European sports law: collected papers.

• Author: Weatherill, Stephen

I am immensely flattered and honoured that the Asser Instituut has undertaken to publish a collection of my writing in the area of EC law and sport, and I thank them most warmly for this generous mark of approval. I am delighted too to be given this opportunity to write a short Introduction designed to sketch just why I have always found this area to be intellectually rewarding. 'Sport and the law' is, for sure, something of a niche interest--though, thanks to Jean-Marc Bosman (and Jean-Louis Dupont too) it is a good less esoteric to claim an interest in sport and the law today than it was back in the distant 1980s when I first grappled with the complexities--but it is one that repays the investment of time and energy. Researching the field tells us something about sport, of course. But it tells us something about EC law too. Examination of the special character of sport when placed under EC law's microscope reveals the scope of EC trade law's adaptability to the particular context in which it is applied. And the story of EC sports law told through the case law illuminates the way in which EC law is exploited by actors as a lever to prise open sometimes long-established organisational patterns. Sport has in recent years become more commercialised and more juridified too. The challenges to its self-regulatory preferences have strengthened, and EC law plays a significant part in this narrative. But how to assess the quality of the EC's contribution? That has been an abiding concern for me.

Where lies the interest in 'EC sports law'?

The EC Treaty does not refer to sport at all. The EC is therefore not constitutionally competent to adopt legislation with the explicit aim of regulating sport. But the EC Treaty contains provisions that exert a broad control over the functioning of the whole economy. These include, most significantly, the provisions on free movement of persons and services (Articles 39 and 49 EC) and the rules on competition (Articles 81 and 82 EC). Since sport has an economic dimension, sporting practices fall within the broad scope of the EC Treaty. Therefore sporting practices must comply with these Treaty rules. In this way EC law has overlapped with 'internal' sports law.

It is this complex and ambiguous confluence that has long stimulated my interest in this field. How legitimate is the EC's claim to subject sporting practices to the rules of the EC Treaty given that the Treaty offers no guidance on the extent to which sport's distinctive features should inform the legal analysis? How legitimate are the frequent appeals of sports federations to be permitted autonomy from legal intervention given that their decisions frequently carry significant economic implications? In fact, the rapid increase in recent years in the commercial significance of the sports sector, driven in part by the technological and regulatory re-shaping of the broadcasting industry, has brought with it ever more intense scrutiny of the role of law in influencing the choices available to sports governing bodies.

My general feeling is that EC trade law should not be applied to sport in a way that neglects sport's undoubted special characteristics. For example, clubs in a professional League are not competitors of the type found in normal markets. Sports clubs need opponents--they need credible rivals. There is a pattern of interdependence among clubs in a League which marks out organised sport as culturally and economically distinct from sausage-making. Sport is, in some respects, a special case, and the law should respect that, or else suffer justified criticism for insensitive mishandling of the subject-matter. On the other hand I have never been able to accept that sport is quite as special as is sometimes claimed by sports federations. That is, I cannot accept that the mere fact that a practice with economic implications is located in the sports sector is sufficient to entitle it to immunity from legal control. Nor can I easily hide my occasional frustration at the airily uncritical claims of those engaged in sports governance that things are best done as they always have been done. So I have always favoured a model which embraces an inevitable intersection between the EC's legal order and sports governance--that is, one according to which sport is subject to EC law but in which sport's special features are relevant to the legal analysis. The interest for me then lies in deciding just where sport has a convincing claim to special treatment at law which recognises its special social and economic characteristics and where, by contrast, sports bodies are engaged in self-serving defence of a status quo which deserves no place in modern life. Sport is special. But how special?

The European Court sets the scene

Three major judgments of the European Court demonstrate an evolution in the Court's own depiction and understanding of the issues at stake. My writing is by no means confined to the practice of the Court, for the challenge of understanding EC law and policy as it affects sport necessarily demands that account be taken of the Commission and more generally of the range of public and private actors who exploit the EC tier of governance in order to promote their interests and who, in doing so, frequently induce adaptation in existing national, international and predominantly self-regulatory patterns of sports governance. But the Court's judgments serve to structure much of the debate and the analysis. And they illuminate the awkward tensions involved in shaping EC sports law and policy.

In Walrave and Koch v Union Cycliste Internationale the Court treated the composition of national sports teams as unaffected by the EC Treaty's prohibition of nationality-based discrimination where their formation is 'a question of purely sporting interest and as such has nothing to do with economic activity.' (1) The result was understandable. There is simply no international representative football without restrictions on selection policies--a Dutch football team made up of Germans or Scots or Peruvians is no Dutch team at all. Rules relating to nationality define the very nature of the enterprise. But the Court, in showing respect for the nature of the sport, employed a poorly crafted legal formula. Its reference to 'a question of purely sporting interest' which 'as such has nothing to do with economic activity' is unhelpful. Clearly selection rules governing international representative football are of sporting interest. But--equally clearly, I think such rules have plenty to do with economic activity. International football is big business--players enhance their profile and popularity, and therefore their earning potential, depending on their exposure as international footballers. In reality the spheres of sport and economics commonly overlap, for most sporting rules are of sporting interest and they also exert an economic impact. What is really at stake is not a group of sporting rules and a separate group of economic rules, but rather a group of sporting rules which carry economic implications and which therefore fall for assessment, but not necessarily condemnation, under EC trade law. This is the core of my thesis that EC law and 'internal' sports law cannot be kept separate.

Walrave and Koch introduced an unfortunate claim to a separation between the sporting and the economic sphere, while also accepting that sport's special expectations could be taken into account in the application of EC law. The second landmark decision, Bosman, is thematically similar. (2) The Court referred to the problem in drawing attention to 'the difficulty of severing the economic aspects from the sporting aspects of football'. But it did not offer a clear solution. '[T]he provisions of Community law concerning freedom of movement of persons and of provision of services do not preclude rules or practices justified on non-economic grounds which relate to the particular nature and context of certain matches'. The Court is in general terms accepting there is an area of sporting autonomy free of interference by EC law, but the precise nature and purpose of these 'noneconomic grounds' is not easy to discern. However, as in Walrave and Koch, the Court in Bosman, though unwilling to rule out the possibility in principle of sporting practices falling foul of the EC Treaty, was prepared to discover scope for the promotion of sport's special concerns. It stated that

'In view of the considerable social importance of sporting activities...