Nationality discrimination is part of sport—it defines the activity. The organization of a competition between sausage-makers or bankers from different countries might be a bit of fun but no one would ever suppose that the labour market for makers of sausages or bankers would be constructed on the basis of political nationality. By contrast, the World Cup would lose its point if it were to be robbed of nationality as a basis for the selection of representative teams. An Olympic Games without flags and anthems would be viable, perhaps even healthier thanks to suppression of aggressive nationalism, but it would be an existentially different event.

Sport is special. Article 165 TFEU consolidates that perception within EU law. The question is only how far to allow concession to practices that would normally be offensive under EU law in the name of sporting specificity. The Court has drawn a sharp line between international representative sport and club competition. Its work reveals much about the need for creativity forced upon it by the functionally broad project of the internal market which collides with interests that are not expressed or only thinly articulated in the Treaty yet which must be taken into account in determining the transformative potential of internal market law on the sectors that it reaches. The Court does accept that sport is special but not always as special as governing bodies insist. There remains room for intriguing litigation, especially where the home-grown rules are at stake, and there is also scope for exploring the procedural dimension. It remains open to question what level of intensity of review should apply to determining the scope of the conditional autonomy afforded to sports governing bodies, and how this is affected by the presence or absence of social dialogue.

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