Sport and EU Law

Question 1

What is the principle of conferral?

Answer 1

Article 5 of TEU:

1. The limits of Union competences are governed by the principle of conferral
2. principle of conferral: Union shall act only within the limits of the competences conferred upon it by the Member States

Competences not conferred upon the Union in the Treaties remain with the Member States.

5. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

Question 2

How does the principle of conferral apply to sport?

Answer 2

Sport didn’t used to be a competence of the Eu until the Lisbon treaty in 2009
. but EU has intervened sinces 1970s
.main reason for this is impact of commercialised sport on single market

Question 3

What articles are within the Treaty on the Functioning of the EU (TFEU) concerning free movement rules, apply to sport?

Answer 3

. Article 45 (ex Art.39) of TFEU:
Freedom of movement of workers to work
in another member state

. Article 49 (ex Art.43) of TFEU:
Freedom to establish in another member
state

. Article 56 (ex Art.49) of TFEU:
Freedom to provide services in another
member state

Question 4

What articles are within the Treaty on the Functioning of the EU (TFEU) concerning competition laws, apply or could apply to sport?

Answer 4

. Articles 101 (ex Art. 81) of TFEU:
Use of restrictive practices in a specific
market

. Article 102 (ex Art. 82) of TFEU:
Abuse of a dominant position in a specific
market

Question 5

What articles are within the Treaty on the Functioning of the EU (TFEU) concerning forums, apply to sport?

Answer 5

European Court of Justice:
-Article 267 (ex Art.234) TFEU:
Usual procedure to invoke jurisdiction of the CJEU
Preliminary ruling application by National Courts(has to go through them first)

. European Commission
- Article 7 of Regulation (EC) 1/2003
Only available for competition law provisions
Appeals to the CJEU

Question 6

Explain how article laws are worded/ applied in court using Article 45 as an example

Answer 6

. The RIGHT: Art. 45.1: The freedom of movement shall be secured within the Union.

. The PROHIBITION: Art. 45.2: Such freedom of movement shall entail abolition of any discrimination based on nationality between the workers of the member states as regards employment, remuneration and other conditions of work and employment.

. The JUSTIFICATION: Art. 45.3: … such limitations justified on grounds of public policy/security/health – In sporting context-legitimate objectives of the rule/practice and must be proportionate/necessary to achieve those objectives.

Question 7

What was the background of the Bosman case?

Answer 7

. RC Liege offered Bosman new contract (refused)
. Put on transfer list
. Other clubs (French) couldn’t match fee
. Bosman forced to stay on lower wage

Question 8

When was the Bosman case?

Answer 8

1995

Question 9

What was the argument put forward by Bosman (1995)?

Answer 9

. Transfer System: Restriction on taking offer of work in another member states
. The 3+ 2 Rule: Restriction his ability to work in another member state

Question 10

What was the ruling of the courts ECJ in the Bosman case?

Answer 10

Transfer system:
Breaches Art. 45 unless it can be justified
Justification: Is there any legitimate objective for the system and whether it is necessary and proportionate to that objective
Legitimate objectives: financial equilibrium amongst clubs and compensation for training of a player

The 3+2 Rule:
Breaches Art. 45 unless can be justified
‘Purely Sporting Interest Rule’: Rule applicable to all matches (club level) and to the essence of the economic activity of professional players
Legitimate objectives: maintain traditional link with club, create pool of national players

Transfer system and the 3+2 Rule:
Not purely sporting rule and not necessary and proportionate to legitimate objectives
e.g. Transfer fee larger than training fees

Question 11

What has been the impact of the Bosman Ruling?

Answer 11

. Birth of free-agent concept: No transfer fees for out of contract players

. Training compensation: payable for players under 23

. Abolition of discriminatory nationality quotas for EU players

. Led to social dialogue between stakeholder and EU

. Compensation for breach of contract rather than a transfer fee

. Buy-out clauses instead of transfer fees

. Decision extended to players of countries signed Association Agreement with the EU 
Kolpak Case (2003) and Simutenkov case (2005)-

Question 12

What was the ruling from the ECJ courts for the Deliege case?

Answer 12

Ruling:
Economic activity: Although amateur athlete, sponsorship contracts and grants have economic element
Breaches Art. 56 unless can be justified

‘Purely Sporting interest Rule’: Rule operated by defendant inherently necessary for the proper administration of sport
Legitimate objective: to protect certain characteristics of sporting competition and applied proportionately for sporting interest only

Selection policy for international tournaments and quotas:
Inherently necessary and proportionate to its legitimate objective

Question 13

What was the argument put forward in the Deliege case (2000)?

Answer 13

Selection system and quota at national level System(only 7 places) -Restriction on providing service as judoka

Question 14

When was the Deliege case?

Answer 14

2000

Question 15

When was the Walrave case and what is the background?

