Library Briefing Library of the European Parliament 18/02/2010
The EU and Sport
"Mens sana in corpore sano": sport helps to In this briefing: keep "a healthy mind in a healthy body". Context Sport is very popular among EU citizens, EU framework not only as an activity, but also as entertainment. However, the growing Major case law commercialisation of sport has challenged European Parliament views its social, educational and cultural dimensions. A focus on some issues for football Until 1st December 2009, sport was not mentioned in the Treaties. The Commu- Main references nity's involvement in sport has thus been based on existing policies (e.g. audiovisual UEFA: Union of European Football Associations or health). Moreover, the case law of the FIFA: Fédération Internationale de Football Association Court of Justice (e.g. Bosman) has played a major role in clarifying the impact on sport Context of the provisions on both the free move- "What I know most surely about morality ment of workers and on competition. and the duty of man I owe to sport". The Lisbon Treaty gives explicit powers to Albert Camus' words, Nobel Prize in Litera- the EU to carry out actions to support, ture, remind us that sport transmits values. coordinate or supplement the actions of Sport has an important recreational, social, the Member States in the field of sport. educational and cultural role. Sport can give The European Parliament (EP) has dealt people a sense of belonging to a group. with a broad range of sport-related issues. In 2006, 70 million people in the EU The EP supports the UEFA "Home-Grown belonged to one of the 700,000 sport clubs. Players Rule", but not the FIFA "6+5 Rule". The overwhelming majority of athletes are amateurs. In 2004, 40% of EU citizens practised sports at least once a week. In Scandinavia, citizens seem to be fonder of sport than in Southern Member States (MS). Sport in a broad sense generated a value- added of €407 billion in 2004 (3.7% of EU GDP). The sector employed 15 million people (5.4% of the labour force). The commercial dimension of sport has increased with the rise in income provided EP President Jerzy Buzek and UEFA President Michel Platini. 1 November 2009. Source: © European Parliament. by television rights .
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Library Briefing The EU and Sport
For historical and cultural reasons, the sport may nevertheless have significant effects on sector is self-organised and self-regulated by policy and legal developments. independent governing bodies. Main initiatives The European Parliament (EP) has dealt with The first Community document recognising a wide variety of sport-related issues. The the importance of sport is the "Adonino re- new EU competence on sport introduced by port", endorsed by the Council in 1985. the Lisbon Treaty will give the EP a stronger Campaigns were launched to increase the role in this field. feeling of belonging to the Community through sport. EU framework The Declaration on sport annexed to the Sport in the Treaties Treaty of Amsterdam (1997) recognised Until the Lisbon Treaty, sport was not the role of sport in forging identity and mentioned in the Treaties. Therefore, no bringing people together. legislation with the explicit aim of regulating In 1999, the Commission adopted a Report sport could be adopted. with a view to safeguarding current sports Until the end of the 80s, Community structures and maintaining the social activities have been limited to the funding function of sport ("Helsinki Report"). The of international sporting events. Later on, Commission defended a European Model of the Community's sport policy agenda has Sport (figure 1), at a time when the growing experienced considerable expansion2. commercialisation of sport risked wea- kening its social and educational dimen- The Community's involvement in sport has sions. This report was the first attempt to been based on existing programmes and coordinate the Community's action in the policies3. A "soft law" approach has been field of sport. followed, i.e. the adoption of non-binding measures, such as Treaty Declarations, that Following this report, the European Council adopted in Nice (2000) a Declaration Figure 1: The European Model of Sport on the specific characteristics of sport and its social function in Europe. For the Council, the social, educational and cultural dimensions of sport should feature more prominently in national and Community policies. The Council recognised that sporting organisations and MS have a primary responsibility in dealing with sport issues. Priority themes for informal EU Ministers discussions were also defined in 2004 (doping, health, education, social function, volun- teering or economy). This still on- going "Rolling Agenda for Sport" is a joint initiative of the Commission and Data source: The European Model of Sport, European Commission, 1998.
