BULLETIN OF COMPARATIVE LABOUR RELATIONS 66.

The Future of Sport in the European Union

Beyond the EU Reform Treaty and the White Paper

Contributors:

Ivo Belet

Roger Blanpain

Michele Colucci

Juan de Dios Crespo Pe´rez

Frank Hendrickx

Rob Siekmann

Pedro Velazquez

Melchior Wathelet

Julien Zylberstein

Table of Contents

Notes on the Authors xi

Introduction xiii

Chapter 1

The Future of Sports in Europe 1

Roger Blanpain

1. The Importance of Sports 1

2. Does the EU Legal Order Apply? Specificity of Sports? 2

3. The European Parliament: Report on the Future of Professional Sport 3

3.1. The European Football Model 3

3.2. Specificity of Sport 4

3.3. Applicability of European Law : The Point of View of the EP 4

3.3.1. Primary Law 4

3.3.2. Secondary Law 5

4. Governance: Self Regulation and Multilevel Governance 5

5. The Meca Medina Case 5

6. Conclusion 7

Chapter 2

Future Directions of EU Sports Law 9

Frank Hendrickx

1. Introduction 9

2. The EU Integration Process 10

2.1. The Idea of Europe 10

2.2. A Legal Order in Progress 11

3. The Specified Purposes of the EU and EC 12

4. The Reform Treaty 13

5. Analysis of the (Future) Sport Competences 14

6. Future Immunity for Sport? 15

6.1. Specificity of Sport 16

6.2. Immunity Case Law in the ECJ 17

6.3. The Principle of Subsidiarity 18

7. Conclusion 19

Chapter 3

The Future of Sport in the European Union 21

Michele Colucci

1. Introduction 21

2. The EU Reform Treaty 22

2.1. Genesis 22

2.2. Sport in the EU Treaty: In the Name of Specificity and Autonomy 23

3. The White Paper on Sport beyond any misconception or misunderstanding 24

3.1. The White Paper’s content 26

3.2. The «Pierre de Coubertin» Action Plan 28

3.3. The Staff Working Document 28

4. Taking the specificity of sport into account 29

4.1. The European Court of Justice’s Case Law Before the Meca Medina Ruling 29

4.2. The Meca-Medina and Majeen Case 31

4.3. The European Commission’s Main Decisions on the Specificity of Sport 33

5. Conclusion 35

Chapter 4

Is Sport ‘Special’ Under EU Law and Policy? 37

Robert Siekmann

1. Introduction 37

2. Sport not in European Treaties 38

3. Treaty of Amsterdam: 1997 Declaration on Sport 38

4. Treaty of Nice: 2000 Declaration on Sport 39

5. The Declarations on Sport (Amsterdam, Nice) in the jurisprudence of the European Court of Justice 41

6. White Paper on Sport 42

7. The specificity of sport 44

8. Stakeholders’ position 46

9. Sport in the Constitutional and Reform Treaties 48

10. Conclusion 49

Chapter 5

Sport Governance and EU Legal Order: Present and Future 51

Melchior Wathelet

1. Introduction 52

2. The State of Community Law 53

2.1. What Would be the Rules Adopted by the Sporting Federations Which, on the Basis of European Court of Justice Jurisprudence, are Beyond the Scope of Community Law? 54

2.2. What Criteria Have to be Fulfilled for Rules Issued by Sporting Federations and Falling Within the Scope of Community Law to be Declared Acceptable? 57

