Variations of European Sports Law in Football Practice
Hamernik, Pavel, The International Sports Law Journal
It is not only European Union law which can exclusively influence the regulation of national sports association. European sports law may have more variations due to parallel existence of supremacy of EU law and so called autonomous global sports law of private law character, created by international sports organizations (with status of primacy over national sports associations). (1) In theory it looks easier: objective general law is applied in relation to everybody, erga omnes and according to principle "what is not forbidden is allowed" there exists also autonomy to self-regulate some affairs by determined group, mainly through juridical acts inter partes by contract, including those who voluntarily acceded to this "autonomous law" as members. (2) Nowadays resolution of disputes is difficult to predict due to specifics of sport sector's mosaic of legal and quasi legal relationships, how far within or beyond self-regulation of sport's sector the case will get? From the point of view of hierarchy of norms, autonomous law cannot be contra legem and European Court of Justice (now Court of Justice of EU) has demonstrated vital role on sculpturing the relationship between the law and sport. (3) Nevertheless it concerns only autonomy on some sports' sector affairs on "EU's terms." (4) There are variations available through national law too, which are shown below as a basis for autonomy of sports sector by constitutional guarantees of a state. (5)
International sporting associations among others define the rules of the game, ensure their harmonization and implementation within national associations, also enforcement of decisions of national associations (avoiding moving of sanctioned persons to other parts of the world to practice the same sport), provide appellate body like Court of Arbitration for sport and disciplinary structures. (6) This article uses the example of practice of football to describe the issue what rules are having effect on national football associations' affairs and dispute resolution in variations consisting general law and law of International sporting association. It starts with "Bosman type" transfer case of Martin Sus in the light of (not exclusively) EU law. Then it describes examples of influences of mentioned autonomous self-regulation of sport created by international sports associations. Cases built on such "multi-sources regulation" test the quality of existing system of legal environment too. That is why at the end of article sort of hard case of Bohemians Prague club saga demonstrates the difficulties when autonomous law is not capable unlimitedly cover all needs of sports sector. General law most probably is to be still needed to heal specific issues of an area of sport due to its commercialization, no matter if general law will be made at national or European level thanks to new article on sport of Lisbon Treaty.
2. Martin Sus transfer case - mosaic of alternatives and autonomies within and outside EU law
2.1. EU and sport are both special
EU and its legal system is very original and in a sense specific as well with the aim of, among others, creating of functioning internal market: "Nothing could be worse than to try to leap into the study of this new legal order equipped with domestic preconceptions about what judges do and about how law should be interpreted and applied ... economic, political, and social objectives exert a profound formative influence on the law" (7) Thus while promoting the effectiveness of European law the European Court reasoned in Walrave and Koch (8) that the prohibition on discrimination based on nationality does not only apply to the action of public authorities but extends likewise to rules of any other nature aimed at collectively regulating gainful employment and services. This applied to sporting associations, despite at that time sport was not covered by European law. The European Court did recognize specifics of sport sector in the case of Bosman (9). …