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Library Briefing The EU and Sport
the Council. Furthermore, 2004 was be presented to the Council and the EP designated European Year of Education in autumn 2010. through Sport. Preparatory actions will be carried out in The White Paper on Sport (2007) is the 2010 and 2011. The first limited EU Sport basis for nearly all current EU sport-related Programme could come into force in activities. It covers three areas: the societal 2012 or 2013. role of sport, its economic dimension and its organisation. An Action Plan ("Pierre de Sport in the Lisbon Treaty – Art. 165 TFEU Coubertin") details future actions. According 1. ... The Union shall contribute to the promotion to the Commission, 80% of the 53 actions of European sporting issues, while taking are completed or underway. For the first account of the specific nature of sport, its time, the Commission dealt with sport in a structures based on voluntary activity and its comprehensive manner. social and educational function. A structured dialogue is also organised with 2. Union action shall be aimed at ... developing the European dimension in sport, by promoting sport organisations. fairness and openness in sporting competitions Indirect effects on sport of EU policies and cooperation between bodies responsible for Sport is indirectly affected by a number of sports, and by protecting the physical and moral EU policies: audiovisual (retransmission of integrity of sportsmen and sportswomen, events), culture, education, or public health. especially the youngest ... Moreover, sport is directly impacted by 3. The Union and the MS shall foster cooperation provisions in the area of free movement of with third countries and the competent workers or by competition policy. international organisations ... in particular the Council of Europe. The Lisbon Treaty The Lisbon Treaty provides a legal basis for 4. In order to contribute to the achievement of the objectives referred to in this Article ... the EP EU action in the field of sport. The EU and the Council, acting in accordance with the acquires a "soft competence" for sport: it can ordinary legislative procedure ... shall adopt carry out actions to support, coordinate or incentive measures, excluding any harmoni- supplement the actions of the MS (Art.6 sation of the laws and regulations of the MS. TFEU4). Competence rests primarily with the MS and the sporting federations. Formal Major case law5 meetings of EU Ministers can be held, and an EU Sport Programme becomes feasible. The case law of the Court of Justice of the EU Calendar (ECJ) has clarified the application of EU law to sport. First half of 2010: the Commission will carry out consultations on the ways to Walrave (1974, C-36/74) implement the new sport provisions of The ECJ ruled that sport is "subject to the Lisbon Treaty (including an EU Community law only in so far as it Sports forum in April). constitutes an economic activity". Mid-2010: the Commission could adopt a Therefore, the composition of national sport Decision for an EU Sport Programme and teams is not affected by the EC Treaty's a Communication on the impact of the prohibition of discrimination based on Lisbon Treaty on sport. The latter could nationality. EU law does not apply to rules
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Library Briefing The EU and Sport
that are of pure "sporting interest". This European Parliament views approach was also followed in Donà (1976, C-13/76) and Bosman (see below). In its Resolution on Women and Sport Bosman (1995, C-415-93) (2003), the EP asked that the gender This case concerns the application of the dimension of sport be taken into account. principle of free movement for sportsmen. The EP also condemned doping (2005), as contrary to the values of sport. Moreover, Firstly, the ECJ prohibited any rule that limits the EP underlined the role of sport in the number of professional players in a team attaining development goals (2005). In its who are nationals of another MS. Secondly, Declaration on racism (2006) the EP the ECJ prohibited fees for the transfers of proposed imposing sanctions on football players on the expiry of their contract. These associations and clubs when serious racist fees had limited the implementation of the offences are committed by supporters or free movement principle. players. The EP also condemned forced This landmark case law has had conside- prostitution in the context of world sports rable repercussions for sport, for instance on events (2006). In 2007, the EP stressed the the composition of football teams or on the educational values that sport transmits. 6 financing of sport . In its Resolution on the Future of Lehtonen (2000, Case C-176/96) Professional Football in Europe (2007), the EP expressed its attachment to the The ECJ recognised that the setting of European Football Model. This model deadlines for transfers of players may be implies close links between amateur and justified, even if it could limit freedom of professional football. The EP recognised that movements. some negative development need to be Meca Medina (2006, C-519/04) tackled (e.g. excessive commercialisation or This judgment concerns the application of reduction of the competitive balance EU competition law to sporting rules (in this between teams). Moreover, the improve- case, anti-doping rules). ment of sport authorities' governance would reduce the recourse to the Court of Justice. According to the ECJ, the fact that a rule is The EP supports the UEFA Club Licensing "purely sporting in nature" does not remove System7. This system is aimed at ensuring a the athlete or the sports association from level playing field and contributes to the the scope of EU competition law. This means clubs' financial stability. that the exemption of a rule from the Treaty provisions on free movement does not In its Resolution on the White Paper on remove this rule from the scope of EU Sport (2008), the EP welcomed the official competition law. recognition of sport in the Lisbon Treaty. This will enable the setting up of a Consequently, the Commission assesses the consistent EU policy in this area. The EP also compliance of rules on the organisation of pointed out that most sporting issues can be sport with EU competition law on a case by addressed through self-regulation of the case basis, following the ECJ's approach. sport sector, provided that EU law is In Meca Medina, the ECJ ruled that the anti- respected. The autonomy, specificity and doping rules did not infringe EU com- self-regulation of sports organisations must petition law. be respected.
