistic to try to define a unified model of organisation of sport in Europe’. This, as discussed in Chapter 6.5, amounts to a welcome retreat from the insensitive ambition of the 1999 Helsinki Report to promote a ‘European Sport Model’. In the 2007 White Paper the Commission ‘acknowledges the autonomy of sporting organisations and representative structures (such as leagues)’ and it ‘recognises that governance is mainly the responsibility of sports governing bodies and, to some extent, the Member States and social partners’^2 However, in line with the Nice Declaration, the explanation does not stop here. An EU gloss is added to the discourse of autonomy. Self-regulation shall be ‘respectful of good governance principles’ and must respect EU law. The Commission puts itself forward as able to ‘play a role in encouraging the sharing of best practice in sport governance’ and to ‘help to develop a common set of principles for good governance in sport, such as transparency, democracy, accountability and representation of stakeholders (associations, federations, players, clubs, leagues, supporters, etc.)’. It adds: ‘Attention should also be paid to the representation of women in management and leadership positions.’[8] [9] [10]

The Commission Communication of January 2011, ‘Developing the European Dimension in Sport’, is initially less assertive.w It begins by declaring that the Commission ‘respects the autonomy of sport governing structures as a fundamental principle relating to the organisation of sport’.i5 But in its later stages it joins the thematic insistence that the EU shall pay attention to the quality of governance. It offers an explicit embrace of the notion that EU law grants conditional autonomy to sport: ‘Good governance in sport is a condition for the autonomy and self-regulation of sport organisations.’!6 The Commission agrees there is no single model of governance in European sport, but it proclaims ‘inter-linked principles that underpin sport governance at European level, such as autonomy within the limits of the law, democracy, transparency and accountability in decision-making, and inclusiveness in the representation of interested stakeholders’.!7 And so, to repeat, ‘Good governance in sport is a condition for addressing challenges regarding sport and the EU legal framework’.!8

Article 165 TFEU, as a binding Treaty provision, is constitutionally more sturdy than the Nice Declaration, the White Paper, and the 2011 Communication but it is also less concrete. The ‘specific nature of sport’ embraced by Article 165 is a concept that is apt to capture the peculiar governance arrangements that one commonly finds in sport. But it offers no operationally useful direction on just when the claim to autonomy is durable and should be respected. In line with the findings made elsewhere in this book, the point is that Article 165 provides a basis for exploration of the proper scope of the claim that ‘sport is special’, but it does not itself offer any answers. However, Article 165’s direction that Union action be aimed at ‘promoting fairness and openness in sporting competitions’ might be taken as a basis for supervising the autonomy of sports bodies, in particular by challenging the arbitrary or self-serving exercise of power. This, as is examined in this chapter, is in fact the most striking feature of the cases involving reliance on EU law to intervene in the governance of sports.

  • [1] See Ch 6.3. The full text of the Nice Declaration on Sport is at accessed 29 November 2016.
  • [2] ibid para 7.
  • [3] ibid paras 8 and 9. 7 ibid para 10. 8 ibid para 7. 9 ibid para 10.
  • [4] 10 See Ch 2.2.5.
  • [5] 11 White Paper on Sport, COM (2007) 391, 11 July 2007, available via
  • [6] index_en.htm> accessed 29 November 2016. See Ch 6.5.
  • [7] 12 ibid 13.
  • [8] ibid 12 and 13.
  • [9] ‘Developing the European Dimension in Sport’ COM (2011) 12, 18 January 2011, available via accessed 29 November 2016. See Ch 6.11.
  • [10] ibid para 1.2. i*5 ibid 10. 17 ibid 10. 18 ibid 10.
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