2.2.1. Organisation of Competitions 58

2.2.2. Player Transfers 59

2.2.3. The Activity of Players’ Agents 59

2.2.4. UEFA Rules on ‘Homegrown Players’ 61

2.2.5. The Centralised Marketing of Media Rights 62

3. The Specificity of Sport 63

4. Towards a Change in Community Law? 68

4.1. Declaration of the European Council of Nice, 7–10 December 2000 68

4.2. European Parliament Resolution of 29 March 2007 on the Future of Professional Football in Europe 69

4.3. Article III-282 of the Treaty Establishing a Constitution for Europe 69

5. The ‘White Paper on Sport’ of the European Commission Published on 11 July 2007 70

6. Conclusion 72

Chapter 6

The European Commission’s White Paper on Sport 77

Pedro Vela´zquez Herna´ndez

1. Introduction 77

2. Why a White Paper 77

3. Main Features 78

4. Structure and Content: 79

4.1. The Societal Role of Sport 79

4.2. The Economic Dimension of Sport 81

4.3. The Organisation of Sport 82

4.4. Follow-Up 85

5. Conclusion 86

Chapter 7

Football – on the Verge between Social Event and Business Activity 87

Ivo Belet

1. Introduction 87

2. The Treaty 88

3. Legal Uncertainty Jeopardises Self-Regulation: The ‘Home-Grown’ Rule 88

4. Should Football Simply be Covered by the Services Directive? 89

5. Media Rights: The Heart of the Debate 89

6. Football: Only for Viewers with Decoders? 90

7. Competence of the Courts 90

8. The ‘Charleroi’ Case 91

9. Supporter Participation 92

10. Racism and Safety at Football Grounds 92

11. The British Ostrich Position 93

12. Conclusion 93

Chapter 8

The Specificity of Sport: A Concept Under Threat 95

Julien Zylberstein

1. Introduction 95

2. The EU Institutions’ Recognition of the Specificity of Sport 96

2.1. The Autonomy Initially Claimed by the Sports Community in Relation to EU Authorities 96

2.1.1. The Associative Structures that Underpin the Organisation of Sport in Europe 97

2.1.2. The Absence of any Sports Competence Entrusted to the EU 97

3. The Nuanced Application of EU Law to Sport 98

3.1. The Subjection of Sports Regulations with an Economic Character to EC Treaty Provisions 98

3.1.1. Prohibition of Sports Regulations that go against Principles of the EC Treaty 99

3.1.2. The Justification of Certain Regulations that are, in Principle, Incompatible with EU Law 99

3.2. Regulations of ‘Purely Sporting Interest’ Traditionally Outside the Scope of the EC Treaty 100

4. The Specificity of Sport Compromised by a Disproportionate Application of Treaty Competition Rules to Sports Regulations 101

4.1. Regulations of ‘Purely Sporting Interest’ Examined from a Competition Law Angle: The Meca-Medina Ruling 101

4.1.1. A Solution, a priori Obvious, to Remedy the Specious Challenge of Anti-Doping Measures 102

4.1.2. A Judgment Cut Short by a Reductionist Evaluation of the Sport Phenomenon 102

5. Laying Down the Conditions with which to Implement a Specificity that Genuinely takes into Account the Particularities of Sport: An Absolute Necessity 104

5.1. A Symbolic Provision Without the Legal Force of EU Texts 104

5.2. The Commission’s Inability to Outline a Legal Framework Tailored to the Sports Sector 106

Chapter 9

The Specificity of Sport in the CAS Jurisprudence 107

Juan de Dios CRESPO PE´REZ

1. Preamble 107

2. The Specificity of Sport in the CAS Jurisprudence 109

3. A Special Overview on the Case of ‘Granada 74.’ A Spanish Club Changes its Name and Address. The CAS Decision 111

3.1. Backgrounds 112

3.2. Hearing and Decision of the CAS 114

4. Conclusion 116

Annexes

1. European Union 107

2. European Commissions White Paper 107

2.1 Action Plan 145

2.2 Background and Context 151

2.3 Commission Staff Working Document Impact

Assessment 293

2.4 Commission Staff Working Document 337

3. European Parliament 341

4. European Court of Justice: Meca-Medina Case 353

Notes on the Authors

Ivo Belet is a Member of the European Parliament and a Member of the EP Committee on Culture and Education.

Roger Blanpain is Professor at the Universities of Hasselt, KUBrussel, Modena and Tilburg. He is also Honorary President of the International Society for Labour and Social Security Law

Michele Colucci is Deputy Director of the European Academy for Law and Economy (Brussels), Professor of EU law at the European College (Parma), Visiting professor of International Sports Law at the University of Illinois at Urbana Champaign (USA), Tilburg University, ISDE (Madrid), Modena (Italy).

Juan de Dios Crespo Pe´rez (tbc) is a lawyer specialised in Sport law, enrolled at the Valencia’s Bar.

Frank Hendrikx, is Editor of the International Encyclopaedia of Sports Law and Associate Professor, Universities of Antwerp, Brussels, Leuven, Modena, and Tilburg.

Rob Siekmann is Director of the Asser Institute (The Netherlands).

Pedro Velazque, is Deputy Head of the Sport Unit, Directorate General for Education and Culture European Commission.

Melchior Wathelet Professor at the Universite´ Catholique de Louvain.

Julien Zylberstein is the UEFA – EU Co-ordinator. He is also lecturer in EU law at the University of Paris X Nanterre

Introduction

For the first time in the history of the European Union, sport is on the verge of becoming part of a European Treaty.

Article 124 of the EU Reform Treaty, as signed in Lisbon by the IGC on 13 December 2007, states that ‘‘The Union shall contribute to the promotion of European sporting issues while taking account of its specific nature, its structures based on voluntary activity and its social and educational function’’. If the Treaty is ratified, it will finally provide a legal basis for a Community action in the field of sport.

The adoption of the White Paper on Sport on 11 July 2007 already represented an important step towards a comprehensive European sport policy. In this scenario co-operation between the Union, European as well as national sports organisations, and national governments is necessary.

Therefore UEFA and FIFPRO have recently signed a historical Memorandum of Understanding where they claim, once again, their autonomy and the specificity of Sport. This Memorandum seems to pave the way to a collective agreement in the field of football at EU level.

This book collects the paper presented by Academics and representatives of the Sports world at the occasion of the Conference on the ‘‘Future of Sport at the EU level’’ held in December 2007.

The authors examine the legal and political issues related to the latest developments at EU level, and their impact on the Sports Organisations, in order to better understand the future of Sport and to answer to the questions which will inevitably arise from this new situation.

Brussels, 30 January 2008

Roger Blanpain Michele Colucci Frank Hendrickx