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Library Briefing The EU and Sport
Moreover, the Commission should increase considers that the risk that indirect legal certainty by drafting guidelines on the discrimination on the basis of nationality applicability of EU law to sport. The EP also occurs cannot be discarded. This is because requested a special budget line for players attending training centres tend to preparatory actions in the field of sport, to be nationals from that MS. Therefore, the prepare future EU actions (see box). Commission will review the practical consequences of this rule in 2012. Preparatory actions in the field of sport In 2007, the EP also clearly supported this 2009 budget: €6,000,000 rule in its Resolution on the Future of €4,000,000 for networks and good practices. 18 Professional Football in Europe. transnational projects have been selected. They will be co-financed by the EU (80% maximum) The proposed FIFA's "6+5 Rule" and implemented before the end of March 2011. FIFA puts forward the "6+5 Rule" as an Health, education, sport for the disabled and alternative to the HGPR. FIFA wants to tackle gender equality were the four areas concerned. the clubs' loss of national identity (figure 2), the growing inequalities between clubs and €1,000,000 for studies, surveys or conference; to restore a healthy unpredictability to the €1,000,000 for the Mediterranean Games results of club competitions. (Pescara, Italy, June 2009). Figure 2: Proportion of national players in first 2010 budget: €3,000,000 division professional teams (football), 2008.
A focus on some issues for football 45% England 51% UEFA's Home-Grown Players Rule (HGPR) Portugal 53% UEFA considers that since the Bosman Germany 61% judgment, football has faced a lack of Italy 65% investment in the training of players. Some Spain of the richest clubs prefer hiring players 67% France from other clubs rather than training them. 82% Finland The rule on Home-Grown Players aims at tackling these issues. Data source: Study on training of young sportsmen/women This rule was adopted by UEFA Congress in in Europe, Extension Part I, Home Grown Player Rule, 2008. April 2005. It has been in full imple- In May 2008, the FIFA Congress adopted a mentation since the 2008-2009 season. resolution supporting this rule. Its objective Clubs participating in the Champions is to implement it gradually: "4+7" in 2010- 8 League and the UEFA Europa League must 2011, "5+6" in 2011-2012 and "6+5" in 2012- have at least eight "home-grown players" 2013. out of the 25 players eligible to be on the match sheet9. According to this rule, at the beginning of each match, no more than five foreign In May 2008, the Commission endorsed this players could start the match for any team. rule, as it seems to comply with the principle The other six would be local players, i.e. of free movement of workers. The objectives eligible to play for the national team of the of this rule seem to be legitimate and of country of the club. There is no restriction general interest. However, the Commission on substitutes: the three substitutes allowed
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Library Briefing The EU and Sport
may be foreigners. Moreover, there is no clubs whose turnover exceeds a given restriction on the number of non-local threshold); players under contract with the club. Guidance on salaries and transfer However, in May 2008, the Commission spending; made clear that this rule was Indicators concerning the sustainability unacceptable10. It would be against the right of the levels of debts; to free movement and the principle of non- The obligation for clubs to honour their discrimination. The Commission would take commitments. to Court any MS that would allow the UEFA is currently finalising the measures. application of this rule. They will be incorporated into the UEFA Furthermore, in its Resolution on the White Club Licensing Rules. After a transitional Paper on Sport (May 2008), the EP called on period of three years, they are planned to be MS and sports association not to introduce fully applicable from the 2012-2013 season. new rules that create direct discrimination on Compliance with the rules will be assessed the base of nationality (such as the "6+5 Rule"). by an independent entity, the Club Financial FIFA, however, did not abandon this Control Panel. This Panel is chaired by MEP project11. In June 2008, UEFA and FIFA Dehaene. Presidents met the EP President to discuss it. The European Commission welcomed the FIFA President Blatter also pleaded for this approval of Financial Fair Play. It represents rule in the EP Culture and Education an example of good governance in football. Committee in October 2008. In November 2009, EP President Jerzy Buzek At a Conference held in October 2009, FIFA's congratulated UEFA on its proposals on President suggested that the number "6" Financial Fair Play, which is "a good policy". could include