Sports Law and Policy in the European Union
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EPRU Sports law and policy in the European Union Sports law and policy in the European European Series Sports law and policy in the European Union Policy Research Unit Series The commercialisation of sport in Europe raises important questions concerning the most appropriate method of regulating sporting activity. The development of the European Union and the internationalisation of sporting competition has added an international dimension to this debate. Yet sport is not simply a business to be Sports law regulated in the same way as any other industry. It is also a social and cultural activity. Can regulation at EU level reconcile this tension? Adopting a distinctive legal and political analysis, this book argues that the EU is receptive to the sports sectors claims for special treatment before the law. The book investigates the birth of EU sports law and policy by examining: and policy • the Bosman ruling and other significant European Court of Justice decisions; • the relationship between sport and EU competition law; in the • the possibility of sport being exempt from EU law; • the relationship between sport and the EU Treaty; • the development of a EU sports policy. European This book is essential for those interested in the major issues facing sport and its relationship with the EU. It is essential for those interested in sports law, the politics of sport and EU integration. It offers important insights into these debates and raises key questions concerning the appropriate theoretical tools for analysing Union European integration. Richard Parrish is a lecturer in Law at Edge Hill College. Parrish ISBN 0 7190 6607 7 Richard Parrish 9 780719 066078 Sports law and policy in the European Union European Policy Research Unit Series Series Editors: Simon Bulmer, Peter Humphreys and Mick Moran The European Policy Research Unit Series aims to provide advanced textbooks and thematic studies of key public policy issues in Europe. They concentrate, in par- ticular, on comparing patterns of national policy content, but pay due attention to the European Union dimension. The thematic studies are guided by the character of the policy issue under examination. The European Policy Research Unit (EPRU) was set up in 1989 within the University of Manchester’s Department of Government to promote research on European politics and public policy. The series is part of EPRU’s effort to facilitate intellectual exchange and substantive debate on the key policy issues confronting the European states and the European Union. Titles in the series also include: The governance of the Single European Market Kenneth Armstrong and Simon Bulmer The politics of health in Europe Richard Freeman Immigration and European integration Andrew Geddes Mass media and media policy in Western Europe Peter Humphreys The regions and the new Europe Martin Rhodes (ed.) The rules of integration Gerald Schneider and Mark Aspinwall Political economy of financial integration in Europe Jonathan Story and Ingo Walter Fifteen into one? Wolfgang Wessels, Andreas Maurer and Jürgen Mittag Extending European cooperation Alasdair R. Young Regulatory politics in the enlarging European Union Alasdair Young and Helen Wallace Sports law and policy in the European Union Richard Parrish Manchester University Press Manchester and New York distributed exclusively in the USA by Palgrave Copyright © Richard Parrish 2003 The right of Richard Parrish to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Oxford Road, Manchester M13 9NR, UK and Room 400, 175 Fifth Avenue, New York, NY 10010, USA www.manchesteruniversitypress.co.uk Distributed exclusively in the USA by Palgrave, 175 Fifth Avenue, New York, NY 10010, USA Distributed exclusively in Canada by UBC Press, University of British Columbia, 2029 West Mall Vancouver, BC, Canada V6T 1Z2 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 0 7190 6606 9 hardback ISBN 0 7190 6607 7 paperback First published 2003 11 10 09 08 07 06 05 04 03 10 9 8 7 6 5 4 3 2 1 Typeset in Sabon by Servis Filmsetting Ltd., Manchester Printed in Great Britain by Biddles Ltd, Guildford and King’s Lynn For Lowell Contents Acknowledgements page viii Introduction 1 1 The birth of EU sports law and policy 5 2 Towards a theory of EU sports law and policy 23 3 The sports policy subsystem 61 4 Sport and the European Court of Justice 80 5 Sport and EU competition law 109 6 Reconciling sport and law 160 7 The future of EU sports law and policy 201 Appendix 1: The Bosman ruling 222 Appendix 2: The Helsinki report on sport 243 References 251 Tables of statutes, cases, decisions and reports 259 Index 267 Acknowledgements This book is based partly on a doctoral thesis completed in 2001 at the University