ISLJ 2006-3-4 Proef

CONTENTS Editorial ARTICLES The Sale of Rights to Broadcast Sporting The “Independent European Sport Review”: Events under EC Law 3 A Critical Overview 57 Stephen Weatherill Samuli Miettinen Sport in National Sports Acts and Constitutions: Doping, Doctors and Athletes: The Evolving Definition, Ratio and Purposes 28 Legal Paradigm 62 Janwillem Soek John O’Leary and Rodney Wood Revised or New Test Procedures: What CAS Golf: Validity and Enforceability of Exemption Requires 36 Clauses in South African Law 67 Richard H. McLaren Steve Cornelius The CAS Ad Hoc Division at the XX Olympic Study into the Possible Participation of EPFL Winter Games in Turin 47 and G-14 in a Social Dialogue in the European Andreas K. Zagklis Professional Football Sector 69 Robert Siekmann Legal Aspects of the Representation of Football Players in Brazil 53 Luiz Roberto Martins Castro PAPERS The Right to Information and of Short Sports Administration and Good Governance: Reporting/Short Extracts with regard to Theory and Practice in South Africa 100 Sports 87 Brian Brooks Robert Siekmann Fair Play on and off The Field of Play: Settling The Professional Athlete - Employee or Sports Disputes Through the Court of Entrepreneur? 91 Arbitration for Sport 107 Ian Blackshaw Ian Blackshaw Bans on Discrimination and Duties to Differentiate in the German Law of Sports Organizations 96 Klaus Vieweg OPINION European Law: Two Swimmers Drown the • When is a Logo Not a Logo? - Advertising at “Sporting Exception” 118 the Olympics Juan de Dios Crespo • Another First for The Court of Arbitration for Sport • Update - The Meca-Medina Case • English Premier League “Bungs” Inquiry: • Lance Armstrong Innocent of Doping - Will it Prove to be a “Whitewash”? According to an Independent Investigation • Online Horse Betting Ban Upheld in France: French Nationalism Wins? 2006/3-4 1 • WIPO Arbitration and Mediation Centre Goes • No ‘Right of Publicity’ in the Names and from Strength to Strength Statistics of Major League Baseball Players • Winning the War on Doping 119 Ian Blackshaw BOOK REVIEWS The Strict Liability Principle and the Human European Sports Law: a Comparative Analysis of Rights of Athletes in Doping Cases by the European and American Models of Sport by Janwillem Soek 127 Lars Halgreen Sports Law and Policy in the European Union by Foul! By Andrew Jennings 127 Richard Parrish The European Union and Sport: Legal and Policy Documents by Robert Siekmann and Janwillem Soek (editors) 128 DOCUMENTS Publication of CAS Awards (per March 2006) 131 Case Digest – Sports Business International, February/October 2005 140 ❖ EDITORIAL This issue contains the results of two studies that were commissioned Edge Hill University, United Kingdom, in the framework of the 2006 to the ASSER International Sports Law Centre recently. In Septem- European Year of Workers’ Mobility Pilot Projects (Directorate- ber/November 2005 Mr Janwillem Soek researched national Sport General of Employment, Social Affairs and Equal Opportunities) and Acts and provisions on Sport in Constitutions worldwide, in particu- regarding the invitation to tender for a study on the training of sports- lar focusing on the definition of “sport” and on objectives of the ratio men and sportswomen in Europe (Directorate-General of Education legis underlying the legislation. This study was commissioned by the and Culture). Netherlands Ministry for Sport due to the fact that the government This issue of ISLJ also contains two contributions which are pre- were considering the introduction of a Dutch Sport Act and wished publications from books being produced by the Centre which will be to examine whether this would be instrumental for the country, not- published by T.M.C. Asser Press at the beginning of next year. withstanding the fact that the Netherlands traditionally belongs to the Professor Weatherill’s contribution is the introductory chapter to a group of Western-European countries whose administrations are book on the selling of broadcasting rights in Europe. Luiz Roberto “non-interventionist” in relation to sport. In May 2006 Robert Siek- Martins Castro’s contribution is the chapter on Brazil in Player’s mann finalized a study on the possible participation - in accordance Agents Worldwide: Legal Aspects. In the first months of 2007, The with EU criteria and in addition to FIFPro - of the European Council of Europe and Sport: Basic Documents will also appear in print. Association of Professional Leagues (EPFL) and G-14, which has the It is the fifth publication in the series of Asser volumes of basic docu- official status of a European Economic Interest Grouping, in a future ments on international sports law (Statutes and Constitutions, Social Dialogue in the European professional football sector. Doping Rules and Regulations, Arbitral and Disciplinary Rules and In the field of applied research, proposals were submitted to the Regulations as well as The European Union and Sport). European Commission this year on “Good Governance in