An EU Law and Policy on Sport?
Against this constitutional background, it is important to appreciate that even to discuss the prospects for an EU law and policy on sport is to risk skating on thin ice.
In fact the invitation to pursue an EU law and policy on sport immediately faces three challenges. Is it coherent to seek a role for the EU in developing a law and policy on sport? Is it coherent to suppose that the EU is able to deliver a law and policy on sport? And it is coherent to imagine that an EU law and policy is able to address sport?
The first issue, that pertaining to the role of the EU, is awkward because no sport is organized in such a way as to treat the EU as even relevant. Sports are in general organized under a globally applicable regime, beneath which lie continental and national federations and, lower still, clubs from the professional level down to the ‘grass roots’. There is simply no place in this governance ‘pyramid’ for the EU. Moreover, there is no EU representative team in any sport. The EU flag flutters proudly at golf’s Ryder Cup, but opportunistically so, since it is the continent of Europe, not the EU, which competes against the United States in that biennial extravaganza, and in most events there is no presence for the EU at all. The EU’s quest to build an internal market without frontiers, which converts the territories of its twenty-eight Member States into a single economic space, has no resonance at all with the structure and ambition of sport. So the EU stands accused of clumsy engagement with an activity into which its assumptions, even its very identity and purpose, simply do not fit.
The second issue takes this scepticism about the legitimate role of the EU further. The creation of a law and policy requires the availability of competences and powers apt to deliver such a law and policy. As already outlined, the EU has only the competences and powers conferred on it by its founding Treaties—no more. This is Article 5 TEU’s foundationally important principle of conferral. Until the entry into force of the Lisbon Treaty in 2009, sport was not even mentioned in the text of those Treaties, and even now, since the Lisbon Treaty, the provision dealing with sport, Article 165 TFEU, is pitched at a level of generality which does not promise concrete guidance. In particular, the EU’s constitutional limitations dictate that it tends to be much more heavily engaged in the negative task of deciding what sport may not do when put to the test under EU free movement and competition law than with making positive provision for what should be done. Up until 2009 it was doing so without any help from the Treaties: since 2009 it has some help, but not much. The EU is therefore working with thin and ambiguous materials when it contemplates the construction of a law and policy on sport. It has good reason to be modest in its ambition. Its competences are tightly confined and the powers at its disposal, though apt to spill over into soft law beyond the narrow grant of binding legislative powers and embracing the ‘social dialogue’ foreseen by Articles 154 and 155 TFEU too, are also relatively meagre.
The third issue asks whether it is sensible for the EU (or, for that matter, any other rule-maker) to seek to construct a law and policy on sport rather than sports. Sport has many different manifestations. Amateur and recreational sport is quite distinct in its motivations and effects from professional sport. Sports may be individual, they may be team: they may be classic tests of ‘higher, stronger, faster’, they may be more graceful and artistic. Addressing ‘sport’ risks trying to make one size fit all. The particular criticism of the EU has long been that it has tended to focus on football most of all and, to a lesser extent, on Formula 1 as if they are the sports that provide a model that all others do or should follow. No doubt the economic significance of these two sports is a reason for their prominence. No doubt too that the more commercially significant sports have a particular incentive to dress themselves in the clothes of fair play, tolerance, and a healthy lifestyle as part of a strategy to strengthen their claims to deserve autonomy. But a policy agenda that lacks nuance in appreciating the diversity of ‘sport’ is not simply misguided, it is potentially harmful.
A helpful way to collect together these reservations is to ask whether the EU is really able to add value to the regulation of sport or whether instead it gets in the way of the legitimate activities of sports federations and governing bodies and applicable national and international legal rules.
These three reservations about an EU law and policy on sport frame the inquiry. They caution modesty. But they do not foreclose the importance of conducting that inquiry.
The central—and, notwithstanding the three aforementioned reservations, inescapable—question asks how far ‘sport is special’. That then leads to an exploration into how that special character, once identified, should be reflected in the application of legal rules. That is true of inquiry into sports law in any jurisdiction. In the EU, however, an extra dimension is added: that the EU that has no general regulatory competence, but rather only the mandate granted by its Treaties, which is most of all Article 165 TFEU plus the commitment to creating an internal market.
