Study on the equal treatment of non-nationals in individual sports competitions
Non-discrimination is a general principle of EU law. One of the best known rules derived from this principle is the EU prohibition against nationality discrimination. The rule against discrimination on the basis of nationality is reflected in Treaty articles which prohibit nationality discrimination in all situations which fall within the scope of the EU Treaties. These rights are also granted to non-nationals who are protected by EU law. EU law currently grants freedom of movement rights of equal treatment to EU citizens but also to certain third country nationals such as non-EU family members of EU citizens and third country nationals who derive rights from international agreements between the EU and their non-EU member state. Equal treatment requires the abolition of both direct discrimination and rules which, whilst not framed in terms of nationality, in fact lead to unequal treatment.
Thus, nationality should not, as a matter of EU law, be a valid way to distinguish between domestic citizens and non-nationals. Yet sports within Europe generally remain organised on the basis of nationality. Under the ‘European model of sport’, national sports governing bodies are responsible for the organisation of sport within the national territory. As a consequence, sport is often inherently based on nationality. This creates tensions between the requirement to treat all EU citizens without regard to their nationality, and the pre-existing structures based on nationality and national territories by which many European sports are organised.
Even where rules are not expressly based on nationality, they may be prohibited under EU law. Restrictions to freedom of movement are considered discriminatory where nationals and non-nationals are governed by identical rules but where these indirectly favour nationals over non-nationals. For example, since residency requirements are more likely to be satisfied by nationals than by non-nationals, the Court has held that these are indirectly discriminatory, and therefore unlawful, unless justified and proportionate. Furthermore, EU law requires not only equal treatment of non-nationals but in fact prohibits all unjustified rules which hinder or render less attractive the exercise of free movement rights. Thus, when sports rules restrict the freedom of movement of non-nationals, they must be justified.
The Court of Justice of the European Union has in its case law sought to strike a balance between protecting EU citizens’ rights to free movement and non-discrimination, and the specific characteristics of sport and the autonomy of sports governing bodies to organise sporting competitions. It has accepted that nationality rules in national team sports are matters of ‘purely sporting interest’ which have ‘nothing to do with economic activity’ and are therefore outside the scope of EU law. It has in later cases considered that some rules are ‘inherent to the organisation and proper functioning of sport’ and therefore do not in law constitute restrictions of EU free movement rights even where the situation is otherwise within the scope of the EU treaty. Where the Court has found that a sporting practice has restricted freedom of movement rights, it has carefully considered the justifications put forward to examine whether such rules are both justified and proportionate. In so doing the Court of Justice has accepted a number of sports-specific justifications such as the need to educate and train young players and the need to ensure the regularity of competitions. It may even be argued that the Court might accept justifications for nationality rules in sport which would not be acceptable in the context of other activities, thereby recognising that the specific characteristics of sport require specific treatment within EU law.
Despite such guidance from the Court of Justice, it has maintained that neither sporting activities nor nationality discrimination in sport can be categorically excluded from the scope of EU law. Although the Lisbon Treaty has conferred a supporting, coordinating and supplementing competence to the EU in the field of sport, its references to “openness and fairness” as guiding principles suggest that no significant exemption will be forthcoming solely on the basis of Article 165 of the Treaty on the Functioning of the European Union. In its recent case law, the Court has confirmed that issues regarding the compatibility of sporting practices with EU law must be resolved on a case by case basis. Although sports governing may wish that the EU institutions should provide legally certain guidance as to whether various such practices are considered acceptable, it is difficult to extrapolate firm guidance applicable to all sporting practices from the body of cases which has thus far been decided. When guidance issued in the past has been contrary to EU law, the mere fact that it has been issued by an EU institution has not protected sporting practices from being declared unlawful by the Court of Justice of the European Union.
