Sports law and policy in the European Union

Richard Parrish

• Publisher: Manchester University Press
• Year: 2013
• ISBN:
  9781847795830
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Ideologies
• Index: Politics & International Relations

Investigates the birth of EU sports law and policy by examining the impact of the Bosman ruling and other European Court of Justice decisions, the relationship between sport and EU competition law, the organization of sport, and the relationship between sport and the EU Treaty.

1
The birth of EU sports law and policy

Despite the absence of a Treaty base, the EU currently operates a sports policy. This policy is the product of activity within the EU’s sports policy subsystem, a subsystem formed in response to the infamous Bosman ruling. Prior to that the EU operated a highly polarised and fragmented sports policy characterised by two conflicting policy approaches to sport. First, the EU took a fleeting regulatory interest in sport. The ECJ and the Competition Policy Directorate intervened in sport to correct free movement and competition restrictions and distortions within the Single Market. These interventions were not however informed by the EU’s other main policy strand and as a consequence EU sporting actions were not co-ordinated. The second strand of policy involvement in sport involved the EU pursuing a political interest in sport. In particular, sport was identified as a tool through which the EU could strengthen its image in the minds of Europe’s citizens. As the two strands of policy involvement in sport did not relate to one another, a policy tension characterised EU sports policy.

Today, the regulatory and political policy strands of EU involvement in sport relate to one another in a more co-ordinated manner. The construction of the separate territories approach to sport has allowed both policy strands to co-exist within the framework of a more co-ordinated sports policy. The practical effect of separate territories is a shift in the nature of EU regulatory involvement in sport. Single Market regulation has become tempered by socio-cultural regulation. In other words, the EU is moving from a market model of regulation towards one in which the EU recognises the social and cultural characteristics of the sports sector within its regulatory approach. By establishing separate territories of sporting autonomy and judicial intervention, the EU has in effect established a distinct legal approach for dealing with sports-related cases. The recent application of law to the sports sector is deeply influenced by the political values embedded within sports policy. Accordingly, current legal interventions in sport balance the EU’s regulatory and political policy interests in sport. The development of the separate territories therefore marks the birth of EU sports law.

EU sports law is therefore a product of the EU’s sports policy. The EU lacks the necessary Treaty base to develop a fully fledged common sports policy underpinned with primary and secondary legislative actions. Sports policy is therefore primarily regulatory in nature. It seeks to alter the values which underpin the regulation of sport. In other words, sports policy attempts to balance the classic Single Market regulation of sport with a form of regulation which respects sports social and cultural nature. The clarification of the legal environment allows for the EU’s other political policy interests in sport to be pursued without being undermined by Single Market regulatory actions. EU sports policy can then develop through sports integration into a number of socio-cultural policy subsystems such as education, youth and health.

For those seeking to develop a socio-cultural sports policy, the involvement of law is viewed with unease. Sport is an essentially private pursuit which fulfils important social, cultural, educational and physical functions within society. Furthermore, sport and the law are often considered ‘separate realms’. In other words, the law operates in a manner totally incompatible with the operation of sport. ‘Legal norms are fixed rules which prescribe rights and duties; relationships within the social world of sport are not seen in this way’ (Foster 1993: 106). However, sport has never claimed to operate above the law. After all, sport could not operate without law. Rather, it has developed an internal legal structure of its own. On the one hand, this legal system specifies the rules of the game such as the offside law in football. On the other, it also concerns the organisation of the sport. ‘Organisational’ laws regulate important issues such as access to the competition, the rights of players and the exploitation of broadcasting rights.

Throughout the 1990s sport developed into a significant industry in its own right. The extent of this commercialisation contributed to the ‘juridification’ of sport, ‘where what are intrinsically social relationships between humans within a social field become imbued with legal values and become understood as constituting a legal relationship – social norms become legal norms’ (Gardiner et al. 1998: 66). Juridification therefore refers to the process through which the general laws of the land penetrate the internal laws of sport. The juridification of sport accelerated interest in the idea of sport and the law as an area of legal study. Established general legal principles deriving from, for instance, criminal law, contract law, the law of torts, public law, administrative law, property law, competition law, EU law, company law, fiscal law and human rights law, have been applied to a wide number of sporting contexts including: public order and sport, drugs and sport, safety in sport, disciplinary measures in sport, conduct in sport and wider issues relating to restraint of trade and anti-competitive behaviour in sport.

