The application of national law and EU law to a sports governing body’s right of autonomy: how should its autonomy be conditioned accordingly? by Marco van der Harst LL.M.
A private law entity (e.g. Sports Governing Body (SGB)) established under national law that operates in an EU Member State is required to exercise its freedom of association (i.e. right of autonomy) with due regard to national and EU law.
The right of autonomy safeguards a SGB to be set up, to be organized according to its own opinions and needs (freedom of organization), to be maintained and/or to be terminated. It has therefore the right to set its own rules. A SGB is, however, only authorized to decide an agreement (i.e. freedom of contract) under national law and EU Law if it has a full legal competence pursuant to its byelaws. Moreover, enforcing those rules to a member is only possible after he/she/it has been contractually bound (e.g., membership contract, employment contract, license). Furthermore, a national court will use a test of reasonableness in order to assess the fairness of a SGB’s limitation of the economic freedom of a member. In other words, a SGB’s autonomy will/may be conditioned accordingly.
According to the European Court of Justice ‘[a] practice may be of a sporting nature - and perhaps even purely sporting’ in intent – but it falls to be tested against the demands of EU law where it exerts economic effects. In practice, it means that the main focus is on a possible breach of the competition rules by an undertaking, e.g., club, player (Case C-41/90), or on the measures taken by a regulator (e.g., SGB) that may illegally set restrictions to the fundamental freedoms. In other words, a SGB’s autonomy will/may be conditioned accordingly.
Marco’s Ph.D. examines to what extent the apparent lack of consistency between these different assessments (i.e. EU level and national level) gives a SGB the (golden) opportunity to excessively limit a member’s economic freedom.