Sport as Culture in EC Law - Essay Example

Specifi of sport is a new-fangled term referring to certain rules that are mainly of sport interest only, referring to sport’s specific disposition and milieu, which are accepted under the local laws. This term, however, has never been quite comprehensively defined either legally or politically. However, the specificity of sport has been for a long time the cornerstone of the debate on European public authorities’ role in the regulation of sport. It cannot be said either that sports governing bodies have produced thorough intellectual arguments about the specificity of sport (Weatherill, 2003; 2004), despite their repeated claims that EU institutions are failing to fully recognise the specific nature of sport. Specificity of sport was conceptualised when the UEFAs Executive Committee has approved a document in 2006 presented by the European team sport organisations to the French Presidency of the European Union. Here, the European Commission was asked to finally implement the most effectual means of recognising the specificity of sport within a clear lawful basis. It further states that it should be in accordance with the principles set out in the document, and in juxtaposition with team sport federations. During the meeting set in Vienna, the document was given a go signal by the committee. It holds that the European Council should confirm its steadfast obligation to implementing a concrete definition of the specificity of sport. The European Council, the Executive Committee agreed, declared its unanimous support for the principle of dual-career training for young sportspersons and the concept of minimum numbers of home-grown (locally trained) players, or similar policies, in professional teams squads (Arnaut, 2006). Because of sport’s specific nature, it should not be regarded less, thus, it should be set apart from the other fields of business activity. This is why the Nice Declaration was signed recognising the important role of sport in the social, educational and cultural functions. In the declaration, such features must be taken into account when European Community law is applied. Furthermore, it recognises that solidarity between amateur or professional levels is a fundamental aspect of sport. With all of its significance, the independent nature of sports bodies should be supported and protected so that there would be autonomy to organise the sports for which they are responsible. The Declaration further confirms that it is the federation that should continue to be the key form of sporting organisation providing a guarantee of unity and participatory democracy. Self-regulation of the sports sector is an aspect of the principle of freedom of association, recognised and protected as a fundamental element of personal liberty in all EU member states’ constitutions and in the European Convention on Human Rights (Miettinen, 2006). The specificity of sport can be evaluated under three major headings. Firstly, sport has regularity and proper functioning of competitions. This would include: “rules of the game” or “field-of-play rules”, structure of championships and calendars; rules concerning the composition of national teams; rules relating to the national organisation of sport in Europe; rules concerning organisation of sporting competition in the European sports pyramid structure; rules relating to transfer “deadlines”; rules concerning the transfer of players in general; rules to encourage the attendance of spectators at sporting events and the practice of amateur sport; rules concerning the release of players for national teams and rules concerning doping. Furthermore, this heading would include matters such as field-of-play rules and the structure of championships and sporting calendars. These are matters that should fall within the sole discretion of the governing body. Similarly, rules concerning the composition of national teams or relating to the national territorial organisation of sport should not be called into question by European Union law. As noted, the pyramid structure is an important feature of European sport and establishes the inter-relationship between organisations and competitions both on national and international level. This is an indivisible structure, in some ways representing a co-operative. The rules that bind together the pyramid and which require clubs to commit to participation in the overall structure are also compatible with EU law principles. Other rules required to maintain the regularity and proper functioning of competition (such as transfer deadlines) are also in line with EU law. Such rules give sport an essential stability. The same could be said of measures needed to regulate the transfer of players, which are indispensable to protect the interests of players, clubs and the sport itself. Further reflection is also needed as regards a clear definition of “nationality” for the special situation of sport (Arnaut, 2006). Secondly, there is high integrity of sport. This would include: rules relating to good governance of clubs – the club licensing system; rules related to the ownership/control/influence of clubs; and rules concerning players’ agents. Sport also needs to be protected from improper influence, or even the perception of improper influence (Arnaut, 2006). This is where it is necessary to have adequate controls regarding ownership and control of clubs. These matters cannot be left to chance but need to be monitored and properly regulated. The activities of players’ agents have also, from time to time, raised questions as regards ethical standards and matters of integrity in sport. Consequently, a proper system for regulation in this area is also inherent to the organisation of sport and something that should fall within the natural competence of the relevant governing body. The third heading under sporting specificity is competitive balance. Sport is nothing without exciting and varied competition and so it is always legitimate for the governing bodies to be thinking about steps that can be taken to protect and enhance competition (Arnaut, 2006). If matters are left entirely to normal “market forces” then there is a risk that the outcome of a sporting competition will be determined solely by money. We do not think this is the way forward. Falling under the heading of competitive balance we would also place the issue of salary cost control. It should be noted that the aim here is not to place an upper limit on what players can earn but simply to prevent those with the deepest pockets buying all the best players and therefore dominating competition, contrary to the interests of the sport and the public. Whilst this is a complex subject that requires further study, one