Sport: Preventing and Combating Malpractices of Sport”, under the AGIS Finally, the ISLJ’s contributing editor Ian Blackshaw is congratulated Programme 2006 of the Directorate-General of Justice, Freedom and for having been appointed Visiting Professor in International Sports Security, on “Removing Obstacles to the Mobility of Professional Law this summer at Anglia Ruskin University at their Cambridge and Sportsmen in the EU post Bosman: Recommendations on the Chelmsford campuses. Application of Free Movement Laws to Sport”, in cooperation with The Editors ❖ 2 2006/3-4 The Sale of Rights to Broadcast ARTICLES Sporting Events under EC Law by Stephen Weatherill* 1 Introduction - the constitutional context with the uncritical EU family - most of all, it is national Parliaments Although it may be intuitively appealing to assume that an integrat- that are invested with the responsibility to stop creep according to a ed market for Europe inevitably brings with it an integrated regulato- new ex ante monitoring system. 3 ry strategy underpinning that market, the EC Treaty does not provide Pending such reforms, we must make do with the current system. for this. Article 5(1) EC declares that ‘The Community shall act with- And currently the principal motor of competence creep is the ambi- in the limits of the powers conferred upon it by this Treaty and of the guity and functional breadth of the relevant Treaty provisions, under- objectives assigned to it therein.’ This is commonly referred to as the pinned by a perceived readiness practised by the EU’s institutions to principle of ‘attributed competence’. It is constitutionally fundamen- exploit textual ambiguity in order to extend their sphere of influence tal. Accordingly the EC possesses no general regulatory competence beyond that foreseen by the Treaty. The argument, then, is that there and it cannot ‘self-authorise’ an increase in its own competence. It is a structural weakness in the EC Treaty which tends to promote ris- may act only in the areas in which the Member States have granted it ing centralization at the expense of local autonomy. 4 a mandate. Extension of the grant rests with the Member States act- As far as legal ambiguity is concerned, the principal issue is the ing at times of periodic Treaty revision. poor way in which Article 5(1)’s principle of attribution is put into The principle, then, is that the EC possesses only limited powers. operation in the Treaty. The Treaty’s general modus operandi is not to The practice, however, is that those limits are rather loosely drawn and declare particular sectors off-limits the EC nor to reserve particular tend to be stretched. The EC has a sphere of influence that extends functions to the Member States. Instead Article 5(1) EC is made spe- considerably further than one may initially appreciate on an inspec- cific in its application to particular sectoral competences by a chaotic tion of the formal text of the Treaty. This troubling trend is vividly pattern of provisions granting legislative authority to the EC scattered captured by the catchphrase competence creep.1 It is troubling because throughout the Treaty. These provisions vary in scope and intensity EU Treaty ratification is conducted in each Member State according and they vary in their impact on residual national regulatory autono- to local constitutional requirements but it is performed everywhere on my. They are the confused and confusing consequence of incremental the basis that only a limited grant of power is being made to European Treaty revision. It is disturbingly difficult to set out clearly an account level. Lawmaking excess at EC level represents a constitutionally ille- of the nature of EC competence and its effect on State competence 5. gitimate shifting of power to EU level which tends to weaken such This is the fertile soil of competence creep: it is hard to marshal oper- controls over executive action as exist within national political cul- ationally useful constitutional arguments against EC intervention. tures. So Article 5(1) does not state a technical rule. It states a rule that This is most of all true of two Treaty provisions in particular: Articles is fundamental to the chosen distribution of functions to different 95 and 308 EC. These are not sector-specific competences of the type levels of democratic governance in Europe. Its violation is likely to typically added in recent bouts of Treaty revision. 6 They instead induce protest from domestic constituencies such as national envisage a broad competence to act in pursuit of the Community’s Parliaments and constitutional courts, and, perhaps in the long term objectives. The limits that are imposed - in short, a tie to market-mak- most alarming of all, citizens are likely to suffer alienation from the ing under Article 95 and a tie to the EC’s objectives under Article 308 complexity that flows from incremental drift in the growth of multi- - are limits that lack precision.

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