The Sporting Exception in European Union Law
Heermann, Peter W., The International Sports Law Journal
The Sporting Exception in European Union Law By Richard Parrish and Samuli Miettinen, T.M.C. Asser Press, The Hague, The Netherlands, 2008, ISBN 978-90-6704-262-8, Price: GBP 45,00
When, in the course of their activities, sports associations come into conflict with Community law and/or European antitrust law--as has happened increasingly in recent years--a specimen argument is sketched out to justify the claimed breach of the law. The sports associations regularly stress the sport's -actual or alleged--special features and derive legal consequences from this which, in the event of the facts of the matter being uncontested, range from non-applicability of the legal provisions in question to postulation of a modified application of standards. And when from their perspective the sports associations concerned feel that their association's autonomy as guaranteed by Art. 11 European Convention for the Protection of Human Rights and Fundamental Freedoms risks being too greatly restricted by the EC Convention's regulations, this is often followed by a call for the legislator, as occurred most recently during the Arnaut Report (Independent European Sport Review, 2006). On 11 July 2007, the EU Commission, which is at the leading edge of the problems in question, published a "Sports White Paper" (COM (2007) 391 final) as a reaction to the various political interventions.
Compared with other legal entities, sports associations doubtless exhibit special features. Frankly, the extent to which these special features extend into the law of fundamental European freedoms and EC antitrust law and necessitate modifications in the event of application of the relevant standards is dubious. It is at this very point in their far(but certainly not too far) reaching study completed in late summer 2007 that Parrish and Miettinen, both members of the Centre for Sports Law Research at the University of Edge Hill in the United Kingdom, start. Their work "The Sporting Exception in European Union Law" fills a gap that has long existed in English-language scientific literature and which can regrettably be lamented still in the German-speaking legal sphere.
In Chapter I the authors address the question of the extent to which sports associations can claim the sport's special features with regard to the activities it carries out, rules it specifies and structures it creates. In the process they take a brief, but absolutely worthwhile look at the application of American antitrust law in the field of sports (p. 22 et seq.), inasmuch as many of the legal problems that have arisen in recent years have been the subject of scientific discussion in the USA for decades. Chapter 2 is devoted to the politics of European sport. In addition to well-known documents, critical light is cast on the "Sports White Paper" published just a few weeks before completion of the work under discussion (pp. 42-46). In the process the White Paper's significance as a reflection of the status quo in the decision-making of the Directorate-General for Competition, the Court of First Instance of the European Communities (CFI) and the European Court of Justice (ECJ), and as a point of reference for the other Directorates-General and EU institutions is accurately described. The White Paper's criticism of individual sports associations and functionaries is sometimes clearly dismissed. Chapter 3 takes as its subject the scope of the sport's special features when applying the EC Convention's fundamental freedoms in ECJ case law and ultimately that of the CFI. In Chapter 4 Parrish and Miettinen investigate how the sport's special features have been taken into consideration in individual decisions, using the ECJ judgements in the "Walrave", "Dona", "Bosman", "Deliege", "Lehtonen", "Kolpak" and "Simutenkov" cases and in the "Meca-Medina" case. In this context case law's trends are traced in detail. In so doing particular attention is paid to what is known as purely sporting rules. …