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Conclusion

Sports governance has changed under the influence, though not the detailed direction, of EU law. Collecting together the fragments allowed by the ad hoc accumulation of decisions and near-misses considered in this chapter allows reflection on the themes which animate EU law’s influence over choices made in the governance of sport. In short, what are the conditions according to which EU law grants conditional autonomy to sporting bodies in setting rules to govern their game?

MOTOE pushes towards the elimination of a conflict of interest held by the decision-maker and also, more broadly, to a need for a transparent system of decision-making and openness to review. Similar trends may be observed in consequence of the Charleroi litigation, albeit this is visible in practical reshaping of the system of player release in the shadow of EU law rather than in consequence of a specific decision of the Court or the Commission. FFP reveals a thematically similar concern that regulatory choices and their commercial implications tend to become fused within the governance of sport, which immediately raises legal anxieties. The best argument in favour of the compatibility of FFP with EU law rests in its contribution to the integrity of sporting competition, notwithstanding its clear anti-competitive effects. The story of the regulation of third party ownership shares a concern about the need for some attention to be paid to the separation of the integrity of sporting competition from the influence of economic motivation.

There is in general an argument that EU-proof governance in sport depends on something more procedurally open and, in short, more democratic than the orthodox ‘pyramid’. That is, the conditions attached to autonomy under EU law include requirements of good governance. This is to absorb and convert soft law commitments into a basis for interpretation of internal market law. As explained earlier, in section 10.2, it is easy to extract from the Amsterdam and Nice Declarations exactly this respect for the autonomy of sports governance which is laced by conditions— that, as the Nice Declaration puts it, sports federations are centrally important in the organization of sport, but that in addition they shall operate ‘on the basis of a democratic and transparent method of operation’ and shall provide ‘participatory democracy’.

The Commission has embedded such concern into its documentation. Its 2007 White Paper makes no grandiose claims to elevate the EU to a position of primary responsibility for sport.^0 Indeed it ‘acknowledges the autonomy of sporting organisations and representative structures (such as leagues)’.^1 But this is not unconditional. It identifies challenges in the future governance of sport in Europe and it declares an aim to develop a common set of principles of good governance, ‘such as transparency, democracy, accountability and representation of stakeholders (associations, federations, players, clubs, leagues, supporters, etc.)’.i52 One aspect of this is promotion of the social dialogue. In fact Article 165 TFEU itself points in this direction, for it refers to the promotion of ‘cooperation between bodies responsible for sports’. The Commission’s Communication of January 2011, ‘Developing the European Dimension in Sport’, is a little more pointed.^3 It states that ‘Good governance in sport is a condition for the autonomy and self-regulation of sport organisations’; and that ‘Good governance in sport is a condition for addressing challenges regarding sport and the EU legal framework’.^4 This has legal bite in so far as failure to pay due respect to standards of good governance, including transparency and participation, results in withdrawal of conditional autonomy when sporting practices are examined for their effect on the internal market. In this way EU law has a more powerful influence than might be appreciated from inspection of Article 165 TFEU and the relatively soft policy documents, especially those concerning ‘good governance’ (section 10.12) that have been published by the Commission. EU law cracks open the high level of autonomy that previously prevailed in the production of the lex sportiva, but it does not replace it with top-down [1] [2] [3] [4]

decision-making. Instead it expands the range of actors involved in the process of ‘co-production’ of norms.^

One consequence of this trend is to provide incentives for sports federations to work more closely and cooperatively with the EU, most of all the Commission. In this sense the account provided in this chapter amounts to a more broadly applicable version of the story told in Chapter 6 about how Article 165 TFEU represents the culmination of a process whereby sports governing bodies, having concluded that acquiring absolute autonomy from EU law was simply not politically feasible (nor, as argued in Chapter 6, is it intellectually credible), chose instead to accept inclusion within EU law but on terms which they hoped could be used and applied to grant them a wide zone of autonomy in practice. The discussion in this chapter shows how governance in sport is not immune from EU law but rather must comply with its conditions. There is nonetheless room to allow space for choices, and in football those are increasingly made in a spirit of cooperation between the EU, in particular the Commission, and UEFA.^6 The arrangement for cooperation between the Commission and UEFA which was concluded in 2014 is emblematic. ^ Governing bodies have become users of EU law, rather than wishing it to be kept at bay. FFP is especially notable for UEFA working closely with the Commission and apparently succeeding in inducing it to accept the most favourable legal interpretation of the arrangements, applying also the approving brand of Article 165.[5] [6] [7] One consequence of the trends noted in this chapter is that the network of governance in football has become less straightforwardly hierarchical than would be suggested by a pyramid. There is a complex network engaging a large number of what one may call stakeholders, and less top-down hierarchy.^9 But even if the shape of the governance pyramid has been adjusted, it is still governing bodies which stand at its apex. EU law places conditions on their autonomy or, otherwise put, it puts their practices to the test, especially where regulatory functions overlap with commercial motivations, but it does not oust them from their position of primary responsibility in the organization of sport.

  • [1] See n 11. 151 White Paper on Sport (n 11) 13. 152 ibid 12.
  • [2] 153 COM (2011) 12,
  • [3] tion_en.pdf> accessed 29 November 2016.
  • [4] 154 ibid para 4.1.
  • [5] cf A Duval, ‘La Lex Sportiva Face au Droit de l’Union Europeenne: Guerre et Paix dansl’Espace Juridique Transnational’ (DPhil thesis, EUI Florence 2015) especially Titre I, ‘Les nouveauxmodes de co-production’, available via accessed 29November 2016.
  • [6] cf B Garcia, ‘UEFA and the European Union: From Confrontation to Co-operation’ (2007)3 JCER 202; A Geeraert and E Drieskens, ‘The EU Controls FIFA and UEFA: A Principal—AgentPerspective’ (2015) 22 JEPP 1448.
  • [7] C (2014) 7378, 14 October 2014. See Ch 6.12. 15s Barnier (n 121). 159 A Geeraert, J Scheerder, and H Bruyninckx, ‘The Governance Network of EuropeanFootball: Introducing New Governance Approaches to Steer Football at the EU Level’ (2013) 5International Journal of Sport Policy and Politics 113.
 
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