The Specificity of Sports: The European Experience - Term Paper Example

The Specifi of Sports: The European Experience The emergence of the European Union and the ensuing integration of its market and the establishment of a unified regional body that regulates and implements policies and rules have several important ramifications on sports. Foremost of these are those in regard to the issue of regulation and whether sports should be subjected to the laws of the union, as part of the policy areas that has interest on culture and sports. The main argument in favor of this position is that sports is primarily a commercial and economic activity and, therefore, it must be subjected, as like any other commercial enterprise, under the EU regulation. Specifically, there are those who maintain that the general provisions of the Treaty of Rome, which essentially is concerned with the four freedoms that characterize the single market system – free movement of individuals, goods, capital and services (Aspen, p19) - must be applied on the sector. However, there are those who argue against it and having sports be excluded from the legal and political framework of the EU citing the so-called “specificity of sports.” This paper will explore this issue and specifically address whether such dimension to support is a valid argument for the autonomy of sports from EU regulations and whether such exception is worth it. Background on Specificity It is widely accepted that sports is important not just because it is big business. According to the Council of Europe (2002), sports represents some 2 percent of the gross domestic product (GDP) in Europe. (p48) Authorities and people in general see sports as an important influence in society, specifically in terms of its ability to reach into the grass roots communities and to promote wider social and educational values. According to Roger Blanpain (2003), it is a human activity resting on fundamental social, educational and cultural values and that it is a factor making for integration, involvement in social life, tolerance, acceptance of differences and playing by the rules. (p39) All in all, sports touches on economic and trade issues, social integration, ideology and international relations. It has certain characteristics that constitute its specificity – the fundamental variable why it is autonomous and not exclusively covered by the EU legal framework. According to Parrish and Miettinen (2008), the specificity of the European sports can be approached through two prisms: The specificity of sporting activities and of sporting rules, such as separate competitions for men and women, limitations on the number of participants in competitions, or the need to ensure uncertainty concerning outcomes and to preserve a competitive balance between clubs taking part in the same competitions; and, The specificity of the sports structure, including notably the autonomy and diversity of sport organisations, a pyramid structure of competitions from grassroots to elite level and organised solidarity mechanisms between different levels and operators, the organisation of sports on a national basis, and the principle of a single federation per sport. (p265) It is clear that the specificity of sports in Europe is anchored on the fact that even though it is a leisure pursuit and with huge economic consequences, it is linked to social cohesion, in the drive against discrimination, as well as the promotion of healthy lifestyle and good values. There is some openness to the activity that embraces all people regardless of age, sex, gender, class, language, ethnicity, nationality and religion. It is crucial in the way people live their lives Legal Foundation The specificity of sports is supported by strong legal foundations. The two most important of these are the Treaties of Amsterdam and Nice. The Amsterdam Declaration has demonstrated the political recognition of the specific nature of sport in Europe and that even though such was undertaken merely in the context of positive action in the field, the Treaty, in the words of Parrish and Miettinen, can infiltrate the legal reasoning of the European Court and Commission in other fields with impacts on sports as demonstrated by actual cases such as the Walgrave sporting exception and the Meca-Medina inherency test, which were established with the guidance of the Treaty of Amsterdam. (p39) The Treaty of Nice is also an important legal framework that supports the specificity of sports. This Declaration is one of the strongest ever to define autonomy in sports and that its main position is that sports’ independence must be recognized even though that means derogating from the EU laws because its specificity wins over its Community Law. An underlying element in the entire legal discourse on the sports is the principle of subsidiarity. This is defined and established by the second paragraph of Article 5 (3b) EC, and was inserted into the Amsterdam Treaty by the Maastricht Agreement (Treaty of the European Union), where it stated: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot sufficiently achieved by the Member States and… be better achieved by the Community. (Hartley, p113) The German government, in stating its position on the Bosman’s case (wherein the European Court of Justice recognized that there is no reason why professional sports should not benefit from Europe’s single market), advocated that by virtue of the principle of subsidiarity, taken as a general principle, intervention by public, and particularly Community, authorities in this area must be confined to what is necessary. (Van den Bogaert 2005, p21) Indeed, later on, the Treaty of Nice was adopted in Europe. The Nice Declaration confirmed that it is the federation that should continue to be the key form of sporting organisation providing a guarantee of cohesion and participatory democracy. It went on further to state that self-regulation of the sports sector is an aspect of the principle of freedom of association, which is recognized and protected as a fundamental element of personal liberty in all EU member states’ constitution and in the European Convention on Human Rights, and hence, both the European and the national federations should be independent and their autonomy to regulate recognized and respected. (Arnaut 2006, p29-30) It is not, therefore surprising that many sporting institutions, clubs and organisations, until very recently, has been forbidding its members to take any disagreements to the ordinary courts, on pain of disciplinary action, by virtue of their own statutes and regulations. Andreff and Szymanski (2006) noted that these sports institutions have been wary of national and supranational legislations and regulations, which is made even more valid by locating their headquarters in Switzerland, which is not a member of the EU. (p735) EU Regulation As previously mentioned, the creation of the European single market has produced serious consequences for sports. Essentially, since it is a business activity, it naturally became a target for the economic and legal statutes that govern the EU’s single market system. There is an institutional