the politics of sports regulation in the european union

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The politics of sports regulation in the EuropeanUnionRichard Parrish aa Department of European and Legal Studies , Edge Hill College , St Helens Road,Ormskirk, Lancashire L39 4QP, UK E-mail:Published online: 04 Feb 2011.

To cite this article: Richard Parrish (2003) The politics of sports regulation in the European Union, Journal of EuropeanPublic Policy, 10:2, 246-262, DOI: 10.1080/1350176032000059026

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Journal of European Public Policy 10:2 April 2003: 246–262

The politics of sports regulation inthe European UnionRichard Parrish

ABSTRACT The European Union (EU) intends to use sport to implement arange of social, cultural and educational policy objectives. However, the rapidcommercialization of European sport threatens to obstruct this goal. Traditionally,the sports sector has developed rules which have attempted to maintain a competitivebalance between participants. Given the extent of commercialization in Europeansport, the maintenance of these rules is considered by many as essential. Increasingly,however, these alleged pro-competitive rules have been regarded as anti-competitiveby the EU. Commercialization therefore not only threatens the competitive balancewithin sport, it also obstructs the EU’s desire to use sport to implement otherpolicy objectives. As such, a body of opinion has emerged seeking greater protectionfor these rules. Key actors have strategically exploited institutional venues in theEU in order to achieve this. By doing so they have contributed to the establishmentof a ‘new approach’ for dealing with sporting issues in the EU.

KEY WORDS Actor-centred institutionalism; advocacy coalition framework; EUsports policy; new institutionalism; policy change; venue shopping.

1. INTRODUCTION

The European Union (EU) has been characterized as a regulatory state (Majone1996). Embedded within the EU’s constitutional and normative structure ispredisposition for the promulgation and enforcement of rules. In other words,the forces of negative as opposed to positive integration have historically driventhe integration process (Pinder 1968, 1993). Knowledge about regulation andnot budgets or votes has been the key resource EU officials have striven for.Yet knowledge has a ‘dark side’ – technocracy (Radaelli 1999b: 758) – andthis essentially technocratic ‘path’ to integration has attracted criticism (see,for instance, Featherstone 1994 although see Radaelli 1999a, 1999b for moreon the definition of technocracy). Although defended on the grounds ofpolicy-making efficiency, technocratic integration raises important questionsof transparency, accountability, legitimacy and democracy. As a consequence,in recent years evidence suggests that policy subsystems formerly dominated

Journal of European Public Policy

ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltdhttp://www.tandf.co.uk/journals

DOI: 10.1080/1350176032000059026

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R. Parrish: The politics of sports regulation in the EU 247

by technocratic and legal norms are becoming increasingly politicized (Radaelli1999a, 1999b). This paper seeks to contribute to this debate by empiricallyadding another case study (sports policy) to those identified by Radaelli (singlecurrency, tax policy, media ownership policy: Radaelli 1999a). Furthermore,this study contributes analytically by making the case for actor-centredinstitutionalism in policy studies.

Sport is a policy area that has experienced considerable agenda expansion inrecent years. Sport became linked to the operation of the Single European Market(SEM) despite lacking a Treaty base. This is not unusual. At its inception theEU lacked a cultural, media, education and environmental policy. Today, theEU has extensive involvement in these and other important policy sectors.Explaining task expansion in these areas has been the subject of numerousstudies. Approaches drawn from international relations have traditionally pre-vailed. Intergovernmental approaches stress the centrality of the member statesin the process of European integration (Moravcsik 1993), whereas neo-functionalapproaches identify spillover as a key integrative dynamic (Haas 1957). Inessence, both approaches attempt to explain the ‘big picture’ of European inte-gration. A more modest research agenda drawn from public policy studies hasattempted to examine the contribution of systemic and sub-systemic level gov-ernance to European integration. In this connection, actor based approaches(such as policy networks and the advocacy coalition framework) and institutionsbased approaches (such as new institutionalism) have been influential.

Can these approaches explain why regulatory policy subsystems formerly heldtogether by technocratic/legal norms become penetrated by political argument?Put more simply, what drives policy change within a subsystem? The approachemployed in this study attempts to cut across the actor versus institutions dicho-tomy inherent in policy studies by developing a framework for understandingpolicy development and change drawn from both perspectives. This frameworkasserts that strategically minded actors within the EU’s system of multi-levelgovernance exploit the prevailing institutional structure in order to realize theirpolicy preferences. The actions of policy advocates operating within policy spe-cific subsystems provide the central force in driving policy change. The prevailinginstitutional structure of the EU and perturbations external to the subsystemprovide windows of opportunity for actors to exploit. As such the article buildson the tradition of actor-centred institutionalism in policy studies (see, forinstance, Scharpf 1997). In circumstances where opposing actors are relativelyevenly institutionally resourced and open competition over policy directionproves unsatisfactory for both sides, compromise between rival policy advocateswill take place. As advocates seek to protect their fundamental beliefs, it is inthe secondary aspects of their belief systems that policy change is likely to occur.

