Editor's note: Ben Van Rompuy, Head of the ASSER International Sports Law Centre, was recently interviewed by LexisNexis UK for their in-house adviser service. With kind permission from LexisNexis we reproduce the interview on our blog in its entirety. 

How does competition law affect the sports sector?  

The application of EU competition law to the sports sector is a fairly recent and still unfolding development. It was only in the mid-1990s, due to the growing commercialization of professional sport, that there emerged a need to address competition issues in relation to, for instance, ticketing arrangements or the sale of media rights.  

Apart from the evident link between competition law and commercial activities related to sport, competition law also has a vital role to play in relation to the regulatory aspects of sport. Most markets for the organization of sports events are a textbook example of monopolistic markets. As a result, sports associations exercise pure monopsony power: athletes have no choice but to accept unilaterally imposed restrictions. Albeit limited to case-by-case inquiry, competition law is thus a meaningful instrument to curb the otherwise unfettered private regulatory power of sports associations. Unfortunately, it remains underutilized. Only a handful of international sports federations have truly experienced the “Bosman effect” and faced scrutiny of their regulatory activity under the EU antitrust rules.   

Have there been any important sports-related antitrust cases in recent years? 

Not at the EU level. Regarding commercial activities, the latest case dates from 2006, namely the Commission’s commitment decision on the joint selling of the Premier League media rights. And after some politically difficult uphill battles around the 2000s against FIFA and the International Automobile Federation the European Commission has been extremely reluctant to intervene in regulatory matters. Lasts year’s rejection of the complaint against UEFA’s Financial Fair Play Rules was the latest “achievement”. In the last few months, however, the Commission has received a number of new interesting complaints. 

Since the decentralization of EU antitrust enforcement in 2004, National Competition Authorities have addressed more than 40 decisions concerning the joint selling of sports media rights. For the most part, the remedy package designed by the Commission has been replicated, but there are some differences: the more widespread use of a “no single buyer” obligation and the acceptance of exclusive rights contracts exceeding three years. 

Regarding regulatory aspects, a string of recent national cases have challenged rules that disproportionally restrict athlete participation in events not organized and promoted by the official federation, notably in smaller sports such as motor sport, horseracing and bodybuilding (Ireland, Italy, Sweden). What characterizes these cases is that the remedial action was purely national in scope. In Germany, by contrast, two exploitative abuse cases are making their way up through the courts that have the potential of becoming important EU-wide precedents. Both are concerned with unfair trading conditions – a rarity these days: mandatory arbitration clauses (International Skating Union) and rules concerning the mandatory release of players to the national team without compensation (International Handball Federation).  

What other aspects of competition law are important in the sporting context? 

The State aid rules are the last unexplored frontier. For decades, national and regional public authorities have directly or indirectly financed sports organisations, sports infrastructure or individual clubs, but these measures have blissfully remained under the radar of EU State aid control. Yet in the last four years, the number of complaints against alleged unlawful State aid to professional sport, mostly football clubs, has been rising. Interestingly, citizens filed most of these complaints. 

With the enactment of the new Block Exemption Regulation and several formal decisions on for instance Belgian, French, German, and Swedish State aid for the construction and renovation of stadiums, the Commission has developed a coherent set of principles for infrastructure funding. The most complex cases are still pending. They concern land swaps/sale of State property (Spain, the Netherlands), tax advantages (Spain), and bank loans, guarantees or debt waivers (Spain, the Netherlands). The beneficiaries include top clubs like Real Madrid and Barcelona so the decisions are bound to attract huge media interest. 

Are there likely to be any developments in the future? 

Competition problems related to the sale of sports media rights will continue to arise at the national level. Public authorities will inevitably face stricter State aid control when supporting professional sports. State aid control could also be an effective instrument to put an end to the practice that selective tax exemptions for UEFA, FIFA, the IOC, etc. are a condition for applications to host international sporting events. 

The European Commission is currently examining a new complaint against FIFA’s ban on third-party ownership of players’ economic rights (TPO) in football and one concerning FIFA’s new regulations for player’s agents. These could result in high-profile cases. 