Although the full legal framework applicable to sport has not yet been definitively settled, a presumption now exists that the general EU law rules apply to sport just as to any other activity within the scope of EU law unless a limited exemption can be identified. Within the general framework, it is clear that non-nationals are entitled to equal treatment and that restrictions to their freedom of movement between Member States must be justified and proportionate. According to settled case law, free movement rights include rights to equal treatment and unrestricted access to leisure activities such as sport even where the sport is not organised on a professional basis. Since citizens and their family members enjoy equal treatment in Member States other than their state of origin, they also enjoy as a matter of EU law equal access to both amateur and professional sport regardless of whether the citizen is also enjoying rights as a worker or a provider of services. Thus, non-nationals protected by EU law have a legal right to access sport in Member States other than their state of nationality. Even if the Court’s exemption for nationality rules in national team sports were to be extended to individual sports by analogy, such rules would need to be carefully reasoned and limited to their proper function in order to escape censure. Other methods of analysis also require a proportionate justification in order to ensure that restrictions to non-nationals’ free movement rights escape censure under EU law.
This study examines restrictions to the access of non-nationals to individual sporting competitions in the EU Member States. Its national experts have compiled data on the rules in all Member States as regards twenty-six Olympic sports in which competitors are individuals rather than teams. These include the triathlon, modern pentathlon, tennis, table tennis, badminton, rowing, canoe/kayak, athletics, aquatics, archery, boxing, judo, shooting, weightlifting, wrestling, taekwondo, equestrian sports, gymnastics, skating, luge, biathlon, bobsleigh, cycling, skiing, fencing and sailing. The data includes both rules that distinguish on the basis of nationality and rules which, whilst based on criteria other than nationality, hinder or make less attractive the freedom of movement of non-nationals.
Any rules which hinder or make less attractive the exercise of non-nationals’ freedom of movement rights must be justified under EU law. This study therefore also seeks to comprehensively list the justifications put forward by sports governing bodies for those rules. However, although national experts have requested information on both the rules themselves and any justifications for those rules, relatively few justifications were put forward to explain restrictive sports rules. This raises the inference that the many substantially unjustified restrictions to the access of non-nationals to sporting competitions are unlawful under EU law. There are also instances of justifications which are difficult to accept in the context of the established legal framework and which therefore as a matter of law seem unlikely to survive a legal challenge. For example, it is not settled law that access to domestic competitions can be restricted on the basis of nationality solely because the competition is organised by the national governing body.
An examination of the rules of specific sports organisations by country also demonstrates that a single sport can be subject to very different rules across the EU Member States. This suggests that some national rules are more restrictive than necessary. In some cases, the difference arises because even some Olympic sports have no national governing bodies in certain Member States. Although this study was limited to the twenty-six identified individual Olympic sports, a further investigation beyond Olympic sports may reveal a significant additional number of these situations. In cases where sports did have domestic governing bodies in all EU Member States, the national rules governing access to sports were also not always uniform. Even where such sports had European-level governing bodies, their rules often left domestic governing bodies with significant margins of discretion regarding the access of non-nationals to domestic competitions. The diversity of rules regarding access may suggest that some of those rules are more restrictive than is necessary. For example, if one governing body does not require a long period of prior residence, it may be more difficult for another governing body within the same sport to demonstrate that its longer residence requirement is proportionate and thus acceptable under EU law.
After identifying the rules governing access of non-nationals to individual competitions in the selected sports, the study then maps rules and those justifications which have been offered against the general framework of EU free movement rules in an effort to determine whether the rules could, if challenged, be declared lawful by the Court of Justice of the European Union. Four categories of sporting rules emerge from this analysis. The first category of rules which do not fall within the scope of the Treaties and are thus not subject to EU law includes ‘purely sporting’ rules. The second category involves rules that do not in law constitute restrictions to free movement such as those rules which are ‘inherent to the organisation and proper functioning of sport’. The third category involves rules which, whilst constituting restrictions, may be justified and proportionate. Finally, the study observes that some rules cannot be considered justified or proportionate and would therefore be unlikely to survive a legal challenge in their current form.
‘Purely sporting’ rules are outside the scope of EU law. EU law does ‘not prevent the adoption of rules or of a practice excluding foreign players from participation in certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only’. However, such rules must be ‘limited to their proper objective’. It may be difficult to demonstrate that the exclusion of all non-nationals from all sporting competitions constitutes a ‘purely sporting’ rule. Furthermore, since the Court has clarified that ‘the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down’, the exclusion of a specific restriction does not imply the exclusion of all restrictions within that sport. The most likely candidates as ‘purely sporting’ rules may include rules regarding the distribution of national representative honours and nationality rules in national team sports. It may even be argued that the distribution of medals has so marginal an economic dimension that it could fall within this category of rules.