2. ACTOR–CENTRED INSTITUTIONALISM

The starting point for this research agenda is an acceptance that the EU canbe characterized as multi-levelled (Marks et al. 1996). Given a sharing of

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248 Journal of European Public Policy

competencies in decision-making, one set of actors, be they intergovernmentalor supranational, find it more difficult to control policy development. Due toa changing institutional balance of power prompted by recent Treaty changes,policy advocates find themselves able to exploit a growing number of institu-tional venues to shape policy. The EU is therefore a ‘paradise’ for those wishingto influence policy (Peters 1994: 21). Operating within the multi-level EU arevarious policy subsystems. Operating within policy subsystems are competingadvocacy coalitions, each composed of a group of like-minded individualsseeking to redirect policy in line with their particular belief system (Sabatier1998). Advocacy coalitions attempt to translate their beliefs into public policythrough the use of guidance instruments such as changes in rules, budgets,personnel or information (Sabatier 1998: 104). Policy brokers attempt tomediate between conflicting coalitions within a policy subsystem. Policyoutputs result from the interaction between competing advocacy coalitions.Furthermore, significant perturbations external to the subsystem such as majorchanges in socio-economic conditions or changes in public opinion can affectthe dynamics of policy change within the subsystem.

Sabatier notes that in terms of coalition competition, ‘financial resources andinstitutional rules are critical’ (Sabatier 1998: 117). However, without makingmore of a pronounced institutional turn within Sabatier’s framework it becomestempting merely to emphasize how the political agenda is ‘pushed and pulled’around by societal, economic or political forces (Kingdon 1995: 229). Thiswould be to assume that political institutions are merely neutral arenas in whichthese forces are played out. However, as Baumgartner and Jones remind us,policy advocates seek to influence agenda-setting and issue definition within‘institutional venues’ (Baumgartner and Jones 1991). Institutional venues mayaffect social, economic and political forces as much as these forces affect institu-tional venues. A focus on institutional venues may therefore help to addressSchlager’s concern that the advocacy coalition framework (ACF) pays insuffi-cient attention to explaining actor strategy (Schlager 1995: 244). One suchapproach that attempts to ‘bring the state back in’ is new institutionalism.

For new institutionalists, institutions are the key structuring variable betweenpolicy debate and policy outcomes. In other words, ‘institutions matter’(Armstrong and Bulmer 1998: 50). However, rather than concentrating onthe formal administrative, legal and political dimension of institutions, acharacteristic of ‘old’ institutionalism, ‘new’ institutionalism widens the defini-tion of an institution. Although still accommodating the formal rules, proce-dures and practices of institutions, new institutionalism also highlights theimportance of informal arenas such as informal rules, norms, symbols, beliefsand codes of conduct. New institutionalism therefore better reflects the ‘real’culture of institutions than its ‘old’ variant (March and Olsen 1984, 1989).The extent to which ‘institutions matter’ has divided institutionalists. Rationalchoice institutionalism asserts that actors within the EU behave rationally andstrategically in order to achieve their policy objectives. The existence of ‘venueshopping’ represents a clear example of actors seeking to exploit institutional

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design to their advantage. By contrast, historical institutionalism claims thatrather than simply constraining individual action, institutions shape anddetermine individual preferences. The institutionalist element of the frameworkemployed in this study lies at the interface between these two ‘institutionalisms’.

Making an institutional turn is crucial to understanding policy change inthe EU. The complex multi-level structure of the EU provides opportunitiesfor actors to exploit. Institutional design privileges one set of actors and theirstrategies over another. However, to take a ‘thick’ institutional turn would ineffect downplay the role of key policy actors in the process of policy change.Although institutions affect the strategies of actors through the actor selectivityinherent in their design, actors ‘have some freedom of manoeuvre more or lessskilfully and reflexively to choose a path of action’ (Jessop 2000).

The actor-centred institutional framework developed in this study acknow-ledges Jessop’s argument. As such the framework asserts the importance of (1)characterizing the EU as operating a system of multi-level governance (MLG),(2) acknowledging that the EU is composed of policy specific subsystems (theACF) and (3) recognizing the importance of institutional venues for policychange (new institutionalism). At its heart, the above methodology seeks toexplain how conflict over policy alternatives acts as a resource in the policyprocess. As Rochefort and Cobb remind us, ‘the outside audience does notenter the fray randomly or in equal proportion for the competing sides. Rather,the uninterested become engaged in response to the way participants portraytheir struggle’ (Rochefort and Cobb 1994: 5). Challenging an entrencheddefinition of a policy in the EU is greatly facilitated by the multi-levelinstitutional design. In a policy subsystem where both coalitions retainconsiderable scope for influencing policy, subsystem compromise may takeplace as rival coalitions learn more about their opponent’s resources and tactics.Coalition compromise is a tactic employed by the advocacy coalitions toprotect their fundamental policy beliefs. It is in the secondary aspects of thecoalitions’ belief systems that policy change is therefore likely to occur. Acombination of institutional design and actor strategy can therefore result indefinitions embedded within stable and insulated policy communities becom-ing challenged (politicized).

