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The Adjudicative or Interpretative Solution

The adjudicative or interpretative solution is doubtless the least attractive to sports federations of the three available options. Under this approach they are forced to defend their claim to autonomy on enemy territory, as it were: to show why ‘the law’—the law of states, the law of the EU—needs and deserves adaptation in their case. Whatever degree of autonomy sport is able to extract is dependent on what the adjudicator is willing to yield in an individual case. But no court denies without nuance that ‘sport is special’, though available judicial receptivity to the extent that sport is truly special may vary and may, in particular, commonly not be as generous as sports bodies would assert. The real questions are how special is sport. And this is where the real heartland of the problematic intersection of the lex sportiva and ‘ordinary law’ arises. This is mapping the adjudicative or interpretative solution and it forms the strategic and the intellectual core of sports law as a discipline. Sport is special—but how special? Some degree of autonomy may be merited—but how much, and why? This is strategically important because this is how pleas for autonomy need to be framed. And it is intellectually significant because it is here that a normative assessment of the vigour of the claim that ‘sport is special’ must be delivered.

Sometimes it is clear that sport is special. For example, in a normal industry there would be neither motivation nor justification for grouping workers according to their nationality. In sport, where national representative teams are involved, that is the very nature of the activity. So EU law’s normal assumptions that discrimination on the basis of nationality is sternly prohibited need to be applied with recognition of the special character of sport.[1] [2] [3] It is expected that the German football team is composed of Germans and that the members of the French rugby team are French, whereas no one would assume that a German car-maker should have an existential need to employ only Germans or that a French bank should have only French employees. Sport is special. Similarly the essential need to guarantee to spectators that a sporting event is not fixed in advance, that its outcome is genuinely uncertain, justifies rules that prohibit the multiple ownership of football clubs in the EU.150 In a normal industry, attempts to prevent an owner expanding his or her portfolio of companies would amount to anti-competitive restraints with the potential to depress prices by reducing the competitive pool of potential buyers (unless exceptionally the purchase would push the buyer into an unacceptably powerful position in the relevant market). Sport is special.

But when the public authorities in Milan violated the EU rules on public contracting by failing to meet the required standards of transparency and open bidding, there was no protection available simply because the project in question involved the construction of a football stadium for the 1990 World Cup.m It could have been a school, it could have been a hospital: it happened to be a football stadium. There was nothing special about the sporting context. The law applied in the normal way—the law had been broken. And when a medley of suppliers were found to have fixed prices for goods, it mattered not that the goods in question happened to be replica football shirts.152 This was a straightforward breach of UK competition law. No possible softening could be deserved simply because it was consumers of sports goods that were being cheated of price competition in the market. In similar vein the Commission found that the organizers of the 1998 Football World Cup in France had violated what is now Article 102 TFEU by abusively restricting sales of tickets ‘blind’—that is, in advance of the draw for the competition, before the identity of the participating teams was even known—to nationals and residents of France.!53 The Commission quite correctly dismissed the far-fetched argument that such discrimination could be justified on the basis of public security, finding that ‘such a policy was excessive because it failed to take into account the generally peaceful nature of consumers purchasing tickets at a time when the identities of participating teams are not known’; there was no ‘specific security risk’.^4 Only if there were, might sport be treated as special. Since this intervention, ticket sales for major sporting events in the EU have been conducted on the basis that all nationals of EU Member States shall be treated equally.^ One final example of sport not being special will suffice. When the Court of Justice was asked to rule on the burden of proof applicable under Directive 2000/78 on equal treatment in employment and occupation in cases associated with imputing to an employer discriminatory comments made by an individual, it was not of material significance that the employer happened to be the leading Romanian football club, Steaua Bucarest.^6 Determining legal responsibility for such comments as ‘Not even if I had to close

Steaua down would I accept a homosexual on the team____There’s no room for gays

in my family, and Steaua is my family’ did not depend on the sporting context. Sport is not special. In fact, the case is a helpful reminder that sport truly is not as special as is sometimes claimed. There is no hint here of the virtues of tolerance and respect which pious sports federations will sometimes claim to be spreading.

Sometimes sport is special. Sometimes it is not. It is the cases where sport may be special that are the truly interesting ones. What criteria are decisive? And who decides—how much room should sport be given to make its choices? EU law is the field of inquiry pursued in this book. And it is this third adjudicative or interpretative strategy that is the main part of the inquiry—here is where EU law’s special demands are tasked to mesh with sport’s. But the reader should not overlook the wider map of sports law: the first two strategies considered previously are concerned with avoiding even needing to mesh. And these are tensions and strategies that are found in the development of sports law in any jurisdiction, not only in EU law.

!53 Decision 2000/12 1998 Football World Cup [2000] OJ L5/55. See S Weatherill, ‘0033149875354: Fining the Organisers of the 1998 Football World Cup’ [2000] ECLR 275.

!54 Decision 2000/12 (n 153) para 112.

  • 155 eg Euro 2000 Football European Championships, IP/00/591, 8 June 2000; 2004 Olympic Games in Athens, IP/03/738, 23 May 2003; 2006 World Cup, IP/05/519, 2 May 2005.
  • 156 Case C-81/12 Asociatia ACCEPT, judgment of 25 April 2013.

  • [1] Case 36/74 Walrave and Koch v Union Cycliste Internationale [1974] ECR 1405. See Ch 4.8.
  • [2] COMP 37.806 ENIC/UEFA, IP/02/942, 27 June 2002. See Ch 5.2.
  • [3] Case C-103/88 Fratelli Costanzo v Commune diMilano [1989] ECR 1839. 152 Manchester United, Umbro, JJB Sports and others v Office of Fair Trading (2005) CAT 22.
 
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