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Club Relocation

Leagues are typically organized along national lines. Clubs typically belong to leagues in the territory in which they are located. The winner is the national champion. Football is the most obvious example: the League is normally organized by the national association of the relevant territory which in Europe is in turn a member of UEFA and of FIFA. There are a tiny number of anomalies, which are driven by historical twists. Berwick Rangers are based in England but play in the Scottish League. Berwick is a town close to the Scottish border and it is a great deal closer to the major population centres of Scotland than those of England: and the town itself has a disputed past from the days when contests between England and Scotland were not confined to the sports field. Cardiff City and Swansea City are Welsh clubs which play in the English League: here too the story is of the distant past and the particular nature of the relationship between England and Wales, a separate nation but, unlike Scotland, deprived of its distinct political (but not cultural) identity by English invasion in the fourteenth century. There are oddities elsewhere in Europe too, such as Monaco and Derry City.

The norm, however, is clear: German clubs play in the German League, Italian clubs play in the Italian League, and so on. But what if a club wanted to move from one League to another? An obvious incentive would arise if a club from a relatively small League wanted to move to a larger and more lucrative League. This has been mooted periodically in connection with the two dominant clubs in Scottish football, Rangers and Celtic, who would gain financially by a move to England. Another slightly different issue might arise if a club wanted not to move from one League to another, but rather to move to another territory while remaining a member of the League based in the territory it has left. The attraction would be the opportunity to exploit a bigger fanbase in the new location. This was aired as an option in connection with Wimbledon, which some twenty years ago raised

For this proposal advanced without the advantage of hindsight, see Weatherill (n 51) 67—72.

the possibility to move from London to Dublin while remaining members of the English League, although the plan never took real shape after it was made clear that (as a minimum) the consent of both national associations would be required. This was not forthcoming.[1] [2] [3] A move of this type has obvious echoes of the ‘franchise’ system common in North American sport.9°

For an intricate set of largely sporting reasons no such cross-frontier move has ever taken place. Nor has the matter been the subject of litigation. But would there be a right under EU law to move between leagues or between territories? At the level of detail there are obvious problems. A Scottish club prevented from moving to England—either because the English League refuses admission or because the Scottish League refuses permission, or both—is not impeded from moving between Member States, although, in the same way as Bosman impacted more deeply on the transfer rules than first appreciated^1 there might be a basis under EU competition law to attack even a practice apparently internal to a single Member State because of its implications for the wider competitive structure of the EU market.

The deeper question asks whether sport is special. A sausage-maker or a supplier of financial services could certainly rely on EU law to combat rules that deterred it from extending its commercial activities across borders within the EU or from changing the location of its corporate base. Sport, however, has a different governance structure: one based on the vitality of the national market—the national League.

It seems probable that protection of this governance model would survive review under EU law. It is in the nature of the organization of sport that Leagues are national, and it is therefore compatible with EU law to confine the choice of clubs as to which League they might wish to join. The ‘specific nature of sport’, heralded by Article 165 TFEU, captures this. It was reported in the Scottish press in 2013 that:

Rangers could sue the [English] Football Association and any other opposing football authorities in competition law for orders forcing their entry to the English football leagues ... It would be Bosman for the clubs.92

This is not convincing. In fact it is wildly optimistic. The report claims that ‘the English football authorities are cartels which abuse their dominant position on those markets in the UK by having rules which exclude professional clubs that do not play their home games in England or Wales’ which ‘is a hard core competition abuse, worse than price fixing .’. It might very well be a hard core violation of EU internal market law were it to involve collective action by private parties dedicated to territorial exclusion of new entrants into a market for, say, sausages, cars, or financial services. But sport is special. The most attractive Treaty-based argument in favour of a claim made by a club in the position of Rangers would be to supplement reliance on free movement and competition law with resort to the principle of ‘openness in sporting competitions’ recognized by Article 165(2) TFEU, but it seems highly unlikely that this carries sufficient force to prevail. National Leagues, composed of clubs located within the territory of the organizing association, are part of the game and may accordingly be maintained.[4]

In its Lille/Mouscron decision the Commission refused to proceed with a complaint about UEFA’s refusal to allow a Belgian club to play a home match in a stadium just across the border in France^[5] [6] The report is only brief, but declares that this ‘is a sports rule that does not fall within the scope of the Treaty’s competition rules’; and that ‘UEFA has exercised its legitimate right of self-regulation as a sports organisation in a manner which cannot be challenged by the Treaty’s competition rules’. The Commission noted that EU law does not ‘call into question the geographic organization of football in Europe along national lines’. One would today repackage this analysis in the light of Meca-Medina and Article 165 TFEU and, as articulated in Chapter 7, the scope of conditional autonomy properly allowed to sporting bodies under EU law depends on identifying what is truly necessary for the proper organization of sport according to its specific nature. In this vein, the protection of national league structures from attempts to promote the cross-border access of non-national clubs is a justified exercise of sporting autonomy within the lex sportiva.

  • [1] ‘Dons’ Dublin Move Blocked’ The Independent (London, 9 June 1998) 31.
  • [2] 9° And in fact Wimbledon ultimately were allowed to move within England, to Milton Keynes, in amanner that attracted opprobrium precisely because of the sense that the club had been allowed to actas a franchise rather than a club with local roots.
  • [3] Ch 9.7. 92 ‘Rangers have Route into English Football by Suing FA’ The Scotsman (Edinburgh, 26 January2013) accessed 29 November 2016.
  • [4] See also R Parrish and S Miettinen, The Sporting Exception in European Law (TMC Asser 2007) 209-11.
  • [5] IP/99/965, 9 December 1989; COMP/ IV/36.851 (unpublished).
  • [6] Available via accessed 29 November 2016. The Procedural Rules governing the CFCB, including the list of sanctions, are available at accessed 29 November 2016. Some national leagues havetheir own variants—see eg accessed 29 November 2016.
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