Some sporting rules do not in law constitute restrictions to freedom of movement. Since they are not restrictions, they may not always need detailed justification. Some rules have been considered inherent in the organisation and proper functioning of sport by the Court of Justice. These could include rules limiting the number of participants in a judo tournament. Other hindrances to free movement may be so ‘uncertain and indirect’ that they are not in law considered restrictions and therefore do not require justification. In some cases, the Court has distinguished between non-discriminatory rules which hinder access and must be justified, and non-discriminatory rules which affect issues other than access and which therefore do not require justification. Any rule which as a matter of EU law does not require justification is likely to offer a wide margin of appreciation to sports governing bodies.
However, rules which constitute restrictions to freedom of movement must be justified and proportionate. These include all rules restricting access to sporting competitions as well as any rules involving the unequal treatment of non-nationals. Several sport-specific justifications, such as the need to ensure the regularity of competitions and the need to educate and train young players, have in principle been accepted by the Court of Justice. However, it remains doubtful whether directly discriminatory rules can be justified other than by reference to Treaty grounds of public policy, public security and public health. In such cases, it may be difficult to find a justification which the Court will be prepared to accept. Furthermore, all restrictions must be proportionate: they must be suitable for achieving the lawful aims but also the least restrictive measures which will achieve those aims. Thus, rules established by national bodies which are more restrictive than the rules of other national bodies within the same sport may be difficult to justify since the existence of less restrictive measures in other domestic systems implies that less restrictive measures can achieve those aims.
The final category of rules identified by the study includes those restrictions which are not justified and proportionate and therefore breach EU law. Prominent past examples of these include the 3+2 rule, which restricted the access of non-nationals to professional football and was declared unlawful in the Bosman case. Even if the Court could be argued to offer a wide margin of appreciation to sporting rules in some cases, there is also a body of modern case law that demonstrates careful examination of the proportionality of such rules. The onus will be on governing bodies to demonstrate the justifications and proportionality of restrictions. In the absence such evidence, which in the context of this study was often not forthcoming despite direct requests addressed to sports governing bodies, restrictions on the access of non-nationals will be contrary to EU law.
It is clear that the principles of fairness and openness which are reinforced by Article 165 of the Lisbon Treaty have not yet been uniformly implemented by sports governing bodies within the European Union. There are many sports where the access of non-nationals is restricted by reference to nationality even in cases where no element of national representation can be identified. In some sports, access even at an amateur level is restricted by rules such as residence requirements that restrict the equal access of non-nationals. Organising bodies have not always clearly articulated the reasons for restricting the access of non-nationals, and where reasons have been articulated, they are not always in compliance with EU law. The diversity of practices also suggests that some practices within the same sport are more restrictive than others, and that the more restrictive practices may not be proportionate and are therefore not justified under EU law.
There are several ways to ensure the greater compliance of sporting rules with EU law. It may be that many sports bodies lack the expertise and specialist knowledge required in order to ensure that their practices comply with EU law and in particular that non-nationals are able to access sport where appropriate. In such cases, sports bodies, Member State administrations and non-nationals themselves would mutually benefit from the exchange of good practices and from training specifically targeted at ensuring awareness of and compliance with EU law. However, where national associations fail to make adjustments required by EU law and where Member States fail to protect the rights of non-nationals to access sports, it may be necessary for the Commission to consider more direct approaches such as infringement proceedings. Infringement proceedings and domestic legal challenges which result in preliminary references to the Court of Justice of the European Union would also offer opportunities to clarify the legal framework in those areas where sports governing bodies are legitimately concerned about a lack of legal certainty. Whilst the Court of Justice remains committed to a case-by-case analysis, a greater body of case law would provide a greater degree of certainty. in particular, where the Commission has already investigated practices and raised doubts about their restrictive effects, it may be necessary for the Court of Justice be given an opportunity to directly consider such issues. The resulting legal certainty will assist sports governing bodies to develop practices that both protect the specific features of sport whilst complying with the rights of non-nationals under EU law.