In a sense, as already suggested in Chapter 1, this is an inquiry into the intersection of two forms of sports ‘law’—the legal rules to which sports bodies are subjected (by states and by regional actors such as the EU) and the rules which sports bodies themselves create (the lex sportiva). It is, put another way, a friction between ‘external’ and ‘internal’ sports law. The quest is for an intellectually coherent framework as an essential pre-condition to detailed decision-making about just when sport has made a sufficiently compelling case to deserve some degree of autonomy from the normal assumptions of the legal rules of the jurisdiction to which it is in principle subject. And that autonomy will be delivered, if at all, through an interpretation of those legal rules which is sensitive to sport’s special character—what Article 165 TFEU calls its ‘specific nature’.
So, from the perspective of sports governing bodies, there are good economic and political reasons why sporting autonomy should be effectively protected. But are there good legal reasons? This is the general challenge of sports law—how far should we accept that sport is special, and how should we then allow this to affect the application of the ‘ordinary’ legal rules. How strong is the intellectual case? This occurs against a background in which typically and inevitably sports bodies come to court pushing for an interpretation of the law that maximizes their autonomy. The institutions of the EU, most of all the Court and the Commission, must then seek to piece together a coherent approach to the regulation of sport against a Treaty background which is not at all dedicated to elucidating the peculiarities of sport. EU law plainly erodes the self-regulatory paradigm which has for so long been dominant in sports governance. But to what effect, good or ill? Does the EU add value?
This has generated a rich literature covering the shaping of EU law and policy on sport, both in book-length treatment and articles and in more general political science literature which emphasizes the interaction of the several actors, the pattern of prevailing interests, and the strategies employed to protect and promote particular preferences. Questions that are familiar within this thematic inquiry will be encountered in the detailed analysis provided chapter-by-chapter in this book, and Chapter 12, the concluding chapter, will tie the exploration together.
-  eg R Parrish, Sports Law and Policy in the European Union (Manchester University Press 2003);S Weatherill, European Sports Law (2nd edn, TMC Asser 2014); B Bogusz, A Cygan, and E Szyszczak(eds), The Regulation of Sport in the European Union (Edward Elgar 2007); R Parrish and S Miettinen,The Sporting Exception in European Law (TMC Asser 2007); J Anderson, Modern Sports Law: A Textbook(Hart 2010) chs 1 and 8; B Van Rompuy, ‘Economic Efficiency: The Sole Concern of ModernAntitrust Policy?’ (Wolters Kluwer 2012) especially ch 5; M Mataija, Private Regulation and the InternalMarket: Sports, Legal Services, and Standard Setting in EU Economic Law (OUP 2016) especially ch V
-  eg S Van den Bogaert and A Vermeersch, ‘Sport and the European Treaty: A Tale of UneasyBedfellows’ (2006) 31 EL Rev 821; S Weatherill, ‘ “Fair Play Please!”: Recent Developments in theApplication of EC Law to Sport’ (2003) 40 CML Rev 51; R Parrish, ‘Lex Sportiva and EU Sports Law’(2012) 37 EL Rev 716; A Duval, ‘Lex Sportiva: A Playground for Transnational Law’ (2013) 19 ELJ822.
-  eg L Barani, ‘The Role of the European Court of Justice as a Political Actor in the IntegrationProcess: The Case of Sport Regulation after the Bosman Ruling’ (2005) 1 JCER 42; D Dimitrakopoulos,‘More than a Market? The Regulation of Sports in the EU’ (2006) 41 Government and Opposition 561;B Garcia and H Meier, ‘Limits of Interest Empowerment in the European Union: The Case of Football’(2012) 34 European Integration 359; A Geeraert, J Scheerder, and H Bruyninckx, ‘The GovernanceNetwork of European Football: Introducing New Governance Approaches to Steer Football at the EULevel’ (2013) 5 International Journal of Sport Policy and Politics 113; A Geeraert and E Drieskens,‘The EU controls FIFA and UEFA: A Principal-agent Perspective’ (2015) 22 JEPP 1448.