Islj 2009 3-4 - TMC Asser Instituut

competition (thereby enhancing the entertainment spectacle for consumers).
Furthermore, attendance data collated by the RFL demonstrates
that average weekly attendance at a Super League match
increased annually between 2001 and 2008. 45 Since the number of foreign
players participating in the competition also increased over the
latter part of that period, it is arguable that the number of foreign
players in a Super League first team squad does not negatively affect
supporter interest. The positive benefits provided by foreign players to
the competition, local players and consumers outweigh the introduction
of a rule that discriminates, limits competition in the relevant
market and ultimately reduces the quality of the sporting spectacle for
consumers.
Conclusion
The “club trained rule” is anti-competitive, discriminatory and disproportionate
to the aims it seeks to achieve; it infringes Article 81(1).
Furthermore, it is unlikely the exemption contained in Article 81(3)
applies. Whether the “club trained rule” improves production of playing
services or promotes technical or economic progress is difficult to
45 Rugby Football League, Super League
Attendance Data 2000-2008 (as at 4
September 2008).
ascertain because of its simultaneous introduction with the licensing
system; and the removal of the “rule of promotion and relegation”.
The competition’s regulatory framework encourages the Super League
clubs to develop junior players in ways that: are non-discriminatory;
have a minimum effect in the market for playing services; and do not
impede access to employment for some players. The “club trained
rule” was thus unnecessary in light of other aspects of the regulatory
framework.
The RFL and the clubs can not protect the local labour market
from competition with nationals from other Member States (a factor
in common with other British employers). If a reduction in the number
of foreign players is required, the RFL may use the consultation
process undertaken annually with the United Kingdom Border
Agency to strengthen the criteria for a professional rugby league player’s
work permit. In that way the RFL may legitimately influence the
number of foreign players entering the competition through employment
at British clubs. Finally, the rule was introduced by the RFL and
the clubs unilaterally following limited consultation with affected parties.
A more robust application of European competition law is
required in order to limit the exercise of private regulatory power that
detrimentally affects the consumer interest and the employment
interests of professional rugby league players.
A Plea for Olympic Recognition
for Curaçao
by Roy Paul Bottse*
❖
Introduction
One of the deepest sensations of the Olympic Games is seeing your
national flag flying among all the other ones while marching into the
Stadium on the opening day. Participants and team officials will
always have difficulty to explain the emotional feelings of that
moment. For all, it is the fulfillment of an incredible dream, topping
rough and tough years of hard work and sacrifices.
I am grateful to be among the lucky few to ever experience the
Olympic Games as participants. My own experiences date back to
more than three decades ago, 1 and up to date, they have been the
rewarding compensation for all the hardship I went through. I will
never forget seeing our flag flying proudly and intensely among all the
many others. To me it was a moving confirmation of international
recognition of our country.
The Olympic Games are one of the best-known ongoing inheritances
of mankind. Hence, all countries, small or big, have the historical
right to be part of this wonderful tradition. As a former Olympic
athlete I will always do whatever I can to promote, protect and support
participation in this unmatched magical event.
Now, many years later I have decided to pursue another dream:
studying law. It has had my attention ever since, but somehow I never
got to doing it, until 2005 when I had to take care of my sick wife and
decided to quit my job. While she was mostly sleeping in the afternoon
and the early evenings, I took on law school in order to do
something useful and interesting.
* Master Thesis, University of the
Netherlands Antilles, Faculty of Law,
July 2009.
1 http://www.sports-reference.com/
olympics/summer/1976/ATH/
mens-800-metres.html.
2 http://referendum.cura.net.
3 Antillas Holandesas, AHO, the formal
Olympic abbreviation for the
Netherlands Antilles as included in the
IOC list.
4 J. C. Barker, International law and international
relations. p. 176.
Combining the past and the present, I have elected my final thesis in
relation to our sport identity within the constitutional reform our
country is going through. My attention is primarily fixed on gathering
relevant supporting arguments towards contesting a routinely confirmed
impossibility of recognition for a National Olympic Committee
(NOC) of an autonomous Curaçao by the NOC Relations Depart -
ment of the International Olympic Committee (I.O.C).
It all started with the historical event of the referendum held in
Curaçao in April 2005, in which the majority of the population voted
for the option of abandoning the Netherlands Antilles constellation
and becoming an autonomous country within the Kingdom. 2
Among other things, one would expect this alteration to include
that local athletes will no longer compete internationally under the
Netherlands Antilles (AHO) 3 flag, but in the future will showcase the
colors and anthem of Curaçao. However, referring to the current
Olym pic Charter the current Netherlands Antilles Olympic Commit -
tee (NAOC), proclaimed that recognition of a Curaçao Olympic
Committee of its own is not feasible.
The case itself has not much to do with sports, but is an interesting
riddle of constitutional, national, international private and public
law as well as sports law. Note that in order to understand the presented
problem and the advocated approach, one must not restrict him
self to national law but frequently shift to the territories of international
and international sport law, which both have their specific doctrines
and customaries. One typical aspect international law is certainly
that it is not static, but adapts to opinio juris, and also that interpretation
is legal part of authoritative decisions. 4 Most probably this
case is the first issue contesting the true value of the future autonomy
of Curaçao as negotiated by the island political leadership.
My Thesis is the following:
Is, in the year 2009, the verbatim text of Rule 31.1 of the Olympic Charter,
A RT I C L E S
2009/3-4 43