Abstract
As a preliminary matter, this chapter first addresses the issue of the Union’s new competences in sport that entered into force as a result of Lisbon Treaty amendments and the question of whether the practice of sport itself can be considered a fundamental right. Thereafter, it is argued that the chapter ought to be applicable to the rules and practices of the sport-governing bodies due to their state-like competences and the scope of regulatory latitude. However, it is only in the context of the Union’s economic provisions, i.e., under the judicial test for regulatory rules in sport devised by the Court in Meca-Medina and the equivalent internal market objective justification framework that the Charter may be utilised to supplement athletes’ legal arguments. As such, it provides a counterbalance to the Article 165(1) TFEU concept of the “specificity of sport” that sporting federations rely on to justify their restrictive measures. A number of the sporting rules are examined along the lines of this framework, including beginning-of-season standard agreements (a.k.a. contracts of adhesion), the content of which the athletes have no opportunity to affect as the social dialogue in many European sports is still underdeveloped; fair trial issues in the system of distribution of sporting justice; and the rights to privacy and to rest involved in the anti-doping control.
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- 1.
- 2.
For example, there was a meeting of EU Sports Directors in Genval on 16–17 September 2010. See http://ec.europa.eu/sport/consultation-cooperation/co-operation-with-the-member-states_en.htm.
- 3.
See, e.g., cases such as Case 36/74Walrave and Koch v. Union Cycliste Internationale and others [1974] ECR 1405; Case 13/76 Gaetano Donà v. Mario Mantero [1976] ECR 1333; Case C-415/93Union Royale Belge Sociétés de Football Association and others v. Bosman and others [1995] ECR I-4921; Joined Cases C-51/96 and C-191/97 Christelle Deliège v. Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo and François Pacquée [2000] ECR I-2549; Case C-176/96 Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v. Fédération royale belge des sociétés de basket-ball ASBL (FRBSB) [2000] ECR I-2681; Case C-325/08 Olympique Lyonnais SASP v. Olivier Bernard and Newcastle United FC judgment of grand Chamber of the Court delivered on 16 March 2010; and Case C-519/04 David Meca-Medina and Igor Majcen v. Commission [2006] ECR I-6991.
- 4.
Such as in the fields of social policy, education, vocational training, culture, and public health.
- 5.
See the European Parliament, Directorate-General for Internal Policies, Study on the Lisbon Treaty and EU Sports Policy (2010), p. 13.
- 6.
See, e.g., Brems and Lavrysen (2012), p. 228.
- 7.
- 8.
- 9.
- 10.
- 11.
See, e.g., Backe Madsen and Johansson (2008).
- 12.
See, e.g., Morel (2012), pp. 229–259.
- 13.
See, e.g., the speech by Annette Hofmann at Play the Game conference in Cologne “Women Challenge the IOC in Court: The Case of Ski Jumping” 5 October 2011, and BBC News “Women Fight Olympic Ski Jump Ban” 21 April 2009.
- 14.
See the speeches at Parallel Session on Transgender Challenges at Play the Game conference in Cologne, 5 October 2011, and P. Griffin “Inclusion of Transgender Athletes on Sport Teams” available at http://www.transgenderlaw.org/resources/Griffinarticle.pdf.
- 15.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 21 September 2010—Strategy for equality between women and men 2010–2015 [COM(2010) 491, final].
- 16.
European Union Agency for Fundamental Rights “Racism, ethnic discrimination and exclusion of migrants and minorities in sport: a comparative overview of the situation in the European Union”, October 2010. Available at http://fra.europa.eu/sites/default/files/fra_uploads/1207-Report-racism-sport_EN.pdf.
- 17.
- 18.
Para. 3.7 of the J.L. Arnaut, Independent European Sport Review (2006).
- 19.
See, e.g., Greenfield and Osborn (2004), p. 171.
- 20.
Germany is the extreme example as national sports organisations enjoy a very high degree of autonomy, the federal and Länder governments having delegated policymaking in the field of sport to them.
- 21.