Answer 15

1974
. First time these TFEU laws applied to sport
. UCI stated cyclist and pacemaker have to be same nationality
. Cyclists Walrave and Koch challenged a rule change by the UCI as discriminatory and incompatible
with Art. 18, 45 and 56 TFEU

Question 16

What was the argument put forward in the Walrave case?

Answer 16

Argument:
. Restriction on their ability to work by reducing the pool of cyclist to work with
. Discrimination on the ground of nationality

Question 17

What was the ruling of the Walrave case?

Answer 17

Ruling:
- The practice of sport is subject to community law only in so far as it constitutes an economic activity within the meaning of Art. 3 of TFEU (Paragraph 4)

• Such activity has the character of gainful employment (Art. 45) or remunerated services (Art.56) (Paragraph 5)

‘ - Purely Sporting Interest’: Where the the rules of ISF were only concerned with matters of purely sporting interest, the EU law did not apply as it has nothing to do with economic activity, provided that it remains limited to its legitimate objective (proportionality)

. Composition of national teams:

- Purely sporting rule and nothing to do with economic activity
- Its legitimate objective is organisation of international competition

Question 18

What is the four-stage test with cases concerning freedom of movement articles in sport?

Answer 18

1. Is the rule a restriction under Art.45, Art.49 or Art.56? If rule is inherent or a purely sporting rule it will fall outside the Treaty
2. If the rule is a restriction, can it be justified objectively? The justification is based on a legitimate objective sought by the rule or practice adopted.
3. The rule must be necessary for promoting the legitimate objectives pursued
4. The rule must be a proportionate means of achieving the legitimate objectives

Question 19

What are articles 101 and 102?

Answer 19

. Art.101: prohibits agreements between undertakings and decisions made by associations of undertakings which have as their object or effect the prevention, restriction or distortion of competition within the EU

. Art.102: prohibits a monopoly or market-dominating undertaking from taking an unfair advantage by abusing its dominant position

Note:NGBs and ISFs are undertakings at least part of the time and tend to be monopolistic within their sports

Question 20

What is the ‘dual role’ that ECJ ruled that NGBs and ISFs have?

Answer 20

. purely regulatory body when administering rules of sport
. undertakings when they act as commercial entities when they enter into sponsorship/broadcast deals & where rules impact economic activity of others

Question 21

When was the Piau case and what is the background?

Answer 21

2005

.To become FIFA registered agent you had to pass an exam

Question 22

What was the argument put forward by Piau 2005?

Answer 22

Argument:
FIFA Players’ Agents Regulations: Anti-competitive and contrary to Art.101 & 102 (Also Art. 56) by reducing number of agents

Question 23

What was the ruling of the Piau case?

Answer 23

Ruling:
. Nature of FIFA: Its is an association of undertakings
. FIFA regulations: the decision by association of undertakings
. Licensing requirement: an obstacle for the accession to the profession

Exemption – Legitimate Objectives:
. Licensing is a qualitative restriction rather than quantitative & raises professional standards of the profession
.Lack of legislation at European level regulating agents
. There is no representative body to regulate agents

Therefore;
. Licensing based regulatory framework is compatible with EU law as it is necessary & proportionate to achieve its legitimate objective

Question 24

When was the Meca-Medina case and background?

Answer 24

2006

. Tested positive after competition in Swimming and banned for two years by FINA

Question 25

What was the ruling in the Meca-Medina case?

Answer 25

Ruling:

• Sport is subject to the EU law when its constitutes an economic activity
• ‘Purely Sporting Interest Rule’: very hard to determine whether its purely sporting or economic - Artificial
• Distinction and unhelpful

Therefore;

• Purely sporting interest rules do not automatically fall outside the scope of EU law
• A case by case approach required
• In doing so the following needs to be taken into account;
• The overall context in which the rules are adopted
• Whether their objectives were legitimate
• Whether any consequential restriction inherent in the pursuit of those legitimate objectives
• Whether they are proportionate means of achieving those objectives

Question 26

What was the ruling in the Meca-Medina case concerning anti-doping in general?

Answer 26

Anti-Doping Regime:

The bans are inherent in the organisation and proper conduct of competitive sport

Their legitimate objective is to protect integrity and health of athletes

It is proportionate to these legitimate objectives

Question 27

When was and what is the background of the ISU case?

Answer 27

2017
International Skating Union (ISU) rules that permanently ban skaters from competitions such as the Winter Olympics and the ISU World and European Championships if they take part in events not approved by the ISU.

Question 28

What was the argument put forward in the ISU case?

Answer 28

The ISU Eligibility rules restrict the commercial freedom of athletes and prevent new organisers of international speed skating events from entering the market.

Question 29

What was the European commision’s decision in the ISU case?

Answer 29

The ISU rules imposing severe penalties on athletes participating in speed skating competitions that are not authorised by the ISU are in breach of EU antitrust law. The ISU must now change these rules.