Foreword.

• Author: Weatherhill, Stephen

Sport is not mentioned in the EC Treaty. And yet sporting practices may have profound economic implications, and they may cut across basic assumptions of the EC Treaty such as non-discrimination on the grounds of nationality, free movement across borders and undistorted competition. So if the EC Treaty is to be interpreted in a manner apt to achieve its objectives it cannot afford sport unconditional immunity from its scope of application. On the other hand, sport has characteristics which are not shared by other sectors of the economy and, moreover, the Treaty is deficient in setting out any helpful framework for understanding just what is 'special' about sport. So the EU's institutions, most of all the Court and the Commission, are wisely circumspect when invited to intervene in sport. Add in a host of actors with incentives to argue for maximum autonomy for sport--sports federations and governing bodies, most obviously--and others, particularly those adversely affected by the choices made by governing bodies, with incentives instead to promote the aggressive application of EC law, and the scene is set for the shaping of a fiendishly complicated and hotly contested area of law and policy.

The European Court has a rather spotty record in keeping the law on track. Plenty of sporting practices have been challenged but found to suffer no rebuke when examined in the light of EC law. But why do some sporting rules escape condemnation under EC law? Usually, in my view, it is not because they exert no economic effects. In fact there are few such 'pure' rules. Usually it is because their economic effects are a necessary consequence of their contribution to the structure of legitimate sports governance. This is true of nationality rules governing the composition of national representative teams, of rules governing selection for international competition, of 'transfer windows', of rules forbidding multiple club ownership, of anti-doping rules and procedures, and so on. But in its first great case on sport, Walrave and Koch, the Court referred to 'a question of purely sporting interest' which 'as such has nothing to do with economic activity'. And it thereby introduced the idea of rules which lie beyond the reach of the Treaty. For governing authorities in sport this is a delightful notion, for it helps their interest in maximising the scope of their autonomy from legal supervision. This is the widest possible version of the 'sporting exception'. But...