A term used to describe the process by which sport leaves the safe zone of internal self-regulation and becomes a subject to ordinary laws. Under this process, “what were intrinsically social relationships between humans within a ‘social field’ become imbued with legal values and are understood as constituting legal relationships – thus social norms become legal norms”. See Gardiner et al. (2005), pp. 84–88.
- 22.
European Commission White Paper on Sport, COM(2007) 391 final, para. 4 [emphasis added].
- 23.
Notably in Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions “Developing the European Dimension in Sport” COM(2011) 12 final, 18. 1. 2011.
- 24.
European Model of Sport, Consultation Document of DG X, European Commission.
- 25.
Brems and Lavrysen (2012), p. 227.
- 26.
Paragraph 17. In Case 36/74Walrave [2012], one of the questions related to the horizontal direct effect of the TFEU Articles 18, 45, and 56, as the respondent in the case, Union Cycliste International, was not a body governed by public law but a private sporting organisation.
- 27.
Ibid. para 18.
- 28.
Case C-415/93Bosman [1995], Joined Cases C-51/96 and C-191/97 Deliège [2000], Case C-176/96 Lehtonen [2000].
- 29.
Case C-438/05 Viking Line judgment of 11 December 2007, para 79; Case C-341/05 Laval judgment of 18 December 2007.
- 30.
Ibid., para 58.
- 31.
See Art. 2 TEU.
- 32.
Alternatively, nothing in the Charter indicates that indirect horizontal effect of its provisions is precluded. This is supported by the Court’s jurisprudence in cases like C-144/04 Mangold v Helm [2005] E.C.R. I-09981 and Case C-555/07 Kücükdeveci [2010], judgment of 19 January 2010. However, even in the context of indirect horizontal effect, it should not be forgotten that we are not talking about classic private operators to which many policy questions, such as whether the obligation to comply with the fundamental freedoms would be excessively burdensome, apply.
- 33.
For details, see the discussion below in the subparagraph on anti-doping control.
- 34.
See, e.g., Case C-325/08 Bernard judgment of grand Chamber of the Court delivered on 16 March 2010.
- 35.
Commission Communication on Developing European Dimension in Sport (2011), para. 4.2.
- 36.
Case C-176/96 Lehtonen [2000].
- 37.
Case C-415/93 Bosman and Case C-325/08 Bernard.
- 38.
Case 519/04 Meca-Medina.
- 39.
White Paper on Sport, para. 4.1.
- 40.
Commission Staff Working Document “Sport and free Movement” Brussels SEC(2011) 66/2—Accompanying document to the Commission Communication on Developing European Dimension in Sport (2011), p. 7.
- 41.
See the European Parliament, Directorate-General for Internal Policies, Study on the Lisbon Treaty and EU Sports Policy (2010), and Pijetlovic (2010), pp. 858–869.
- 42.
Case 5/88 Wachauf [1989] ECR 2609, Case C-260/89 ERT [1991] ECR I-2925, Case C-309/96 Annibaldi [1997] ECR I-7493.
- 43.
See the Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0017:0035:en:PDF.
- 44.
Case 36/74Walrave and Koch [1974] ECR 1405, para. 4.
- 45.
Case 519/04 Meca-Medina, para. 28.
- 46.
Ibid., para. 42. [emphasis added] This test applies to Article 102, as well by virtue of the Court’s decision in C-250/92 DLG case, a precursor to C-309/99 Wouters and C-519/04 Meca-Medina in which this test was applied to both Articles 101 and 102.
- 47.
Case C-19/92 Kraus [1993] ECR I-1663, para. 32, and Case C-55/94 Gebhard [1995] ECR I-4165, para. 37.
- 48.
It is of importance to mention that in sports cases, the Union’s competition and free movement rules converge to a high extent and that, contrary to established case law, both indirectly discriminatory and non-discriminatory measures and directly discriminatory measures benefit from open list of public policy justifications. At the same time, public policy objectives can be relied on in the framework of Article 101 and 102 TFEU under Meca-Medina framework [although in competition law normally only economic justification under Article 101(3) TFEU can be used]. While the EU competition rules are clearly addressed to private undertakings, internal market rules are addressed to Member States. Sports federations are a subject to both set of norms.