I do hope that the Commission will reclaim its responsibility for ensuring that rules and practices of international sports associations comply with EU competition law, particularly when athletes lodge complaints. National competition authorities lack the political power to confront international federations. And for most athletes, the possibility of private enforcement is not a real alternative given clauses barring access to national courts, the costs and the length of proceedings. For example, I am currently advising two Dutch Olympic speed skaters whose faith lies entirely in the hands of the Commission. They filed a complaint against the International Skating Union, who threatens them with a lifelong ban if they would participate in lucrative events outside the official calendar. The European Parliament has urged the Commission to open a formal investigation so we are optimistic that the Commission will take its responsibility and handle this case.  

What should lawyers in this field advise their clients? 

It is all about justifications. What you often see is that, in an attempt to shield certain practices from competition law scrutiny, much effort is put into arguments that, for example, sports associations or clubs are not “undertakings”. And only when these fail, recourse is made to underdeveloped arguments about the specificity of sport. Yet the true test lies here: are the restrictive effects reasonably necessary for the organization and proper conduct of sport? This obviously necessitates a good understanding of the sports sector and its internal dynamics. Even more so because competition authorities and courts typically give considerable deference to the legitimate role and expertise of sports associations in regulating their competitions.  

Given that most sports-related antitrust cases are now being addressed at the national level, there is a strong need to learn and draw from this decisional practice and case law. I am currently developing a database that reports and comments on all these cases, which should be a useful resource for those advising clients in the sports world.

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

 On March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event organized in the framework of a European research project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’. This project funded by the European Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports diplomacy and to provide evidence of instances where sport can help amplify EU diplomatic messages and forge better relations with third countries. In particular, Antoine Duval from the Asser Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the context of mega sporting events (MSE) both in Europe and abroad. To this end, he organized the two panels of the day focusing, on the one hand, on the ability of sport governing bodies (SGB) to leverage their diplomatic power to promote human rights, particularly in the context of MSEs and, on the other, on the EU’s role and capacity to strengthened human rights around MSEs. The following report summarizes the main points raised during the discussions.

2.     Context to the Event

Before diving into the panels, the scene was set by a few speakers who described the background and some of the main issues encircling the event. First, Antoine Duval (Asser Institute) kicked the day off by describing the general goal of the project and his role within it. Specifically, Duval strives to explore key questions such as: to what extent are SGB’s diplomatic actors and do they have human rights responsibilities? Also, what is the role of the EU’s sports diplomacy with regard to human rights at MSEs? Can it and should it get involved and if so, what could it do to be most effective?

Having laid the foundation of the event, Richard Parrish (Edge Hill University) described the background to the project ‘Promoting a Strategic Approach to EU Sports Diplomacy’. Parrish explained that while many countries have a clear sports diplomacy strategy, the EU has been rather ‘late’ to the party. He explained that there may be room for a soft power approach to EU sports diplomacy. The project aims to continue the political momentum gained from a 2016 report on EU sports diplomacy and has now held several events across Europe that analyze this subject from different lenses. Parrish concluded by explaining that the EU has started to be more conscious of this issue and has, for example, now included sport in its dialogue with China for the first time.

Simon Rofe (SOAS) then brought some introductory remarks to help frame the discussions that would follow. Rofe started by pointing out how human rights and diplomacy have not exactly gone hand in hand and that many diplomatic instruments are rather silent on human rights, which often has been intentional. Furthermore, there are also issues when trying to identify which and what form of human rights should be promoted, although the UN has played a leading role in this regard. There are also questions regarding what capacity for change there is within SGBs. Rofe also gave the example of how human rights have already been disseminated through sport, such as during apartheid in South Africa. Nevertheless, as SGBs gain greater roles in non-sport matters, their responsibility to respect and further human rights is significantly increased.

3.     The Panels

a.     Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights

Now that the stage was set, the first panel took the floor with Antoine Duval acting as chair. Claire Jenkin (University of Hertfordshire) was the first to speak and examined the concept of legacies, especially in terms of children and young people. In other words, how can SGBs help leave positive human rights legacies in the MSEs host nations? Jenkin took the example of the International Inspiration Programme from the London 2012 Olympics, which was the first ever international legacy initiative linked to the Olympics and ran from 2007-2014. Its goal was to reach out to young people and bring sport to the youth beyond the context of the Games. In the end, it helped influence 55 national policies, strategies and legislative amendments. Jenkin highlighted, once more, how defining which human rights values to promote can be challenging. There are also many in a position that can promote human rights through sport but are simply not aware of their position as a ‘sport diplomat’. Hence, creating awareness, defining the appropriate human rights perspective and ensuring that young voices are heard in this process are essential to developing the SGBs’ human rights diplomacies.

