Equal Treatment of Non-nationals in National Championship

In 2011 the Commission published a funded study into the extent to which a nonnational may be excluded from a competition which is designed to identify the national champion.89 This had been mentioned as an issue deserving attention in the Staff Working Document accompanying the White Paper,[1] [2] and in 2008, the Commission, answering a question by MEP Ivo Belet, contented itself with a cautious reply setting out its basic approach to the application of EU law to sport and promising the very study which subsequently emerged in 2011.91

The Report of the study funded by the Commission makes clear that access restrictions vary state by state, sport by sport. It steers an intelligent route between the expectations of non-discriminatory treatment on the basis of nationality which is required by EU law and the legitimate concerns associated with the organization of sporting competition. A non-national plainly could not demand to be crowned as national champion, for that would destroy the very nature of the contest: but a less rigid approach could plausibly be adopted with regard to participation by non-nationals in the event. In line with the thematic investigation provided in this chapter, proportionality and the necessity of the restriction are the principles that are of most operational significance in EU law.

Take a chess (or squash, or snooker, or darts) tournament with generous prize money, attractive to all players irrespective of nationality, but which is also designed to identify the chess champion of a country. One could easily imagine a model according to which the best six players of that country compete along with six nonnationals in an all-play-all format. The winner of the competition would not be declared the national champion if he or she was not a national of that country, but whichever player finishes highest among the six nationals would wear the crown. That would seem to maintain the integrity of the competition to find the national champion: there is no reason to exclude non-nationals, whose interest in participation is purely economic, from participation, there is reason only to exclude them from the possibility of being national champion. So limiting entry to nationals would be unnecessary as a means to reveal the champion player of that state and would therefore be incompatible with EU law.

Imagine by contrast one were to hold such a competition, but on a knock-out basis. The problem is that although the best player will normally win, there is a bias built in depending on the pairings. It is the luck of the draw: the player who is a national of the country concerned that survives longest could be declared national champion but that may not be because he or she has proved his or her worth in competition against all the other participants but rather because he or she has been drawn to play relatively weak players in early rounds. Here there may be a good reason to confine the competition to nationals alone, for only in this way will the best player be reliably identified.

It is at least possible that the recognition in Article 165(2) TFEU of the promotion of ‘openness’ as a feature of the European dimension of sport would strengthen the force of a legal challenge by an excluded participant. However, the sporting margin of appreciation met in Chapter 7.4 deserves respect. It would go too far to demand that as a matter of EU law it is not permitted to use a knock-out format to determine a national champion because of its exclusionary effect on non-nationals.

A related question would ask whether EU law could be used as a lever by a club in one Member State to gain access to the league championship of another Member State. Here too Article 165 TFEU’s embrace of ‘openness’ would assist. The matter would not concern natural persons but legal persons, but the same issue, the tension between national-based competition under the lex sportiva and the EU’s integrated internal market, would arise. Analysis is best left for wider discussion of governance in sport in Chapter 10: this chapter is limited to the consequences of nationality for individual athletes.

  • [1] ‘The EU and Sport: Background and Context’ (n 61) 45.
  • [2] WQ P-4798/08 [2009] OJ C40.
 
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