- 49.
Case C-415/93 Bosman [1995] ECR I-4921, para. 72.
- 50.
Ibid., para. 79.
- 51.
Ibid., para. 80.
- 52.
Palmer (2011).
- 53.
Communication “Developing the European Dimension in Sport”, para. 4.1.
- 54.
For the US, see Halgreen (2004).
- 55.
See list of projects in fn. 6, section 5.3 in Commission Staff Working Document, The EU and Sport: Background and Context, Accompanying Document to the White Paper on Sport, COM (2007) 391 final.
- 56.
See Promoting Social Dialogue in European Professional Football (Candidate EU Member States), Report for the European Commission, November 2004, and Study on the Representativeness of the Social Partner Organisations in the Professional Football Player Sector, Report for the European Commission, Project No VC/2004/0547 (2006).
- 57.
See Study into the Identification of Themes and Issues which can be Dealt with in a Social Dialogue in the European Professional Football Sector, Report for the European Commission, May 2008. See also the press release in The International Sports Law Review 1–2 (2008), p. 109.
- 58.
Such as cycling. See Study into the Identification of Themes and Issues to be Dealt with in a Social Dialogue in the European Professional Cycling Sector, report for the European Commission (2009).
- 59.
Demir and Baykara v. Turkey [2008] ECHR 1345.
- 60.
There are also implications for the rights set out in Articles 27 and 28 of the Charter on right of collective bargaining and action.
- 61.
Association of Tennis Professionals.
- 62.
See ATP official website http://www.atpworldtour.com/Corporate/Management.aspx.
- 63.
In addition, Section I (1) of the Uniform Tennis Anti-Corruption Programme provides that any decision related to corruption offence may be appealed exclusively to CAS.
- 64.
In her report, only 2–5 players out of ca. 3,000 return the signed forms before the season begins.
- 65.
Montmollin and Pentsov argue that “the athlete who wants to participate competition does not have a choice and must accept the arbitration clause, in particular by adhering to the by-laws of the sports federation containing the arbitration clause, all the more when the athlete is a professional. Otherwise, he would be confronted by the following dilemma: agree to arbitration or practice his sport as an amateur”. See De Montmollin and Pentsov (2011), p. 207.
- 66.
Cañas v ATP Tour and others 4P.172/2006 (2007) (Switz.), ATF 133 III 235, translated in 1 SWISS INT’L ARB. L. REP. 65, 84–85.
- 67.
Osmo Suovaniemi and others v. Finland, 23 February 2009, No. 31737/96.
- 68.
Landrove (2006), p. 81.
- 69.
Case C-67/96 Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751; Cases C-115, 116, & 117/97 Brentjens’ Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen [1999] ECR I-6025; and Case C-219/97 Drijvende Bokken [1999] ECR I-6121.
- 70.
CAS Statutes, 2012 edition, Article R45. For more information on the Court of Arbitration for Sport, see, for e.g., Blackshaw (2009), pp. 45–99.
- 71.
Article 190 (2) of Swiss Federal Code on Private International Law sets out procedural public policy guarantees and specifies that an arbitral award can be challenged only “if a sole arbitrator was designated irregularly or the arbitration tribunal was constituted irregularly; if the arbitration tribunal erroneously held that it had or did not have jurisdiction; if the arbitration tribunal ruled on matters beyond the claims submitted to it or if it failed to rule on one of the claims; if the equality of the parties or their right to be heard in an adversarial proceeding was not respected; and if the award is incompatible with Swiss public policy”. Fair trial guarantees in the Swiss legal order also form part of public policy.
- 72.
A. and B. v. IOC and FIS (Lazutina), 4P.267–270/2002 (1st Civ. Ct., 27 May 2003).
- 73.
Černič (2012), pp. 259–283.
- 74.
Ibid. 279.
- 75.
The Contador case took one and a half years to resolve, which is three times longer than the time envisaged for appeal procedures.
- 76.
