Research Unit Sports Law And Policy In The Union - OAPEN

Introduction3are both able to pursue their respective policy interests in sport in a mannerwhich has the potential to undermine each others fundamental beliefs. Forexample, the ECJ’s ruling in Bosman undermined efforts to have sport classified as a social and not commercial pursuit. Given that the member statesare closely aligned to the socio-cultural coalition, the coalition possesses theability to amend the Treaty in order to grant sport an exemption from EUlaw. For the Single Market coalition, this would set a dangerous precedentand would undermine the legal foundations on which the EU is based. Incircumstances where both coalitions possess the ability to undermine eachother’s fundamental policy beliefs, a learning process within the subsystemtakes place. In order to protect their fundamental beliefs, coalitions are prepared to compromise within the secondary aspects of their belief systems.This learning inspired compromise is promoted by a culture of mutualadjustment within the EU.From within this mediation has emerged a more co-ordinated sportspolicy. The construction of the separate territories approach for dealing withlegal disputes involving sport is the defining characteristic of this policy.Separate territories refers to the definition of a territory for sporting autonomy and a territory for legal intervention. By reconciling these two tensions,the EU has facilitated an approach to sports policy which allows the EU’sregulatory and political policy interests in sport to co-exist. The futuredebate over the relationship between sport and the EU will focus on theboundary between the two territories. By developing a particular legalapproach to sport which treats sport differently to other sectors, the EU hasin effect established a discrete body of sports law in the EU. The field ishowever very new and the future definition of the territories is potentiallyconfused by many variables. Nevertheless, by following the methodologydeveloped in this text it is suggested that changes in the landscape of the separate territories and hence sports law and policy more generally, will be confined to measures that will not undermine the fundamental beliefs of the twocoalitions. Until such time as the institutional balance of power changeswithin the subsystem, change will be confined to the secondary aspects of therespective belief systems. As is explained later, this clearly has implicationsfor the future of EU sports law and policy.In writing this book I was mindful of Beloff et al.’s warning that ‘any bookon sports law carries with it the danger that it will contain little more thaninformation’ (Beloff et al. 1999: 15). I have kept the descriptive passages towhat I consider an appropriate and necessary level. In the absence of widespread academic attention on the development of EU sports law and policy,it is important to write a text which pulls together the mass of availableinformation. However, this is not a textbook. Information alone will notadvance our understanding of this relatively new field. The theoreticalframework alluded to above is my contribution to the next stage of thesports law debate. As an academic subject taught at growing number of

4Introductionuniversities, sports law needs theoretical underpinning. The search fortheory within sports law is a growing yet nascent field. Without it, this richarea of socio-legal study will become stunted.Whilst the text is designed to be as comprehensive as possible, it is naturally limited in its scope. In particular, I have chosen to separate the issue ofdoping from the wider sports law/sports policy debate. The future debate onthe relationship between sport and the EU will be dominated by the issuesof sports law and doping. The two domains naturally collide. For instancein August 2002 the Commission rejected a complaint against the International Olympic Committee by swimmers banned from competition fordrug offences.1 The Commission took the view that the rules on doping didnot fall within the scope of the EU’s competition rules. Whilst the analysiscontained within this text may have implications for the doping debate, I donot wish to claim doping as a central theme of this text.Notes1 IP/02/1211, ‘Commission Rejects Complaint Against International OlympicCommittee by Swimmers Banned from Competitions for Doping’, 09/08/02.

1The birth of EUsports law and policyDespite the absence of a Treaty base, the EU currently operates a sportspolicy. This policy is the product of activity within the EU’s sports policy subsystem, a subsystem formed in response to the infamous Bosman ruling.Prior to that the EU operated a highly polarised and fragmented sports policycharacterised by two conflicting policy approaches to sport. First, the EUtook a fleeting regulatory interest in sport. The ECJ and the CompetitionPolicy Directorate intervened in sport to correct free movement and competition restrictions and distortions within the Single Market. These interventions were not however informed by the EU’s other main policy strand andas a consequence EU sporting actions were not co-ordinated. The secondstrand of policy involvement in sport involved the EU pursuing a politicalinterest in sport. In particular, sport was identified as a tool through whichthe EU could strengthen its image in the minds of Europe’s citizens. As thetwo strands of policy involvement in sport did not relate to one another, apolicy tension characterised EU sports policy.Today, the regulatory and political policy strands of EU involvement insport relate to one another in a more co-ordinated manner. The constructionof the separate territories approach to sport has allowed both policy strandsto co-exist within the framework of a more co-ordinated sports policy. Thepractical effect of separate territories is a shift in the nature of EU regulatoryinvolvement in sport. Single Market regulation has become tempered bysocio-cultural regulation. In other words, the EU is moving from a marketmodel of regulation towards one in which the EU recognises the social andcultural characteristics of the sports sector within its regulatory approach.By establishing separate territories of sporting autonomy and judicial intervention, the EU has in effect established a distinct legal approach for dealingwith sports-related cases. The recent application of law to the sports sectoris deeply influenced by the political values embedded within sports policy.Accordingly, current legal interventions in sport balance the EU’s regulatoryand political policy interests in sport. The development of the separate territories therefore marks the birth of EU sports law.

