Academic journal article The International Sports Law Journal

The Societal Role of Sport

Academic journal article The International Sports Law Journal

The Societal Role of Sport

Article excerpt

Introduction

I would like to thank the organisers, and in particular Dr Richard Parrish of Edge Hill University, for this opportunity. My remarks follow the established pattern of this workshop by opening with some general observations on the White Paper and then moving towards the specific remit of my commentary: that of the societal role of sport. My comments will focus on the social and cultural aspects of recreational sport rather than the economic and legal aspects of elite, professional sport. The emphasis will be on the manner in which the White Paper might, in the true spirit of Pierre de Coubertin, facilitate greater levels of active participation in sport thus reversing recent trends, which are indicating a regrettable tendency towards the "passive consumption" of sport.

1. General Remarks on the White Paper on Sport

Commenting on "The Helsinki Report on Sport", (1) Professor Stephen Weatherill remarked that it represented an important attempt by the EC Commission to step beyond "accidents of litigation" and instead shape a framework for understanding how, why and, most importantly, WHEN, EC law applied to sport. (2) In other words, a core aim of the Helsinki Report was to help clarify EC law's application to sport. In that, Weatherill declared, the Report was not unsuccessful, particularly in its attempt to separate out the categories of sporting practice that are outside the reach of EC law (such as the purely sporting rules) from those which are within the scope (though not necessarily incompatible with) EC law. (3) I agree that the Helsinki Report was a helpful starting point. The Helsinki Report was also a considered one, as illustrated by the observation that the fundamental freedoms guaranteed by the EC Treaty do not generally conflict with the regulatory measures of sports associations, provided that those internal measures can be objectively justified, and are seen in operation to be non-discriminatory, necessary and proportionate. (4)

From that observation, it can be implied that where a "sporting" breach of EC law arises there remains, on a case-by-case basis, the need to conduct a detailed examination of the extent to which the sporting practices at issue are supported and underwritten by the principles of objective justification, non-discrimination, necessity and proportionality.

It is argued that the major criticism of the White Paper on Sport is that it is little more than a restatement of the Helsinki Report. In other words, can it be said that the debate on EC law's application to sport, or more specifically, the Commission's analysis of that debate, has evolved to any recognisable degree since 1999? To be fair to the Commission, the Staff Working Document, which accompanies the White Paper, provides a welcome and thorough collation of the extant legal analysis on the applicability of EC law to sport. (5) Nevertheless, in a broader, policy sense, it appears that EU sports law remains overly dependent on "accidents of litigation", as evidenced most recently by Meca Medina and Majcen v Commission. (6)

More specifically, the Commission's observations in the White Paper as to the "specificity of sport" are disappointingly vague and, at times, rather glib. For instance, it is stated at section 4.1:

"The case law of the European court and the decisions of the European Commission show that the specificity of sport has been recognised and taken into account. They also provide guidance on how EU law applies to sport. In line with established case law, the specificity of sport will continue to be recognised, but it cannot be construed so as to justify a general exemption from the application of EU law." (7)

This paragraph provokes three points of discussion. Firstly, the view that ECJ case law and decisions of the Commission provide guidance on how EU law applies to sport is a somewhat ambitious one. …

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