pressure for the EU to promote and protect free and fair competition in the Single Market. This development has helped facilitate sports to become an identifiable industry and in the process resulted for many of sporting activities becoming subjected to the legal and institutional imperatives of the EU. The recent rulings of the European Court of Justice has so far defined the legal relationship between the EU and sports. Gardiner (2006) provided an outline of some landmark cases: The first was laid down by Walgrave and Koch v Union Cycliste Internationale, which ruled that sport, at the professional, but not amateur level, falls within the Treaty of Rome… This has clearly been reinforced by the Bosman case. The European Commission has set up a specialized unit to serve as a focal point for Community action located within the Directorate General X. (p158) A White Paper on EU intervention on sport has been suggested by The Premier League back in January 2008. In a memorandum, the League, basically, stressed that the inclusion of sports in the EU legal framework is the best way to move forward in European sports because it will address several issues that are crucial for its future development and profitability such as: co-operation on doping; player trafficking (especially in the context of the need to protect young people); money laundering; strengthening copyright protection and taking action against the misuse of intellectual property rights, including the growth in trans-border ticket touting; co-operation and taking firm action to deal with racism and hooliganism; and, introducing means to protect sporting integrity from the new challenges posed by the rapid growth in sport betting. (Great Britain Parliament 2008, p25) The main point being posited here is that EU engagement in sports policy must be defined in order to determine and encourage its ability to add value to the actions of national sports bodies and their respective governments and also to outline the need for cross-border dialogue and action. Presently, however, the European Union, using the report submitted by the Commission in Helsinki years after the Bosman case ruling, it was proclaimed that current sports structures have to be safeguarded so that its social functions are safeguarded within the Community. (Blanpain, p40) As a result, sporting organisations and Member States still have a primary responsibility in the conduct of sporting affairs. In addition, the European Commission is also taking the so-called soft law approach when it comes to dealing with sports. The use of soft law, wrote Parrish, allows the Commission to respond to political pressure and well entrenched tradition of the specificity of sports for a softer application of competition law to sport whilst not undermining their commitment to the free market. (p154-155) Furthermore, Blanpain argued that the EU government itself recognizes the various Treaties that take into consideration the social, educational and cultural functions that are inherent in sports, making it special for purposes of preservation and development. Today, the European Commission’s main role in sports in Europe is to consult with organisations across the region to plan for sports development and to identify problems associated with sports and that only in extreme cases wherein the Commission would enact legislations that would directly impact sports. (Honeybourne, Hill and Moors 2004, p177) Conclusion In the discourse of specificity of sports, there are two inevitable forces that would eventually emerge especially in the context of regulation and its relationship with the EU body and all its agencies. First is that there are important and crucial reasons why sports must still be the domain of the nation states, maintaining its independence: there is the interest on continuing education as well as the economics of sports industries. Then, the EU intervention is also no longer a matter of choice for sports. Today, the role of the body, as a transnational organisation, will grow because of the empowering effects of globalization of sporting talent production such as those in football clubs, as well as the interpenetration of the media and sports club ownership. The legal position recognized today underscores this: the professional sports has come to be subjected under EU’s legal framework while the amateur sports sector falls under the jurisdiction of Member States and sporting institutions. Out of all the debates in this regard, there emerge the recognition on the most important factor to address in regard to sporting regulation: that, the principles of good organisational governance for sports organisations must be ensured. So, at least for the time being, sporting autonomy or its exclusion from EU’s legal framework must be allowed because it continues to work. Only in the event that the current system fail to deliver on the expected social gains that the EU’s position on the matter could be reexamined. It must be underscored that there remains the fact that there are existing and legally-binding treaties and conventions that support the specificity of sports. The Declarations on sports in the Treaties of Amsterdam and Nice mandate a clear concern for the independence of sports because of its reinforcing benefits, especially in the context of future development of the sector. Finally, it must also be mentioned that the establishment of the EU does not mean the elimination of nation-states. The issue of specificity of sports supports this by demonstrating the regional body is all about a co-operation that result to a fluidity in processes of mutual adjustments especially among the different levels of national governments as they deal, negotiate and respond to the highly complicated global context today. References Andreff, W and Szymanski, S 2006, Handbook on the economics of sport. Cheltenham: Edward Elgar Publishing. Arnaut, JL 2006, “Independent European Sport Review 2006.” Aspen, P 1995, Shipping law faces Europe: European policy, competition, and environment : international colloquium held on 16, 17 and 18 November. Antwerp: Maklu. Blanpain, R 2003, The legal status of sportsmen and sportswomen under international, European and Belgian national and regional law. The Hague: Kluwer Law International. Council of Europe 2002, Documents, working papers. 2002, vol. 5: Documents 9391 & 9429-9470. Strasbourg: Council of Europe. Gardiner, S 2006, Sports law. Coogee, NSW: Cavendish Publishing. Great Britain Parliament 2008, European Commission white paper on sport: seventh report of session 2007-08 : report, together with formal minutes, oral and written evidence. London: The Stationery Office. Honeybourne, J, Hill, M and Moors, H 2004, Advanced PE & Sport. 3rd ed.Cheltenham: Nelson Thornes. Parrish, R 2003, Sports law and policy in the European Union. Machester University Press. Parrish, R and Miettinen, S 2008, The sporting exception in European Union law. Cambridge: Cambridge University Press. Van den Bogaert, S 2005, Practical regulation of the mobility of sportsmen in the EU post Bosman. Kluwer Law International. 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