Next up was Florian Kirschner (World Players Association/UNI Global Union) who looked at how SGBs have exercised their human rights diplomatic role. Kirschner illustrated how sport has a fundamental role in our society and is naturally connected to several human rights. The sports movement also clings to principles such as fairness, solidarity, equality and inclusion. However, Kirschner argued, SGBs have not always upheld these principles and pointed to several examples, such as widespread corruption, the award of MSEs to countries with questionable human rights records, suppression of free speech and violations of worker’s rights. There have also been instances of ‘sportwashing’, where states use sport events to try to give the impression that they are compliant with human rights, while coming short of their obligations in practice. The World Players Association, NGOs and other trade unions have come together to push SGBs, under the UN framework, to take greater account of human rights. Kirschner closed with the case of Hakeem al-Araibi and highlighted how many actors, including FIFA, were able to use their influence to push for his release.

Lucy Amis (Unicef UK/Institute for Human Rights and Business) then explained to the participants the importance of transferring the policies SGBs have adopted in relation to human rights into actual practice. This means developing strategies that enforce the values SGBs claim to uphold. There are numerous cases where sport has not lived up to these values: including cases where migrant workers are exploited to build MSE sport facilities, cases of child labor, and various instances where fans chant homophobic and racist slurs. Amis highlighted that SGBs must be especially diligent in cases affecting children because they face the highest risk of exploitation. On the other hand, sports diplomacy has helped initiate positive changes in some countries. In Rwanda, sport was used to help rebuild its society amidst significant adversities. There have also been encouraging developments in Qatar. Despite many calls to cancel the World Cup, FIFA’s persistence to hold the World Cup there has helped bring an end to the kafala system. All in all, challenges do remain. For instance, many national SGBs are limited to a very small and amateur staff, which creates greater challenges in creating, implementing and enforcing human rights strategies.

Finally, Guido Battaglia (Centre for Sport and Human Rights) closed the panel and began by giving an overview of the Centre for Sport and Human Rights’ goals and work. Battaglia described how the Centre’s main priority is helping those who are most affected by sports - the athletes, workers, and fans, among others - based on international human rights standards. The Centre promotes and fosters human rights in sport by bringing a wide variety of actors together, including SGBs, local organizing committees, governments, sponsors, broadcasters, international organizations, civil society and trade unions. The aim is to help these groups share best practices, increase their capacities and improve accountability on human rights issues. Battaglia then shared examples of how the Centre has been active in the field. One of these cases concerned Semyon Simonov, a human rights activist in Russia, who had been arrested while interviewing workers building World Cup stadiums in Volgograd. During this time, the Centre held a conference during which Human Rights Watch directly requested FIFA to monitor the situation. This eventually prompted FIFA to attend one of Simonov’s court hearings, acting as a sort of diplomatic pressure and signaling the sports world was watching. Battaglia concluded that pushing human rights through sports diplomacy, while still in its infancy, is gaining momentum and that there is enormous potential to help unite society through sport.

b.     Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?

The second panel, chaired by Carmen Perez (Universidad Carlos III de Madrid), then directly confronted the central question of how the EU could develop a human rights-based sports diplomacy. Arnout Geeraert (Utrecht University) launched the panel with a purposively provocative statement that EU sports diplomacy is ridiculous and that fundamentally there should be a deepening rather than a widening of its action in this matter. Since the EU has limited resources to focus on its sports diplomacy, it should work to strengthen its current efforts. Generally, the EU promotes liberal norms such as liberty, anti-discrimination, democracy, human rights and good governance in its actions. In the sports sector, the EU has had the greatest success in steering SGBs through negative integration and soft power measures, and SGB usually comply because they seek to be on good terms with the EU. In the end, Geeraert contends that the EU’s sport diplomacy should be to place more pressure on SGBs through a variety of existing channels, including coordinating EU member state positions in international organizations like the Council of Europe, and forming alliances with non-member states. The EU could then push human rights through these various relationships, which would indirectly compel SGBs to respect human rights.

