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granted an express, albeit limited, role to play in the field of sport. Moreover, these provisions also demarcate the level playing field of the EU in sport, stipulating that the Union can only engage in supporting, co-ordinating and complementary action. The competence in this context rests primarily with the Member States and the sporting federations. The sporting associations do not have to fear that their regulatory competences have been encroached upon. Practically speaking, Article 165 TFEU provides the necessary legal and financial basis for the further development of a coherent direct sports policy. The question, however, remains: what will this policy look like? On the one hand, the Treaty comprises general and highprofile goals such as the development of the European dimension in sport, the promotion of fairness and openness in sporting competitions and cooperation between sports bodies, and the protection of the physical and moral integrity of sportsmen and sportswomen. On the other hand, the Union is given only a limited set of instruments as it is foreseen that the Parliament and the Council can merely establish incentive measures and besides these, the Council can adopt only recommendations. Furthermore, harmonisation of the Member States’ laws and regulations is explicitly prohibited. These restrictions illustrate that the role of the Union in the field of sport is to remain limited. In this respect, it is nevertheless submitted to reconsider this exclusion of any harmonisation of the laws and regulations of the Member States. It seems possible to envisage areas of sport where harmonisation at supranational level might actually be the solution to a particular problem. This does not automatically have to contradict with the limited competence of the Union in sporting affairs. Arguably, In the fight against doping, for example, the Union could fulfil a useful complementary role by providing a legal framework for the uniform implementation (in all Member States) of arrangements agreed upon at international level, e.g. within the World Anti-Doping Agency. The contradiction between imposing policy goals and limited means available to achieve them, results from two opposing basic assumptions. With regard to the definition of the future EU actions in the field of sport, clearly a broad description has been opted for. The only restriction seems to be that the actions need to “contribute to the promotion of European sporting issues” and “developing the European dimension in sport”. Whereas a definition of these concepts is lacking, these notions seem to emphasise primarily the need for a cross boarder element in order for the EU to be able to act. Moreover, aims like promoting fairness and openness in sporting competitions, cooperation between bodies responsible for sports, and protection of the physical and moral integrity of sportsmen and sportswomen leave room for a broad interpretation so that they can cover a great number of activities. Conversely, most of the current EU actions in the field of sport seem to fall under these broad Treaty provisions. 33 With regard to the concrete instruments for the implementation of the EU action, the Union’s competence is - as for the other supporting, coordinating or complementary competences - formulated in a strict sense. The inclusion of sport in the Treaty has thus partially also a symbolic character, for it ‘legitimises’ initiatives already taken in the domain of sport. In addition, it endorses the will to further develop these actions. In practice, it cannot be expected that these Treaty provisions bring a major change to the EU’s direct sports approach. The limited set of legal instruments seems to prevail over the broad definition of policy goals. Apart from confirming initiatives and giving an important impetus to further develop and streamline sport-related actions, the 33 Whereas the sports provisions clearly focus on the social and educational aspects of sport, the economic dimension of sport seems to fall outside the scope of the Treaty. However, this does not mean that there can not be discussions about the economic value of sport or an exchange of data and best practices on EU level. 34 Commission decision adopting the 2009 annual work programme on grants and contracts for the preparatory action in the field of sport and for the special annual events, C(2009)1685. 35 Preparatory Action in the field of sport, call for proposals EAC/21/2009. 36 Commission decision, above n. 34, p. 10- 11. 37 See http://www.eusportfuture.eu inclusion of sport in the Treaty will certainly have two concrete consequences. First, the sport-related meetings - especially those of the EU sports ministers - will no longer be limited to an informal framework. Second, an EU Sport Programme becomes feasible. Future actions It is clear then that despite the trend towards a more coherent EU sports-agenda, the range of EU sports priorities is still wide. Moreover, every topic potentially covers a great number of sub-topics. Therefore, further preparation of the implementation of the Lisbon Treaty and the EU sports policy in general can be welcomed. In this respect, reference can be made to the 2009 Preparatory Action in the field of sport. 