The UTACP is mainly geared towards the fight against match-fixing offences in which a person (often a tennis player, sometimes organised syndicates) attempts to affect the outcome of his/her own or other players’ match by fixing the score in advance. This gives opportunity to earn hefty profits against the odds on the sports-betting market. It is available at http://www.tennisintegrityunit.com/UTACP-2012.pdf.
- 77.
Engel and Others v. Netherlands (1979–80) 1 E.H.R.R. 647.
- 78.
Ibid.
- 79.
“Match-fixing in sport: a mapping of the criminal law provisions in EU 27” (March 2012), pp. 15–16. Available at http://ec.europa.eu/sport/news/documents/study-sports-fraud-final-version_ en.pdf.
- 80.
Commission Communication “Developing the European Dimension in Sport” January 18, Brussels, COM(2011) 12 final, para. 4.5.
- 81.
“Match-fixing in sport: a mapping of the criminal law provisions in EU 27” (March 2012), pp. 15–16.
- 82.
Decisions in Köllerer and Savic cases before the Anti-Corruption Hearing Officer are kept secret and not published, but both players received a lifetime ban and a fine of 100,000 and 85,000 USD, respectively. Redacted CAS awards confirming the ban but lifting the fines are available at http://www.tas-cas.org/recent-decision.
- 83.
See, inter alia, the ECHR judgment of 28 June 1984 Campbell and Fell v. United Kingdom Series A no. 80, pp. 39–40, para. 78.
- 84.
Dimes v Grand Junction Canal Co (1852) 3 HLC 759.
- 85.
Locabail (UK) Ltd v Bayfield Properties [2000] 1 All ER 65.
- 86.
Footnote omitted.
- 87.
See David Savic and Daniel Köllerer cases before the AHO [the decisions are secret, but decisions (on appeal) by CAS provide a lot of insight]. Appeal to CAS costs tens of thousands of Euros, including lawyer and tribunal fees, and this is an amount that not many tennis players can afford, especially not after they have been imposed severe fines that only the richest of them can pay.
- 88.
The General Court’s judgment in T-24/90 Automec Srl v Commission, para 86, provides a test for the existence of the European Union interest in the case. Accordingly, in assessing such interest, the Commission in particular looks at (1) the scope of the investigation required, (2) the probability of establishing the existence of the infringement, and (3) the significance of the infringement from the point of view of the internal market.
- 89.
Para. 2.1 [emphasis added].
- 90.
- 91.
For more on WADA see http://www.wada-ama.org.
- 92.
For more information on the anti-doping programme, see World Anti-Doping Code available at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/WADP-The-Code/WADA_ Anti-Doping_CODE_2009_EN.pdf.
- 93.
Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, OJ L 299 18.11.2003 p. 9–19.
- 94.
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, 23.11.1995 p. 31–50.
- 95.
The Guardian: “EU puts WADA whereabouts rule in doubt” 21 April 2009.
- 96.
Soek (2008), p. 100.
- 97.
Černič (2012), p. 261.
- 98.
Case C-519/04 Meca-Medina [2006] ECR I-6991.
- 99.
The appeal against the suspension was first launched before the CAS, which confirmed the decision of the doping panel, but later when scientific experiments showed that nandrolone’s metabolites can be produced endogenously by the human body at a level that may exceed the accepted limit when certain foods have been consumed, they reduced the sanctions to 2 years. In 2001, however, the applicants launched the complaint with the Commission, whose decision they appealed to the General Court, and finally the decision of the General Court was brought before the Court.
- 100.
C-519/04 Meca-Medina, paras. 16–17.
- 101.
Council of the European Union, EU contribution to the revision of the World Anti-Doping Code, 13516/12 SPORT 47 DOPAGE 13 SAN 193 JAI 606 DATAPROTECT 104, Brussels 26 September 2012, para. 2.1.3.
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Pijetlovic, K. (2014). Fundamental Rights of Athletes in the EU Post-Lisbon. In: Kerikmäe, T. (eds) Protecting Human Rights in the EU. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-38902-3_10
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