Academic journal article The International Sports Law Journal

The 'Independent European Sport Review': A Critical Overview

Academic journal article The International Sports Law Journal

The 'Independent European Sport Review': A Critical Overview

Article excerpt

In 2005 the UK Presidency of the European Union initiated a review of European football with a mandate 'to produce a report, independent of the Football Authorities, but commissioned by UEFA, on how the European football authorities, EU institutions and member states can best implement the Nice declaration on European and national level[s].' (1) This illustrates two prominent features of the Review: its strong emphasis on the interests of UEFA as the collective interests of stakeholders and the focus of the report on football, rather than sport in general. The 'Terms of Reference have been drafted in consultation with UEFA and... led by UEFA....' It might seem unfair to generalise the Review as commissioned by UEFA, written by UEFA about UEFA since the sports ministers of some of the EU Member States were 'part of the governance of the report' (2) and a public consultation process was undertaken prior to publication. However, in particular consumers and the greater public whose interests the EC Treaty principles seek to safeguard did not feature prominently within the reasoning of the final document despite having been invited to take part in the consultation process. It should be recalled that although some representatives of the Commission are thanked for their interest in the Review, (3) its terms of reference were set by the institutionally distinct Presidency of the European Union rather than the Commission as the guardian of the Treaties.

Sport and Economic Activity

The UEFA-commissioned Review is founded in part on an exploration of the 'specificity of sport' thesis, according to which that sports governing body embodies features that render its otherwise controversial internal market behaviour justifiable. It will be recalled that there is a developed legal distinction between sport as economic activity and that which is not economic. Where no appreciable economic impact occurs, actions do not fall foul of internal market fundamental freedoms. Provisions that restrict trade must be proportional, that is, limited to measures that are necessary to achieve recognized non-market objectives. Competition law employs similar thresholds of economic relevance. Thus, where there is no appreciable economic impact, the specificity of sport not only makes policy sense but is already a legal reality. Rules that are not directly linked to explicit economic objectives in so far as they do not entail a direct transfer of financial benefit may nevertheless serve implicit economic purposes. Anti-doping rules are permissible not because as a feature of sport they enjoy general exemption, but because the internal market rules prohibit economic considerations within which the doping rules as 'purely sporting interest[s]' are not considered to fall. (4) The Helsinki Report recognised that on the whole, fundamental freedoms do not conflict with regulatory measures of sports associations because the sports associations' measures are objectively justifiable, non-discriminatory, necessary and proportional as required for other fundamentally non-economically driven objectives under the market freedoms. (5) The 2000 Nice Declaration on sport, a non-legally binding Presidency Conclusion, sought to remedy the lack of a general European competence to regulate sport. Whilst necessarily recognising the primacy of Community legislation, it noted the sporting organisations' autonomy to '...organise and promote their particular sports, particularly as regards the specifically sporting rules applicable and the make-up of national teams....' (6) The Declaration stated '...that sports federations have a central role in ensuring the essential solidarity between the various levels of sporting practice, from recreational to top-level sport...' (7) and that the social functions of sport somehow '...provide the basis for the recognition of their [exclusive] competence in organizing competitions'. (8) The declaration also implored sports governing bodies to '. …

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