2005-10-01 / Sport: Report says EU should pull back from policy involvement; Europe Information ServiceIn the decade since the European Union's Court of Justice issued its Bosman ruling on football transfers, EU involvement in sport has become more complex, from doping rules to a reference in the EU Constitution. However, a report unveiled at the European Parliament in Strasbourg on September 28 has called on the EU to take a step back from sport. The report, initiated by Dutch Liberal MEP Toine Manders, says the main responsibility for running sport should lie with sports bodies themselves, and that the EU is not yet constitutionally competent to develop a sports policy.
The 97-page report on 'Professional Sport in the Internal Market' was drafted by the Asser Instituut in The Hague and Lancaster University in the United Kingdom. It focuses mainly on football but raises general principles of EU law such as media rights, licence systems, state aid, transfer arrangements and rules on merchandising. It warns that some, but not all, of the rules governing the world of sport may constitute a breach of EU rules on fair competition and non-discrimination.
The report looks at areas where the rules clash and notes that there have been some calls for sport to be exempt from EU law, while others have sought to use the EU to scrap market restrictions. "One's perspective depends on whether sport is defined in purely sporting terms or whether sport is considered an economic activity", it says.
The report says there is strong pressure for greater legal certainty to ensure similar cases are decided on a similar and not arbitrary basis by the EU, but it advises against such a move. It says sports bodies are best placed to run their own affairs, having acquired the necessary skills to regulate sport. It thus concludes that the EU "should confine its role to supervising the choices made by the sporting bodies to ensure they are consistent with EU law". However, the report does suggest the EU can offer legal certainty through one (or a combination) of the following policy options: case-by-case analysis; social dialogue, soft law; treaty revision; and block exemption.
The Bosman ruling issued by the European Court of Justice in December 1995 led to an upheaval in European club football, with foreign players flooding into domestic leagues. It said:
* the system whereby clubs could ask for a transfer fee from the sale of a player to another club once the player's contract expired was a breach of Article 48 of the Treaty of Rome,
* the UEFA rule preventing clubs from fielding more than three 'foreigners' (non-nationals of the club's home country) plus two 'assimilated' foreigners in European competitions was equally incompatible with the Treaty.
The report appeals to sport's special role: at one level it performs educational, public health, social, cultural and recreational functions; and at another, it is a big business capable of generating considerable revenues. Sport also operates under different market conditions to other industries with competitors - usually clubs - having a vested interest in the strength and survival of their rivals. "This uniqueness has contributed to the construction of an organisational model described as the 'European model of sport' endowed with a rule book designed to protect the 'specificity' of sport", it says. "Many of these rules would not be considered appropriate in 'normal' industries and would be subject to legal challenge because they inhibit the development of a level playing field either through restricting the free movement of workers or by placing undue market restrictions on the commercial freedom of undertakings."
This has, the report says, contributed to a growing number of sporting complaints being brought before the EU. The report lists three types of disputes with sporting bodies:
* rules or practices seen as essential for the proper functioning and organisation of sport, including nationality restrictions in national team sports, rules relating to selection criteria, sanctions for doping offences in sport, rules preventing club relocation, rules preventing multiple club ownership and the granting of educational state aid to sports clubs.
* rules or practices that are economic in nature, constitute restrictions and are thus subject to the EU Treaty's free movement and competition law provisions. A range of sporting rules have been deemed to be compatible with the Treaty including the use of transfer windows, the collective sale of broadcasting rights, collective purchasing agreements for broadcasting rights, restrictions on the cross-border broadcasting of sporting events, ticketing arrangements, in-contract transfer payments and rules regulating players' agents.
* rules or practices that do constitute restrictions and are banned by the EU Treaty's free movement and competition law provisions, including nationality restrictions in club sport, out-of-contract transfer payments, nationality rules in breach of non-discrimination provisions contained in Association Agreements, periods of long exclusivity for sports rights, export bans for sports goods and regulatory rules designed to maintain commercial dominance.
But there are still a number of unresolved issues that may require further adjudication by the EU. Many of these issues relate to UEFA's regulation of football: rules on home-grown players, player-release clauses and rules that seek to tie clubs to national territorial locations are questionable, the report says. Given the many clashes between UEFA and the European Commission over the years, the report calls on sports governing bodies to ensure their constitutions and procedures are transparent and allow for the democratic involvement of all stakeholders. "The issue at stake is not so much the creation of a perfectly level playing field for sport as this may not be appropriate in all cases", it says. "Rather the rules of sporting bodies that contradict the basic principles of EU law should be carefully scrutinised to see whether they are transparently and democratically agreed and truly necessary and proportionate for the achievement of the legitimate objectives they seek to pursue. Given the complexities of these arguments, these judgments can only be made on a case-by-case basis."
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