The extent of the relationship between sport and law has lead some academics to extend their legal analysis beyond the confines of sport and the law by identifying a distinct body of sports law (Gardiner et al. 1998, Beloff et al. 1999). As Beloff et al. claim, ‘the law is now beginning to treat sporting activity, sporting bodies and the resolution of disputes in sport, differently from other activities or bodies. Discrete doctrines are gradually taking shape in the sporting field’ (Beloff et al. 1999: 3). In other sectors the weight of legislation and case law combined with the development of discrete doctrines has led to the creation of other activity-led fields of law. As Gardiner et al. explain:

labour or employment law is a subject area that has only achieved recent recognition. It has its origins in contract law in the employment context, but no one would doubt that with the plethora of legislation during the post-war era regulating the workplace, it has become a subject area in its own right. Passing through various incarnations such as industrial law, it is now a mature legal subject. (Gardiner et al. 1998: 73)

The concept of sports law is not universally accepted. Grayson argues that:

no subject exists which jurisprudentially can be called sports law. As a sound bite headline, shorthand description, it has no juridical foundation; for common law and equity create no concept of law exclusively relating to sport. Each area of law applicable to sport does not differ from how it is found in any other social or jurisprudential category. (Grayson 1994: xxxvii)

Critics of sports law argue that cases involving sport are grounded in the well-established fields of law such as contract and tort. Indeed, ‘the traditionally minded, purist lawyer, may indeed distrust any activity-led “vertical” field of law, preferring the surer, traditional ground of rule-led “horizontal” law’ (Beloff et al. 1999: 3).

In recent years, the sport and the law versus sports law debate has taken on a new dimension. Commercial pressures and the public’s desire to see top-class competition has fuelled the internationalisation of sport. To regulate this cross-border activity, sports governing bodies have established rules governing relations between participants. The international and nongovernmental character of modern sport has not however ushered in for sport a new form of international autonomy insulated from law. The growth of the EU’s Single Market has been central to the internationalisation of sports law. The re-regulation of sport has taken place within the context of the Treaty of Rome’s fundamental economic freedoms. As the EU is keen to ensure these freedoms are protected, it has applied the Treaty’s free movement principles to a growing number of sports-related cases. The ECJ rulings in Walrave, Donà, Heylens and Bosman illustrate the growing relationship between sport and the EU. However, the relationship between sport and the EU has a relevance beyond the narrow confines of regulating economic activity within the Single Market. The EU has social and cultural aspirations and sport has been identified by the EU institutions as one of the tools through which these goals can be achieved. Following Bosman, political arguments have penetrated the world of sport and EU law. A new approach for dealing with sports cases is emerging in which the EU is establishing the boundaries of judicial penetration in sport – in other words the birth of EU sports law. The construction of EU sports law allows the EU’s regulatory and political policy objectives for sport to co-exist within the context of an embryonic EU sports policy.

The observation that a distinct body of law known as sports law is emerging in the EU requires both empirical and theoretical justification. One of the weaknesses of the sports law argument is the lack of theoretical underpinning. Although the literature on the emergence of sports law is descriptively strong, it remains unclear at what point the concept of sport and the law loses its relevance and the distinct area of sports law emerges. Furthermore, beyond the assertion that commercialisation has driven juridification, little has emerged on the dynamics driving the birth of sports law. Although sports initial linkage to the EU’s legal framework was driven by legal/regulatory norms, the emergence of a distinct field of sports law within a wider sports policy has been politically driven. Within the context of the EU, political science and public policy therefore offer a fruitful venue for analysis. Law should not shy away from the insights offered by other disciplines. One of the most refreshing developments in both law and political science has been the interest shown in ‘judicial politics’. As Wincott argues, ‘somewhat belatedly the Court of Justice is now being subjected to sustained political analysis and taken into account in the general political science literature on European integration’ (Wincott 1996:170).

The birth of EU sports law and policy offers both political science and law the opportunity to further develop this research agenda. Although the politics of sport is a well-developed area of research, the politics of sports law remains largely untouched by political science. As such, political science has been slow in recognising the empirical and theoretical significance of the growth in the EU’s sporting activity. It has been law that has colonised this new research terrain. However, law has been equally slow in underpinning its work with theoretical strength, partly because of the practitioner-based focus.

Single market sports regulation: sport and the law 1970–1995

The EU’s first excursion into sporting issues occurred in the 1970s. Two ECJ rulings established important principles governing the relationship between sport and the EU. In Walrave (1974) and Donà (1976) the ECJ established that sport is subject to EU law in so far as it constitutes an economic activity within the meaning of Article 2 of the EEC Treaty, although exemptions from the principle of non-discrimination on the grounds of nationality are permitted but linked with the practise of sport on a non-economic basis.¹ A number of years later in Heylens, the ECJ addressed the issue of the recognition of qualifications for sports trainers.² However, it was not until the seismic Bosman ruling of 1995 that the full implications of previous case law became apparent.³ In the case, Jean Marc Bosman, a Belgian footballer, successfully challenged UEFA’s use of nationality restrictions and the international transfer system.

Walrave, Donà, Heylens and Bosman are examples of cases where the subject matter just so happened to be sport. The well-established principles of the free movement of workers and the freedom to provide services simply became applied to sporting contexts. Although the ECJ did make reference to the specific characteristics of sport, particularly in Bosman, the principles were applied in a manner irrespective of the subject matter.

