The International Sports Law Journal 2005, No. 3-4 - Asser Institute

include suspension of the club. The clubs receive no payment. They
are explicitly stated to be responsible for the purchase of insurance to
cover the risk that the player will be injured. Even if the player is not
injured, he will arrive back at his club tired. Again - there is no question
of compensation for the club. Remember too that there is an element
of market competition at stake in these situations. International
football tournaments are to some extent in the same market as club
competitions when one considers potential interest from broadcasters
and sponsors. So clubs are required to provide a free resource, the
players, to an undertaking that is at least in part seeking to make profits
from exactly the same sources on which the clubs would wish to
draw. One would certainly not find this in a normal industry. Sport
truly is special. But is this system lawful? In particular, from the perspective
of EC law, is this an abuse of a dominant position within the
meaning of Article 82 perpetrated by the governing bodies in football?
6. The pyramid under challenge
Litigation is underway. The ‘G-14’ group of leading clubs has lodged
a challenge before the Competition Commission in Switzerland arguing
that the mandatory player release system is unlawful. In separate
proceedings in Belgium, Charleroi found that a highly promising
young player, Oulmers, returned seriously injured in November 2004
from international duty with his home country, Morocco. Charleroi’s
fortunes on the field slumped without their young star. They were
entitled to no compensation at all, despite the advantages enjoyed by
Morocco in acquiring access to Oulmers on a mandatory basis. Here
too litigation rooted in alleged violation of EC competition law is
underway. 29
To stand back, what are the pre-conditions for reliance by governing
bodies on the notion that rules necessary for the organisation of the
game may escape the scope of application of the EC Treaty? My summary
of the criteria which shape the conditional grant of autonomy
to governing bodies holds that the rules must be:
Transparent - Objectively justified - necessary - proportionate - and
must allow appropriate levels of participation by those affected.
As explained above (and for the purposes of this short article here
eschewing an extended exploration of the relevant material), I believe
the case law of the Court (and, of a less authoritative legal nature, the
practice of the Commission) can be distilled to these requirements.
But I would support this view by supplementary reference to the soft
law material pertaining to sport at EU level which has been a feature
of the last few years. As the Court has made clear in Deliege and in
Lehtonen 30 , this material is apt for citation in exploring the nature
and scope of the relevant EC rules, and it is here submitted that
despite the rather anodyne style of these texts, they operate in favour
of the case that EC law forbids the current structuring of the player
release rules.
The Declaration attached to the Amsterdam Treaty asserts that ‘The
Conference emphasises the social significance of sport, in particular
its role in forging identity and bringing people together. The
Conference therefore calls on the bodies of the European Union to listen
to sports associations when important questions affecting sport
are at issue. In this connection, special consideration should be given
to the particular characteristics of amateur sport.’
The Declaration attached to the Nice Treaty includes consideration of
the Role of sports federations. ‘The European Council stresses its support
for the independence of sports organisations and their right to
organise themselves through appropriate associative structures. It
recognises that, with due regard for national and Community legislation
and on the basis of a democratic and transparent method of operation,
it is the task of sporting organisations to organise and promote
their particular sports, particularly as regards the specifically sporting
rules applicable and the make-up of national teams, in the way which
they think best reflects their objectives. It notes that sports federations
have a central role in ensuring the essential solidarity between
the various levels of sporting practice, from recreational to top-level
sport... While taking account of developments in the world of sport,
federations must continue to be the key feature of a form of organisation
providing a guarantee of sporting cohesion and participatory
democracy’.
In line with the thesis advanced above, these Declarations asserts a
conditional recognition of the virtues of governing bodies, and the
space allowed to their regulatory autonomy. In particular, sports federations
are expected to operate ‘on the basis of a democratic and
transparent method of operation’; and they ‘must continue to be the
key feature of a form of organisation providing a guarantee of sporting
cohesion and participatory democracy’. Insistence on the virtues
of participation chimes with the broader agenda mapped by the
Commission in its 2001 White Paper on European Governance. 31 It
is perfectly possible to take these broad recommendations of good,
transparent and participatory governance and to deploy them in a
concrete legal setting. In this vein I would argue that the absence of
such necessary levels of participation is a powerful reason for arguing
that practices imposed on football clubs fall within the sphere of
application of EC law, for it is not necessary for the federations to
maintain such an exclusion of input from directly affected interests.
The rule-maker occupies a dominant position within the meaning of
Article 82 by virtue of the power conferred by the pyramid. 32 And the
rules are abusive within the meaning of Article 82 EC.
The European Commission’s 1999 Helsinki Report similarly expresses
the view that ... the basic freedoms guaranteed by the Treaty do not
generally conflict with the regulatory measures of sports associations,
provided that these measures are objectively justified, non-discriminatory,
necessary and proportional’. 33 I think the pyramid as currently
constituted is not entitled to be regarded in this positive light.
Moreover, were the Treaty establishing a Constitution for Europe,
signed in October 2004, to enter into force (which is admittedly currently
improbable) Article III-282(1)(g) would provide that Union
action shall be aimed at ‘developing the European dimension in sport,
by promoting fairness and openness in sporting competitions and
cooperation between bodies responsible for sports, and by protecting
the physical and moral integrity of sportsmen and sportswomen,
especially young sportsmen and sportswomen.’ Here is yet more rich
material apt to nourish the argument that an absence of the cited
‘cooperation between bodies responsible for sports’ drives one to a
finding that rule-making which shuts out the (directly affected) clubs
is inconsistent with EC law.
My argument is not that clubs should be permitted to enjoy unfettered
rights to decide whether or not to help the health of international
representative football by releasing players. It is doubtless necessary
that a system of players release to which clubs are bound be put in
place, or else international representative football could not survive. I
do not make a case designed to exterminate the World Cup. International
representative football is part of the very structure of the
sport - it is a distinctive feature of sport not found in other industries.
But it does not follow that these rules, as currently constituted, are
necessary elements of sports governance. Nor does it follow that the
manner in which these rules are determined, within the pyramid and
to the formal exclusion of the affected clubs, is necessary. Just as in
Bosman one might have been able to defend a more sophisticated
transfer system (perhaps of the type that has been subsequently intro-
29 ‘La Fifa assignée!: La blessure de Majid
Oulmers suscite réflexion et surtout reaction
chez Abbas Bayat’ La Dernière
Heure Jeudi 12 Mai 2005, Sports p.7.
30Cases C-51/96 & 191/97 note 00
above, paras 41-42 of the judgment; Case
C-176/96 note 00 above, paras 32-33 of
the judgment.
31 COM (2001) 428.
32 Cf Case T-193/02 Laurent Piau v
Commission judgment of 26 January
2005 (concerning FIFA’s rules governing
agents - no abuse was found in the case).
33 Note 00, page 9.
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