of Manchester. In writing ‘The Path to a European Union Sports Policy’ I received valuable assistance from Professor Simon Bulmer and Professor Peter Humphreys at the University of Manchester and Professor Claudio Radaelli at the University of Bradford. Of course, the views expressed in this text (and any errors) are my own. In addition, I owe special thanks to past and present sports law researchers at the Anglia Polytechnic University. In particular Simon Gardiner and John O’Leary have frequently provided me with an invaluable platform with which to share my ideas. I am also grateful to those members of the EU who shared their thoughts on this matter with me and allowed for the re-production of key documentation. The final word is of course reserved for my family. Without the support of Berenice this book would never have been completed. Without the inter- ventions of my adorable son Lowell, it would have been completed much sooner! I don’t regret a minute. Happy first birthday son. Introduction Sports Law and Policy in the European Union is a deliberately provocative title. It is not widely accepted that a discrete body of sports law has emerged or is emerging within the European Union (EU) or within national jurisdic- tions. Furthermore, given that the EU has no legal competence to develop a sports policy, one might ask (as I was by an eminent ‘sport and the law’ lawyer), ‘what the bloody hell has the Common Market got to do with sport?’ Browsing through the list of EU activities contained in Article 3 of the EU’s Treaty, it is clear that sport has no place in the Treaty. Nevertheless, Article 3 does state that the EU is to establish an area where goods, persons, services and capital can freely circulate and where competition is not dis- torted. As an activity of undoubted commercial significance, sports bodies must therefore ensure that their activities do not contradict these Treaty pro- visions. As the European Court of Justice’s (ECJ’s) ruling in Bosman demon- strated, EU law can have a profound impact on sport. Although this brief explanation does not justify the label ‘EU sports law’, it does explain why there is a relationship between sport and EU law. The EU’s policy involvement in sport extends beyond legal regulation. Article 3 also expresses the EU’s desire to expand into more social arenas. Since the 1984 Fontainebleau Summit, the EU has attempted to extend European integration beyond the economic field by establishing a ‘people’s Europe’. In order to do so the EU intends to use sport to implement a range of social, cultural and educational policy objectives outlined in Article 3. However, the excessive commercialisation of sport combined with legal reg- ulation at EU level threatens to undermine these political objectives. Without more co-ordinated action in the field of sport, EU policy towards sport risks being pulled apart by competing policy tensions. Traditionally, the sports sector has developed rules which have attempted to maintain a competitive balance between participants. Given the extent of commercialisation in European sport, the maintenance of these rules is con- sidered by many as essential. However,many of these alleged pro-competitive rules have been regarded as anti-competitive by the EU. Again, the policy 2 Introduction tension within the EU is evident. On the one hand, the EU has a regulatory policy interest in sport as a result of its commitment to protect the legal foun- dations of the Single Market. On the other, the EU harbours political policy aspirations for sport, particularly in the field of the people’s Europe project. The research agenda concentrates on this policy tension. In particular, this tension has contributed to the development of a more co-ordinated EU sports policy in which these tensions can be reconciled. The glue binding this policy is not however derived from primary or secondary legislation but rather case law. In short, the defining characteristic of EU sports policy is the construction of a discrete area of EU sports law. EU sports law extends beyond the mere application of law to sport, to the construction of a legal approach for dealing with sports disputes which allows both the EU’s regu- latory and political policy objectives for sport to co-exist within the EU sports policy framework. This research agenda is particularly fascinating because the twin concepts of EU sports law and EU sports policy have emerged in the absence of a Treaty base for sport. They have therefore devel- oped without the engine of legislation. For lawyers and political scientists alike, this poses many interesting questions about the dynamics behind policy change in the EU. The emergence of a co-ordinated EU sports policy held together by a dis- crete area of sports law is a new development in the EU.