6Sports law and policy in the European UnionEU sports law is therefore a product of the EU’s sports policy. The EUlacks the necessary Treaty base to develop a fully fledged common sportspolicy underpinned with primary and secondary legislative actions. Sportspolicy is therefore primarily regulatory in nature. It seeks to alter the valueswhich underpin the regulation of sport. In other words, sports policyattempts to balance the classic Single Market regulation of sport with a formof regulation which respects sports social and cultural nature. The clarification of the legal environment allows for the EU’s other political policy interests in sport to be pursued without being undermined by Single Marketregulatory actions. EU sports policy can then develop through sports integration into a number of socio-cultural policy subsystems such as education,youth and health.For those seeking to develop a socio-cultural sports policy, the involvement of law is viewed with unease. Sport is an essentially private pursuitwhich fulfils important social, cultural, educational and physical functionswithin society. Furthermore, sport and the law are often considered ‘separate realms’. In other words, the law operates in a manner totally incompatible with the operation of sport. ‘Legal norms are fixed rules which prescriberights and duties; relationships within the social world of sport are not seenin this way’ (Foster 1993: 106). However, sport has never claimed to operateabove the law. After all, sport could not operate without law. Rather, it hasdeveloped an internal legal structure of its own. On the one hand, this legalsystem specifies the rules of the game such as the offside law in football. Onthe other, it also concerns the organisation of the sport. ‘Organisational’laws regulate important issues such as access to the competition, the rightsof players and the exploitation of broadcasting rights.Throughout the 1990s sport developed into a significant industry in itsown right. The extent of this commercialisation contributed to the ‘juridification’ of sport, ‘where what are intrinsically social relationships betweenhumans within a social field become imbued with legal values and becomeunderstood as constituting a legal relationship – social norms become legalnorms’ (Gardiner et al. 1998: 66). Juridification therefore refers to theprocess through which the general laws of the land penetrate the internallaws of sport. The juridification of sport accelerated interest in the idea ofsport and the law as an area of legal study. Established general legal principles deriving from, for instance, criminal law, contract law, the law of torts,public law, administrative law, property law, competition law, EU law,company law, fiscal law and human rights law, have been applied to a widenumber of sporting contexts including: public order and sport, drugs andsport, safety in sport, disciplinary measures in sport, conduct in sport andwider issues relating to restraint of trade and anti-competitive behaviour insport.The extent of the relationship between sport and law has lead some academics to extend their legal analysis beyond the confines of sport and the law

The birth of EU sports law and policy7by identifying a distinct body of sports law (Gardiner et al. 1998, Beloff etal. 1999). As Beloff et al. claim, ‘the law is now beginning to treat sportingactivity, sporting bodies and the resolution of disputes in sport, differentlyfrom other activities or bodies. Discrete doctrines are gradually taking shapein the sporting field’ (Beloff et al. 1999: 3). In other sectors the weight of legislation and case law combined with the development of discrete doctrineshas led to the creation of other activity-led fields of law. As Gardiner et al.explain:labour or employment law is a subject area that has only achieved recent recognition. It has its origins in contract law in the employment context, but noone would doubt that with the plethora of legislation during the post-war eraregulating the workplace, it has become a subject area in its own right. Passingthrough various incarnations such as industrial law, it is now a mature legalsubject. (Gardiner et al. 1998: 73)The concept of sports law is not universally accepted. Grayson arguesthat:no subject exists which jurisprudentially can be called sports law. As a soundbite headline, shorthand description, it has no juridical foundation; forcommon law and equity create no concept of law exclusively relating to sport.Each area of law applicable to sport does not differ from how it is found in anyother social or jurisprudential category. (Grayson 1994: xxxvii)Critics of sports law argue that cases involving sport are grounded in thewell-established fields of law such as contract and tort. Indeed, ‘the traditionally minded, purist lawyer, may indeed distrust any activity-led “vertical” field of law, preferring the surer, traditional ground of rule-led“horizontal” law’ (Beloff et al. 1999: 3).In recent years, the sport and the law versus sports law debate has takenon a new dimension. Commercial pressures and the public’s desire to see topclass competition has fuelled the internationalisation of sport. To regulatethis cross-border activity, sports governing bodies have established rules governing relations between participants. The international and nongovernmental character of modern sport has not however ushered in forsport a new form of international autonomy insulated from law. The growthof the EU’s Single Market has been central to the internationalisation ofsports law. The re-regulation of sport has taken place within the context ofthe Treaty of Rome’s fundamental economic freedoms. As the EU is keen toensure these freedoms are protected, it has applied the Treaty’s free movement principles to a growing number of sports-related cases. The ECJ rulingsin Walrave, Donà, Heylens and Bosman illustrate the growing relationshipbetween sport and the EU. However, the relationship between sport and theEU has a relevance beyond the narrow confines of regulating economic activity within the Single Market. The EU has social and cultural aspirations andsport has been identified by the EU institutions as one of the tools through