The European Commission’s attitude towards discriminatory/restrictive practises in sport in the aftermath of Walrave and Donà was somewhat contradictory. Despite condemning restrictions on player mobility, the Commission’s negotiated settlement approach with the sports world initially resulted in sport and competition law operating in separate realms. The Commission appeared keen to avoid confrontation with the sports world. A number of factors altered this position. The ruling in Bosman acted as an important watershed. Even though in Bosman the ECJ did not address the question of competition law and sport, instead focusing on free movement principles, the Commission used the ruling to justify greater scrutiny of sporting activity. Furthermore, competition law offered individual litigants a more cost-effective venue for redress than the private enforcement route via national courts and the ECJ. The Commission’s sports-related competition law caseload swelled considerably following Bosman. Finally, the change in the economic status of sport undoubtedly contributed to juridification.

The juridification and commercialisation of sport are parallel developments in Europe. The commercialisation of European sport is one of the major reasons why a relationship between sport and the EU exists at all. Sport in Europe has traditionally operated in an environment dominated by public service television and in a context where the actions of governmental and non-governmental organisations have co-existed. In organisational and competitive terms, European sport has been organised on a ‘pyramid’ structure. Organisationally, sports clubs support a structure comprising regional federations, national federations and European federations. Competitively, clubs move up and down a pyramid of competition on the basis of promotion and relegation, i.e. merit-based criteria as opposed to economically based criteria. Since the 1980s, this European ‘model’ of sport has come under sustained pressure due to the television-led commercialisation of sport.⁴

Until the 1980s the regulation of broadcasting was a matter of purely national jurisdiction. In Britain, for example, competition in broadcasting was minimal, often taking the form of a monopoly or a ‘comfortable duopoly’ (Collins 1994: 146). At the beginning of the 1980s there were very few commercial television broadcasters in Europe, yet by the early 1990s there were 58 (Collins 1994: 146). Technology-driven changes in the field of trans-frontier satellite broadcasting altered the nature of broadcasting in Europe (Collins 1994, Humphreys 1996). With a trend in the 1980s towards the deregulation of national broadcasting markets, new forms of international regulation concerning the new ‘Europeanised’ broadcasting market took shape. In particular the EU emerged as the key new regulatory actor. The new broadcasting opportunities offered by new technology such as satellite broadcasting greatly benefited the sports sector in Europe. Football in particular was able to sell the broadcasting rights to events to the new wave of commercial operators who had embraced the new technology. As most of these new operators were financed on a subscription basis, revenues were higher than from the public sector broadcasters. This allowed the sports sector in Europe to maximise profits by selling rights to the highest bidder. However, sport’s new found wealth merely confirmed the operation of the sports sector in Europe as an economic activity subject to supranational regulation. Nowhere are these above developments better illustrated than in modern European football.

In 1996 Rupert Murdoch, Chairman of News International and leading pioneer of satellite television in Britain remarked, ‘we have the long-term rights in most countries to major sporting events and we will be doing in Asia what we intend to do elsewhere in the world, that is, use sports as a battering ram and a lead offering in all our pay television operations’.⁵ For broadcasters, sport is an ideal lead-offering, due to its popularity. The new commercial operators have recognised this. Murdoch added, ‘sport absolutely overpowers film and everything else in the entertainment genre and football, of all sports, is number one’ (World Soccer 1997).

The introduction of new broadcasting technology greatly changed the English football broadcasting market. In the 1987–1988 season the rights for live league football were sold for £3.1 million (Spink and Morris 2000: 167). In 1988, British Satellite Broadcasting (BSB) challenged the ‘comfortable duopoly’ of the BBC and ITV by negotiating a four-year deal with ITV worth £11 million per season. Having contributed more financially, ITV acquired the exclusive sole rights to league football for the four-year period and by 1991 were broadcasting 18 live matches per season. Evidence therefore suggests that in the UK market up until 1992 with the creation of the Premier League, broadcasters dominated the relationship with the football sector. A number of factors served to redress the balance. First, the football authorities saw the potential benefits of maximising income through the introduction and maturation of a new player, BSkyB. As Parry remarked, ‘two is a cartel and three is a market’ (Parry 1996: 21). Second, football required wholesale moderni...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgements
• Introduction
• 1 The birth of EU sports law and policy
• 2 Towards a theory of EU sports law and policy
• 3 The sports policy subsystem
• 4 Sport and the European Court of Justice
• 5 Sport and EU competition law
• 6 Reconciling sport and law
• 7 The future of EU sports law and policy
• Appendix 1: The Bosman ruling
• Appendix 2: The Helsinki report on sport
• References
• Tables of statutes, cases, decisions and reports
• Index