34 This Action is build around three pillars and gives an indication of how the Commission wants to organise this preparatory phase and what topics can be considered as ‘priorities among the priorities’. The first pillar relates to a number of studies, surveys, conferences and seminars that will be organised in order to support the Commission’s dialogue with representatives from the sports world. Topics that will be covered are good governance in sport (including licensing systems), socio-economic data (including a Eurobarometer poll) and the societal aspects of sport (including the fight against doping). The second pillar relates to the identification and testing of networks and good practices in the fields of physical activity, sports training, disability sport and gender equality. 35 The third pillar aims at promoting the European visibility at sporting events and involves financial support for the 2009 Mediterranean Games in Pescara (EUR 1,000,000) and the 2009 European Youth Olympic Festival in Tampere (EUR 1,500,000). 36 The project EU:SPORT:FUTURE illustrates that the Commission also wants to involve the European citizens in the preparation of the future EU’s actions in the field of sport. 37 After the opening statement “Have your say what the EU shall do in the field of sport!” the broader public was invited to fill in a questionnaire dealing with five topics: volunteering, health, education, employment, society. By way of conclusion, it can be stated that even after the ratification and entry into force of the Lisbon Treaty, the development of a fully fledged EU sports policy will be difficult. Whether or not the implementation of this policy will lead to concrete actions will depend upon the will of the actors involved to make a clear choice within the broad range of priorities and to use the legal opportunities in the best possible way. ANNEX Agenda items under the successive EU presidencies (2000-2011) - sources France 2000: Allocution introductive de Marie-George Buffet, Parlement européen, Audition par la Commission Culture, Education, Jeunesse, Sport en Médias, 12 July 2000. Sweden 2001: Presidency summary of the Meeting of Sports Directors, Solna, 18-19 April 2001. Belgium 2001 : Conclusions of the Belgian Presidency, Conference of the Ministers of Sport of the 15 Member States of the European Union, Brussels, 12 November 2001. Spain 2002: Communiqué de Presse, Ministère des Sports France, 17 May 2002. Denmark 2002: The Presidency’s conclusions, EU Sports Ministers Conference, Arhus, 21-22 November 2002. Greece 2003: Conference “Women and Sports”, The Greek Presidency of the European Union; Six-Monthly Report on Developments in the EU by Minister for Arts, Sport and Tourism, John O’Donoghue, T.D., 1 January 2003- 30 June 2003. Italy 2003: Conclusions of the Italian Presidency, Informal meeting of Ministers for sport of the European Union, Artimino, 2-3 October 2003. Ireland 2004: Six-Monthly Report on Developments in the EU by Minister for Arts, Sport and Tourism, John O’Donoghue, T.D., 1 January 2004- 30 June 2004. The Netherlands 2004: The Presidency’s conclusions, Informal EU 6 2009/3-4 A RT I C L E S
Sports Ministers Conference, The Hague, 1-2 December 2004: Address given by Clémence Ross-van Dorp, State Secretary of health, Welfare and Sport, during the EP Presidency presentation, Brussels, 2 September 2004. Luxembourg 2005: The Presidency’s conclusions, Informal meeting of the European Union Sports Ministers, Luxembourg, 28-29 April 2005. United Kingdom 2005: EU presidency’s conclusions on sport, Informal meeting of EU Sports Ministers, Liverpool, 19-20 September 2005. Austria 2006: Conclusions of the Austrian Presidency, EU-Sport Directors meeting, Vienna Hofburg, 29-30 March 2006. Finland 2006: Conference Conclusions, Ministerial Conference “The EU & Sport”: matching expectations”, Brussels, 27-28 November 2006. Germany 2007: Council of the European Union, 18-month Programme of the German, Portuguese and Slovenian Presidencies, 17079/06, December 2006; Conclusions of the EU Presidency at the Informal Meeting of EU Ministers Responsible for Sport, Stuttgart, 12-13 March 2007; Meeting of European Directors-General for Sport in Bonn preparing Ministers’ Meeting, Bonn, 1-2 February 2007. Portugal 2007: Council of the European Union, 18-month Programme of the German, Portuguese and Slovenian Presidencies, 17079/06, 21 December 2006; Conclusions of the Informal Council of Ministers of Sport of the European Union, Lisbon, 25 October 2007; Presidency Conclusions, European Union Sport Directors Meeting, Lisbon, 12-14 July 2007. Slovenia 2008: Council of the European Union, 18-month Programme of the German, Portuguese and Slovenian Presidencies, 17079/06, 21 December 2006; Presidency conclusions, Informal meeting of EU ministers responsible for sport, Brdo pri Kranju, 16-17 March 2008; Presidency conclusions, Informal EU Sports Directors General Meeting, Brdo pri Kranju, 4-5 February 2008. France 2008: Council of the European Union, 18-month Programme of the Council, from the future French, Czech and Swedish Presidencies, 11249/08, 30 June 2008; Presidency’s Conclusions of the informal meeting of the ministers in charge of sport, Biarritz, 27-28 November 2008. Czech Republic 2009: Council of the European Union, 18-month Programme of the Council, from the future French, Czech and Swedish Presidencies, 11249/08, 30 June 2008; Informal meeting of EU Sport Directors, Prague, 28-29 April 2009. Sweden 2009: Council of the European Union, 18-month Programme of the Council, from the future French, Czech and Swedish Presidencies, 11249/08, 30 June 2008; Member State Working Group on the White Paper on Sport, meeting of 31 March 2009. Spain 2010: Provisional info, see Member State Working Group on the White Paper on Sport, meeting of 31 March 2009. Belgium 2010: Provisional info, see Member State Working Group on the White Paper on Sport, meeting of 31 March 2009. Hungary 2011: Provisional info, see Member State Working Group on the White Paper on Sport, meeting of 31 March 2009. The Sporting Exemption Principle in the European Court of Justice’s Case Law by Marios Papaloukas* ❖ As early as the seventies the sports authorities in Europe started a campaign in order to achieve the recognition of a sporting exemption from the European rules. In their view the whole of the sporting activity containing also sports rules issued by them should not be subject to the European Treaty provisions. After more than thirty years, many legal and political confrontations have resulted in the application by the European Court of Justice of the principle of proportionality in many different sports related cases in order to exclude some areas of the sports sector from the European Internal Market and Competition Rules. This exclusion however which is often referred to as “the sporting exemption” is neither absolute nor unconditional. 1. The first efforts for the adoption of the sporting exemption 1 principle The European Court of Justice’s decision (ECJ) in the case of Bosman 2 , which hit the large part of the sports world like a bolt of lightning, was actually intended to be anything but. 3 The EU had, through its Institutions, shown its intentions much earlier. In fact, it had shown its intention that sport would no longer remain fireproofed. The whole athletic establishment and its rules would have been examined to assess how much they were keeping pace with the rules of the Internal Market 4 and also those of European Competition Law. 5,6 The decisions of the ECJ with regard to sport, initially referring to infringements of the laws of the Internal Market have more recently come under those relating to Competition Law. They are examined however in this paper as if they were the same subject since it appears that the ECJ tends to establish a common rule for both cases, with common exceptions . The decisive damage inflicted by the Institutions of the European Union on the sporting establishment, was due to the fact that it decided to treat athletic institutions and their unions (federations, teams etc.) as common businesses. This however had come into being twenty years prior to the Bosman case. In any case, after the issuing of the Bosman decision, the inconvenience of the sports entities should have been expected. It is often forgotten by those not practicing the legal profession, * Attorney at Law, Athens and Assistant Professor of Sports Law, University of Peloponnese, Sparta, Greece. 1 A. Rincon, “EC Competition and Internal Market Law: On the Existence of a Sporting Exemption and its Withdrawal”, Journal of Contemporary European Law, (2007), volume 3, issue 3, 224-237. 2 M. Papaloukas, Sport: Case Law of the Court of Justice of the E.C, (Papaloukas Editions 2008), 16-34. (http://papers.ssrn.com/sol3/papers.cfm?a bstract_id=1311952). 3 A. Vermeersch, “All’s Fair in Sport and Competition? The Application of EC Competition Rules to Sport “, Journal of Contemporary European Law, (2007), volume 3, issue 3, 238-254. 4 M. Papaloukas, “Sports Law and the Sports Market”. Sport Management International Journal (2005), Vol. 1(1): 39- 45. (http://www.choregia.org/a2.pdf). 5 A. Rincon, “EC Competition and Internal Market Law: On the Existence of a Sporting Exemption and its Withdrawal”, Journal of Contemporary European Law, (2007), volume 3, issue 3, 224-237. 6 M. Papaloukas, “Sports Law and the European Union”. Sport Management International Journal (2007), Vol. 3(2): 39-49. (http://www.choregia.org/24.pdf). A RT I C L E S 2009/3-4 7
Page 1 and 2: 2009/3-4 EU Sports Policy FIFA Tran
Page 3 and 4: EDITORIAL 2 ARTICLES The Future EU
Page 5 and 6: The Future EU Sports Policy: Hollow
Page 7: Community a new dimension, such as
Page 11 and 12: and 15) that the provisions of Comm
Page 13 and 14: The Case against the Applicability
Page 15: not fall within the wording “tran
Page 19 and 20: 4 See also in support of this argum
Page 21 and 22: This is not an unrealistic career p
Page 23 and 24: cerned, the specificity of sport, a
Page 25 and 26: compensated for the income it could
Page 27: A more basic question is what weigh
