Academic journal article The International Sports Law Journal

Models of Sport Governance in the European Union: The Relationship between State and Sport Authorities

Academic journal article The International Sports Law Journal

Models of Sport Governance in the European Union: The Relationship between State and Sport Authorities

Article excerpt

1. Introduction

In 2004 Andre-Noel Chaker published a study on "Good governance in Sport - A European survey" which was commissioned by the Council of Europe. (1) The Council of Europe was the first international organization established in Europe after the Second World War. With 46 Member States, the Council of Europe currently represents the image of a "wider Europe". Its main objective is to strengthen democracy, human rights and the rule of law. The Council of Europe was the first international intergovernmental organization to take initiatives, to establish legal instruments, and to offer an institutional framework for the development of sport at European level. (2) The study covers the sport-related legislation and governance regulations of twenty European countries. The aim of this study was to measure and assess sport governance in each of the participating countries. For the purposes of this study the term "sport governance" had been given a specific meaning. Sport governance is the creation of effective net-works of sport-related state agencies, sports non-governmental organisations and processes that operate jointly and independently under specific legislation, policies and private regulations to promote ethical, democratic, efficient and accountable sports activities. The legislative framework of the countries under review was analysed according to whether they have references to sport in their constitutions and whether they have a specific law on sport at national level. There are two distinctive approaches to sports legislation in Europe. Countries have adopted an "interventionist" or a "non-interventionist" sports legislation model. An interventionist sports-legislation model is one that contains specific legislation on the structure and mandate of a significant part of the national sports movement. All other sports-legislation models are deemed to be non-interventionist.

In December 2009, the European Commission (Employment, social affairs and equal opportunities DG) commissioned the T.M.C. Asser Instituut (ASSER International Sports Law Centre) to undertake a study on "The Role of Member States in the Organising and Functioning of Professional Sport Activities". The background of the Study is as follows.

Article 39 of the European Community Treaty (EC Treaty) establishes the free movement of workers in what became the European Union. It prohibits all discrimination on the basis of nationality. The European Court of Justice has confirmed that professional and semi-professional sportsmen are workers within the meaning of this Article and consequently, Community law applies to them. (3) This implies the application of equal treatment and the elimination of any direct or indirect discrimination on the basis of nationality. The Court particularly stated that Article 39 EC Treaty not only applies to the action of public authorities but also extends to rules of any other nature aimed at regulating gainful employment in a collective manner and that obstacles to freedom of movement for persons could not result from the exercise of their legal autonomy by associations or organizations not governed by public law. (4)

In light of recent developments in the field of sport, however, certain international sport authorities have advocated the adoption of rules that might be contrary to Community law and in particular to the free movement-of-workers principle. National sport authorities, being members of the international sports authorities, should also apply the rules adopted at the international level. Therefore, the implementation at the national level of such rules would be contrary to EC law.

For example, the European Commission has published an independent study on the "home-grown players' rule" adopted by the European football governing body. This rule requires clubs participating in the European-wide club competitions - Champions League and UEFA Cup (as from the 2009/2010 season: Europa League) - to have a minimum number of "home grown players" in their squads. …

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