Sport and competition law: an interesting twosome.

• Author: Olfers, Marjan
• Position: ARTICLES - Report

"I again saw under the sun that the race is not to the swift nor the battle to the strong, and neither is bread to the wise, nor wealth to the discerning, nor favour to men of ability; for time and chance overtake them all." Ecclesiastes 9 verse 11 Not that long ago, at the end of the twentieth century, competition law made its entry into the world of sport. Sports regulations have been placed in a (European) competition law framework ever since because of conflicts between players or athletes and the association, between the clubs and the association, between the association and emerging other associations, or between the association and third parties such as broadcasting licence holders, etc. In 1999 the European Commission had to handle more than 50 sport-related complaints. Competition law is being used as an instrument to settle disputes in favour of the individual's own interests, the club's interests, or those of a third party (such as broadcasting licence holders), which are often diametrically opposed to the interests of the collective, the sports organization as a whole (chapter 16). Casting a side-glance at the development of applying competition law to sports regulations in the United States, one may assume that the trend to interfere using competition law wilt continue for the time being.

Central to this research was the tension between sports regulations and European competition law. In that context the research was aimed at determining whether sports regulations have their own sphere, and, if so, how this sphere is defined in relation to European competition law.

The key question was researched from two important angles:

1. The uniqueness of sport. Referred to in this study also as the basic principles of sport or the intrinsic value of sport;

2. Sport's beneficial function to society. Referred to in this study also as the extrinsic value of sport.

The uniqueness of sport

To find an answer to the central question in this doctoral thesis, a profound understanding of sport is necessary. For there is no authoritative definition (par. 1.5), the basic characteristics of this phenomenon have been researched. Sport is a (visible) form of competition or rivalry (par. 1.2 and 1.5). Sport has its own rules, making the game recognizable throughout the world (par. 1.3). The conditions of the (usually physical) contest in sport are identical to the extent possible, the ultimate goal being to produce a winner (par. 1.5). Collectively, these characteristics distinguish sport from various other social phenomena (par. 1.6).

Subsequently, in the second chapter, sport in an organized form was researched. Sport developed in clubs and associations (par. 2.2 and 2.3). The sports organization governed by private law is distinguished by a monopolistic structure (see par. 2.3). The association is the umbrella organization that stipulates when, where, and under which rules the product, the game or the competition, is realized. Sports regulations that have a direct relationship to the basic characteristics form part of this "uniqueness" of sport (par. 2.4). In addition, there are numerous sports regulations regarding the structure of the sports organization and sports regulations guarding the "integrity" of sport and the sports organization, for example through disciplinary rules (see par. 2.4.4).

Sport as a phenomenon placed in a favourable social framework

In the third chapter the social framework of sport was researched. Sport's importance to society is, inter alia, evidenced by the Declarations to the Treaty of Amsterdam and Nice (par 3.2.1., 3.2.2), the European Constitution [Europese Grondwet] (par, 3.2.3), and the Treaty of Lisbon (par. 3.2.3). Not only is sport viewed as a means to improve health, the educational, social, cultural, and recreational dimension is also continuously emphasized by governments or by institutions such as the European Commission. Due to the Community administration's one-sided attention for the benefits of sport to society, sport is being propagated as a play for pleasure, not for gain, which can be reduced to the original "amateurism" of De Coubertin (par. 3.4). The one-sided approach to idealistic, virtuous goals does not do justice to the phenomenon of sport. After all, top-level sport still is very much part of the phenomenon of sport and of society as a whole, in which top-level sport, for that matter, also has important functions (par. 3.6).

Delineation of jurisdiction

In the second part, in chapter 4, aspects of delineation of jurisdiction were researched. If the Treaty of Lisbon should enter into force, the Union, for the first time, through an article in the Treaty about sport, will have the authority to support, coordinate, or supplement actions taken by the Member States with regard to sport. The responsibility for the social functions of sport in society still lies principally with the Members States and the sports organizations (par. 4.2.3 and 4.2.4). Sports organizations governed by private law cannot escape application of European law (par. 4.2.5). as is shown in par. 4.2.5, the EC Treaty is mainly aimed at economic integration. In order for European law to apply trade between states must be affected (chapter 5). In the United States, federal law applies only if interstate commerce is involved. It had opted for the intrinsic approach (by emphasizing the uniqueness) of the phenomenon of sport at first, which led to the exclusion of baseball from the application of federal law as no cross-border economic activity could be demonstrated (no interstate commerce, chapter 5.3). This angle, however, does not do justice to the concept of sport, as sport is part of society and, therefore, cannot evade the economy.

Sport evolves from a game into an economic activity (chapter 6). The question then arises how "amateurism" fits into European law (chapter 7). Amateurism is not a legal concept. The concept of economic activity is strongly interwoven with the concepts of "worker" and "service provider" under the EC Treaty (see par. 8.2 and 8.3). a purely extrinsic approach taking only the economic aspects into consideration (just like a purely intrinsic approach), fails to do justice to the concept of sport. After all, such a one-sided approach denies the fact that sport has non-economic basic characteristics.

Application of the free movement regulations to sports regulations

Applying European law to sport and to sports organizations does not automatically mean that the law has no consideration for the unique characteristics of sport. In the third part the application of the free movement principles to sport was researched. The Court of Justice of the EC has applied the free movement regulations to nationality clauses (chapter 9), selection criteria (chapter 10), and transfer periods (chapter 11). Nationality clauses with regard to national matches and selection criteria do not contravene the free movement regulations for reasons that lie in sport only.

Competition law and the sports organization

In the fourth part competition law in relation to the sports organization was researched. In the United States competition policy is influenced by the idea that market interference must be kept to a minimum, even if this leads to...