Agata Dziarnowska (European Commission) took a different view from Geeraert and argued that a widening of the EU’s sport diplomacy should also be a part of the EU’s strategy in this field. Fundamentally, Dziarnowska argued, soft power is the EU’s most effective tool, and when you add the fact that Article 165 TFEU gives the EU the ability to cooperate with third countries on issues related to sport, there is a clear path for the EU to act. When it does so, it should be promoting EU values, including those related to human rights. In this context, the EU has already begun to take action within this strategic framework. For example, promoting the aforementioned values will be part of the new Erasmus programme. Additionally, the Council relatively recently adopted Conclusions related to sports events to ‘enhance integrity, transparency and good governance in major sport events’. These Conclusions specifically addressed business and human rights principles and highlight the importance of the selection process. Dziarnowska closed by underlining that EU action will greatly rely on strong political support, particularly from the Member States.

Alexandre Mestre (Sport and Citizenship) built on Dziarnowska’s contention that there is indeed an avenue for the EU to intervene on human rights. Given the wording of Article 165 TFEU, there are a multitude of areas for EU action. Mestre explained that crucial issues such as fighting against human trafficking, doping, child labor, sexual abuse of athletes, excessive commercial/economic exploitation of athletes are matter that deserve the EU’s attention. Furthermore, recent cases, such as Caster Semenya’s dispute with World Athletics, has shown how the SGBs’ eligibility rules could be another area where the EU could add value, given its previous experience with eligibility. Moreover, the EU has tremendous experience dealing with cases of discrimination and could use this expertise as a basis to promote human rights issues. Like Geeraert, Mestre also sees the EU increasing its cooperation with other entities, such as with the Council of Europe, civil society and third countries hosting MSEs. Mestre, nevertheless, also envisages direct cooperation with SGBs as part of the EU’s sports diplomacy strategy.

Lastly, Christian Salm (European Parliamentary Research Service) gave a historical perspective on the EU’s sports diplomacy, emphasizing the European Parliament’s role. Salm described how the 1970s were truly pivotal in this story, especially since it was the ‘decade of breakthrough’ for human rights. There were two events that placed human rights as a top priority: the World Cup in Argentina in 1978 and the 1980 Moscow Olympics. Concerning the first, the European Parliament’s Political Affairs Committee decided to have a hearing concerning human rights to counter political propaganda from Argentina’s right-wing military regime. While the hearing was blocked by a vote, the socialist group decided to hold its own debate, which created a significant media interest. The hearing generated calls for the release of the opposition leader in Argentina and led to a wider debate concerning sport events, specifically with regards to boycotts. Salm then described how leading up to the 1980 Moscow Olympics the international situation following the Soviet invasion of Afghanistan and the wave of oppression on human rights activists stimulated majority support amongst the European Parliament to boycott the Olympics. While the European Parliament was in many ways limited, it understood its role as a guardian of human rights and was able to generate significant attention to these issues. More recently, in February 2014 the European Parliament also held a public hearing on migrant workers building stadiums. With this perspective, Salm explained, the European Parliament can definitely play a part in developing a human rights dimension to EU sports diplomacy.

4.     Conclusion

After each of the panels, participants were able to ask questions which stimulated many fruitful discussions, such as the importance of including human rights considerations in MSE bidding processes and defining an overall EU diplomatic strategy that would effectively use the EU’s leverage on these questions. On the latter issue, to prevent a fragmented diplomatic approach, the second panel concluded that coordination between all EU actors and informal policy making – such as raising awareness through public hearings and conferences – can help create a cohesive and effective EU sports diplomacy scheme. In any event, from all the discussions, it is evident that human rights will need to play a greater role in any EU sports diplomacy strategy given the inherent human rights concerns that MSEs carry.

On behalf of the organizers, we would like to thank all the speakers and participants for ensuring a remarkably productive and rich event in difficult times. We look forward to seeing you at the Institute again soon!