players (irrespective of their Transfers of players nationality) who have been registered on a The Commission recognised the right of continuous basis since the age of 12 for sports authorities to set rules for player clubs belonging to the association in which transfers. Without transfer rules, the the club plays. During this event, MEP integrity of sporting competitions could be Schmitt, EP Vice-President, accepted the role undermined by clubs recruiting players of "6+5 ambassador" to the EP. during the season to prevail over their Financial Fair Play competitors. However, rules on the transfer The UEFA's Executive Committee approved of players must respect EU law. the Financial Fair Play concept in September In 2001, FIFA, in agreement with UEFA, 2009. It aims at limiting the financial excesses reformed the rules on international football observed in European football. Financial Fair transfers12. This reform followed a case Play also aims at enhancing financial fairness concerning alleged infringements of EU in competitions, the long-term stability of competition law. clubs, and competitive balance. In 2008, the EP supported stricter Measures aimed at implementing Financial application of the FIFA rules banning Fair Play will include: transfers of players aged under 16. The obligation to balance their books or Moreover, for the EP, financial transparency break even, over a period of time (for is necessary in the context of transfers.
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Library Briefing The EU and Sport
Main references White Paper on Sport, European Commission, COM(2007)391. Independent European Sport Review, Arnaut, Further reading 2006. Sport and the Council of Europe The EU and Sport: Background and Context, European Commission, SEC(2007)935, 2007.
The Future of Sports Law in the EU, Blanpain et al., Kluwer Law International, 2008. The Sporting Exception in EU law, Parrish and Miettinen, TMC Asser Press, 2008.
Disclaimer
This Briefing is a short overview of the subject, and is not intended to take the place of more complex original research. The document has been prepared in response to a specific request and does not in any way reflect the opinion or position of the author or of the EP.
Endnotes
1 An increasing part of the economic value of sports is linked to intellectual property rights (i.e. trademarks or media rights). For instance, media rights from UEFA EUROTM increased by 46% between 2004 and 2008, reaching €800 million. 2 The Future EU Sports Policy: Hollow Words on Hallowed Ground? A. Vermeersch, The Int. Sports Law Journal, 3/4, 3-7, 2009. 3 For instance the European Regional Development Fund and the European Social Fund can co-finance sport-related infrastructure or projects (e.g. in the field of social inclusion: projects for reintegration through sport). 4 Treaty on the Functioning of the EU. 5 For a detailed list of case law on sport, see The EU and Sport: Background and Context, SEC(2007)935, 2007, pages 93-99. 6 Sport increasingly depends on revenues derived from sponsorship and other commercial activities. For more details on this issue see The European Model of Sport, Working Paper of the European Commission, 1998. 7 The Club Licensing System was introduced in 2004-2005 football season. Each club must fulfil quality standards to be admitted to UEFA's club competitions. These standards are divided into five categories (sporting, infrastructure, personnel, legal and financial). They are based on the key principles of transparency, integrity, credibility and capability. Their goal is to improve the credibility of clubs and to improve transparency and governance by clubs. For 2009-2010, 63% of the 730 top- division clubs were licensed. Six clubs that qualified for UEFA's club competitions had their applications rejected. 8 See Regulations of the UEFA Champions League for 2009-2010 and Regulations of the UEFA Europa League 2009-2010. 9 Home-grown players are "players who, regardless of their nationality, have been trained by their club or by another club in the same national association for at least three years between the age of 15 and 21." 10 The independent study on the Home-Grown Player Rule, carried out in the framework of the Pierre de Coubertin Action Plan, underlines that the "6+5 Rule" breaches the Treaty, as it introduces a direct discrimination based on nationality. 11 In February 2009, the Institute for European Affairs released a review of the legal situation, requested by FIFA. It concluded that there was no conflict between the "6+5 rule" and EU law. It could, at most, constitute "indirect discrimination". 12 This reform was based on a series of principles, for instance: for players under 23, a system of training compensation to encourage the training effort of clubs, international transfers of players under 18 should be subject to conditions, minimum and maximum duration of contracts, etc.
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