possible approach would be to limit overall salary spending levels to a percentage of club turnover and this would also require clear rules to govern how turnover (“earned income”) is calculated. Finally, we consider that a form of “payroll tax”, requiring clubs to pay a “redistribution levy” if they exceed the relevant limit on salaries, warrants particular attention. In all these areas where we consider the specificity of sport, it is necessary, when applying the law, to take into account the legitimate autonomy or degree of discretion to be enjoyed by the sports governing body and also the particular features of sport that contribute to make it different from other forms of business. Sport is not above the law and its governing bodies must respect the law of the land but the governments and regulators should recognise sport’s specificity. Sport is unlike any other economic activity and does not operate to ‘normal’ commercial rules. In football the very basis of the leagues and competitions could not exist without other teams taking part: competing teams need each other, and they all have an interest in the unpredictable nature of the sport. This explains the autonomy of European sport. It is a massive social movement that has organised itself from the very beginning. However, to earn this autonomy sports bodies must provide good governance, work for the good of all stakeholders and adopt measures to promote competition on the field of play. In football these include a licensing system to ensure financial transparency, central marketing of media rights, redistribution of revenues down to the grassroots, relegation and promotion between leagues and rules to encourage training of young players. UEFA has adopted all of these policies in recent years. The European sports model, a pyramid where the money from the elite at the top trickles down to feed the grassroots at the bottom, is at stake here. UEFA fully believes that the Independent Review offers a way forward on all these issues and can contribute to the future well-being of European sport and football in particular. However, specificity in sports is not always beneficial. EU law states that a person cannot be discriminated against because of their nationality. The government cannot refuse to give a job or career to a person simply because of their roots or citizenship because this is discriminatory and illegal. But Cesc Fabregas, a player in the Spanish national team, cannot get the job of playing football for England before because he is Spanish (Garcia, 2006). This may sound absurd, but under the law this is illegal. ‘Specificity’ is how sport with its ruling organisations gets away with breaking the law. Because it is not a ‘normal’ sector of business activity, it can ignore the law in some areas specifically the rules for national team selection. Moreover, sport is one type of business activity where human beings are traded like goods from one owner to another owner, for a price agreed on by those owners (Arnaut, 2006). This is a likely violation of the Human Rights Law but because fans are not really rational consumers, rules do not really apply. The 6+5 national quota rule of Sepp Blatter, the incumbent president of FIFA, is contrary to the law on freedom of employment. More so, specificity in sport has a breach of a person’s right to privacy. Such is the case of Andy Murray, a Scottish professional tennis player and current British number 1, who need to always be available for random drug testing (Garcia, 2006). It just gives sport the leniency to exercise powers over its dominions – the players themselves. The problem is the definition of specificity in sport is not well established. No one knows where the line is drawn, thus, sport gets away with breaking the law. The truth is nobody knows what specificity means. The problem with that is that, every now and again, someone in sport sues someone else, and the courts get to decide what it means. The courts decided we should have Bosman transfers in accordance to Bosman ruling, a case important on the free movement of labour and had a profound effect on the transfers of football players within the EU (Garcia, 2006). This rule banned restrictions of foreign EU members within the national leagues and allowed professional football players in the European Union (EU) to move freely to another club at the end of their term of contract with their present team. Furthermore, the court also gets to decide to give transfer windows, the period during the year in which a football club can transfer players from other countries into their playing staff. From the FIFA Regulations on the Status and Transfer of Player, each national football association decides on the registration periods used in that association. FIFA mandates two registration periods. Courts decided not every match should be on Sky, so we also have it on Setanta/ESPN. They, too, decided a South African cricketer to have equal rights as European cricketer, so we have Kolpak cricketers as intended in Kolpak ruling, which declared that citizens of certain countries which have signed agreements with the European Union, have the same right to freedom of work and movement within the EU as EU citizens (Garcia, 2006). Since specificity in sport does not have a clear definition and stand, it seems that certain measures and ruling will arise that are illegal to the existing laws of the European Union. This just shows how sport breaks laws. Therefore, there is a crucial need to have a formal structure for the relationship between the EU institutions and the European governing body for football. Reference Arnaut, J.L., 2006. Independent European Sport Review 2006, Final Version. (Online) Available at: http://www.independentfootballreview.com/doc/Full_Report_EN.pdf (Accessed 1 May 2010) European Council, 2000. Declaration on the specific characteristics of sport and its social function in Europe, of which account should be taken in implementing common policies, Presidency Conclusions. Nice European Council, 7-9 December http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/00400-r1.%20ann.en0.htm. (Accessed 15 May 2010) García B., 2006. Playing ball: EU Regulation of Professional Football since the Bosman Ruling, EPC Policy Brief. http://www.theepc.be/TEWN/pdf/156614831_Football.pdf. (Accessed 15 May 2010) Miettinen S., 2006. The Independent European Sport Review: A Critical Overview. 3/4 International Sports Law Journal 57 Weatherill S., 2003. Fair play, please! Recent developments in the application of EC law to sport 40 Common Market Law Review 51 Weatherill S., 2004. Sport as Culture in EC Law. In R. Craufurd Smith (Ed) Culture and European Union Law (Oxford: Oxford University Press) Read More