8Sports law and policy in the European Unionwhich these goals can be achieved. Following Bosman, political argumentshave penetrated the world of sport and EU law. A new approach for dealingwith sports cases is emerging in which the EU is establishing the boundariesof judicial penetration in sport – in other words the birth of EU sports law.The construction of EU sports law allows the EU’s regulatory and politicalpolicy objectives for sport to co-exist within the context of an embryonic EUsports policy.The observation that a distinct body of law known as sports law is emerging in the EU requires both empirical and theoretical justification. One of theweaknesses of the sports law argument is the lack of theoretical underpinning. Although the literature on the emergence of sports law is descriptivelystrong, it remains unclear at what point the concept of sport and the lawloses its relevance and the distinct area of sports law emerges. Furthermore,beyond the assertion that commercialisation has driven juridification, littlehas emerged on the dynamics driving the birth of sports law. Although sportsinitial linkage to the EU’s legal framework was driven by legal/regulatorynorms, the emergence of a distinct field of sports law within a wider sportspolicy has been politically driven. Within the context of the EU, politicalscience and public policy therefore offer a fruitful venue for analysis. Lawshould not shy away from the insights offered by other disciplines. One ofthe most refreshing developments in both law and political science has beenthe interest shown in ‘judicial politics’. As Wincott argues, ‘somewhat belatedly the Court of Justice is now being subjected to sustained political analysis and taken into account in the general political science literature onEuropean integration’ (Wincott 1996:170).The birth of EU sports law and policy offers both political science and lawthe opportunity to further develop this research agenda. Although the politics of sport is a well-developed area of research, the politics of sports lawremains largely untouched by political science. As such, political science hasbeen slow in recognising the empirical and theoretical significance of thegrowth in the EU’s sporting activity. It has been law that has colonised thisnew research terrain. However, law has been equally slow in underpinningits work with theoretical strength, partly because of the practitioner-basedfocus.Single market sports regulation: sport and the law 1970–1995The EU’s first excursion into sporting issues occurred in the 1970s. Two ECJrulings established important principles governing the relationship betweensport and the EU. In Walrave (1974) and Donà (1976) the ECJ establishedthat sport is subject to EU law in so far as it constitutes an economic activity within the meaning of Article 2 of the EEC Treaty, although exemptionsfrom the principle of non-discrimination on the grounds of nationality arepermitted but linked with the practise of sport on a non-economic basis.1 A

The birth of EU sports law and policy9number of years later in Heylens, the ECJ addressed the issue of the recognition of qualifications for sports trainers.2 However, it was not until theseismic Bosman ruling of 1995 that the full implications of previous case lawbecame apparent.3 In the case, Jean Marc Bosman, a Belgian footballer, successfully challenged UEFA’s use of nationality restrictions and the international transfer system.Walrave, Donà, Heylens and Bosman are examples of cases where thesubject matter just so happened to be sport. The well-established principlesof the free movement of workers and the freedom to provide services simplybecame applied to sporting contexts. Although the ECJ did make referenceto the specific characteristics of sport, particularly in Bosman, the principleswere applied in a manner irrespective of the subject matter.The European Commission’s attitude towards discriminatory/restrictivepractises in sport in the aftermath of Walrave and Donà was somewhatcontradictory. Despite condemning restrictions on player mobility, theCommission’s negotiated settlement approach with the sports world initiallyresulted in sport and competition law operating in separate realms. TheCommission appeared keen to avoid confrontation with the sports world. Anumber of factors altered this position. The ruling in Bosman acted as animportant watershed. Even though in Bosman the ECJ did not address thequestion of competition law and sport, instead focusing on free movementprinciples, the Commission used the ruling to justify greater scrutiny ofsporting activity. Furthermore, competition law offered individual litigantsa more cost-effective venue for redress than the private enforcement routevia national courts and the ECJ. The Commission’s sports-related competition law caseload swelled considerably following Bosman. Finally, thechange in the economic status of sport undoubtedly contributed to juridification.The juridification and commercialisation of sport are parallel developments in Europe. The commercialisation of European sport is one of themajor reasons why a relationship between sport and the EU exists at all.Sport in Europe has traditionally operated in an environment dominated bypublic service television and in a context where the actions of governmentaland non-governmental organisations have co-existed. In organisational andcompetitive terms, European sport has been organised on a ‘pyramid’ structure. Organisationally, sports clubs support a structure comprising regionalfederations, national federations and European federations. Competitively,clubs move up and down a pyramid of competition on the basis of promotion and relegation, i.e. merit-based criteria as opposed to economicallyba

Contents Acknowledgements page viii Introduction 1 1 The birth of EU sports law and policy 5 2 Towards a theory of EU sports law and policy 23 3 The sports policy subsystem 61 4 Sport and the European Court of Justice 80 5 Sport and EU competition law 109 6 Reconciling sport and law 160 7 The future of EU sports law and policy 201 Appendix 1: The Bosman ruling 222 .