Page 31 and 32: Article 17 (6) For a player over 23
Page 33 and 34: live sports rights in many other co
Page 35 and 36: equired coverage of 90% is not met.
Page 37 and 38: letes in any form, even including a
Page 39 and 40: Article 95 of the CHL Rules governs
Page 41 and 42: The RFL may declare that a player w
Page 43 and 44: ices acquired by the clubs in the r
Page 45 and 46: competition (thereby enhancing the
Page 47 and 48: Each country of the Kingdom has all
Page 49: 2.2.The objectionable NAOC intentio
Page 53 and 54: Sub Rule 29.5 It reads “The area
Page 55 and 56: To secure the appreciation of CAS i
Page 57 and 58: 5.3 Recognition by the internationa
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however it will all come to the lev
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ICAS International Council for Arbi
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or serious bodily harm. Such prepar
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cumstances arise, a measure can be
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to the amount of regulations in the
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4.1. The relationship between sport
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5. Conclusion In this article I hav
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ing a player. In order to create an
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9 The ‘reserve clause’ gave clu
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In this research, the focus will be
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sports agent will not bargain at ar
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have a dominant position. Thereafte
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3.5.2. Regulations of the KNVB The
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Siekmann, R.C.R., Parrish, R., Bran
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limit on the number of times a play
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to these regulations. This refers,
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Article 4 of the Act No. 401/1989 p
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any tax evasions. Added to this is
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the machines while, at the same tim
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saw sports betting as an easy way t
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mulated by football clubs, it was a
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tions,” which means that there we
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which includes the state monopoly a
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estricted items” and, together wi
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influence on the society. 7 Amendme
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6.4. Compatibility with Article 49
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ting market is the fact that most o
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as local). 7 The amount of the paid
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estriction in the most extensive wa
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Conditions for organizing sports be
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Although Delaware discontinued its
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Sports Betting: Law and Policy. A U
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deterred because electronic transac
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lenging time for the industry. As a
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CAS Publishes the Decisions Rendere
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tickets.com>, , and be transferre
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4. to Tottenham Hostpur Public Lim
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Football League after government pr
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Football had given them a rare outl
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Moseneke wanted everyone to underst
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men and to repair the damage that h
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a day of jet travel for any competi
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television rights to the games, 67
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extraterritoriality nor a division
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cal matter, deter interference of h
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Thus, International Law, once a law
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en. 248 Typically, two separate con
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Guarantors would have undertaken to
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ing a professional football club or
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“TRANSLATING IS THINKING WITH ANO
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