3. THE CASE STUDY: THE PATH TO AN EU SPORTS POLICY

Despite a high level of involvement in sports, the EU formally has nolegal competence to develop a common sports policy. However, the formalestablishment of a Treaty provision rarely signals the birth of a new policy. Inmost cases such a move formalizes pre-existing developments. In the case ofsport, the EU has incrementally acquired a policy interest as a result ofunanticipated consequences stemming from high issue density (Pierson 1996:173). In other words, general legal and policy principles have increasingly beenapplied to sport, thus giving sport an EU dimension. This creeping juridifica-tion of sports has occurred over a period of thirty years and has brought into

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the policy debate a range of actors attempting to challenge the initial definitionof sport adopted by the EU. Agenda expansion in this area has been particularlypronounced since 1995.

EU activity in sport has been guided by the twin engines of Europeanintegration – negative and positive integration (Pinder 1968). Embeddedwithin the Preamble establishing the European Economic Community is acommitment not only to remove obstacles to free trade and movement(negative integration) but also a desire to promote social progress and Europeansolidarity (positive integration). The balance between these two forces hasshaped the development of EU sports policy.

Two advocacy coalitions operate within the EU’s sports policy subsystem.The Single Market coalition has observed the commercialization of sport andsees much sporting activity as economically based and as such subject to thelaws of the Single Market. Sport is subject to law and its application shouldonly take the specificity of sport into account in so far as it does not impedethe uniform application of EU law and as such undermine the fundamentalson which the Single Market is based. Differences in the belief system of thesocio-cultural coalition suggest that a ‘coalition of convenience’ has been formed(Sabatier 1998: 119). Nevertheless, a common denominator holding thecoalition together is a desire for sport to be exempt either partially or fullyfrom EU law although concern for the rights of sportsmen and women as EUcitizens has been expressed. The maximalists are the strongest proponents of afully-fledged common sports policy. They support the adoption of a moreholistic definition of sport primarily by merging EU sporting actions into aseparate Treaty provision for sport. The moderates do not wish sport to emergeas an EU competence and are particularly concerned about the autonomy ofsport. The minimalists seek the strongest possible protection from EU lawwhilst maintaining the greatest possible distance from the EU. The minimalistactors share the idea that sport is a social activity as well as an economicactivity. They support the modest use of sport to implement certain EU policygoals and support attempts to limit the application of EU law to sport.However, being committed to the principle of subsidiarity, the reluctant actorsare generally cautious of extending EU influence in sport further. In particular,they do not favour granting sport a Treaty base. See Figure 1.

The EU’s first excursion into sporting issues occurred in the 1970s. TwoECJ rulings concerning motor paced cycling and nationality restrictions inItalian football established important principles governing the relationshipbetween sport and the EU. In Walrave (1974) and Dona (1976) the ECJestablished that sport is subject to EU law in so far as it constitutes aneconomic activity within the meaning of Article 2 of the European EconomicCommunity (EEC) Treaty, although exemptions from the principle of non-discrimination on the grounds of nationality are permitted but linked withthe practice of sport on a non-economic basis.1 A number of years later inHeylens, the ECJ addressed the issue of the recognition of qualifications forsports trainers.2 However, it was not until the seismic Bosman ruling of 1995

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Figure 1 The sports policy subsystem

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that the full implications of previous case law became apparent.3 In the case,Jean Marc Bosman, a Belgian footballer, successfully challenged the Union ofEuropean Football Associations’ (UEFA’s) use of nationality restrictions andthe international transfer system.

In Walrave, Dona, Heylens and Bosman the well-established principles of thefree movement of workers and the freedom to provide services became appliedto sporting contexts. Although the ECJ did make reference to the specificcharacteristics of sport, particularly in Bosman, the principles were applied ina manner irrespective of the subject matter. The European Commission’sattitude towards discriminatory/restrictive practices in sport in the aftermathof Walrave and Dona was somewhat contradictory. Despite condemningrestrictions on player mobility, the Commission’s negotiated settlementapproach with the sports world initially resulted in sport and competitionlaw operating in separate realms. The Commission appeared keen to avoidconfrontation with sport. A number of factors altered this position. The rulingin Bosman acted as an important watershed. Even though in Bosman the ECJdid not address the question of competition law and sport, instead focusingon free movement principles, the Commission used the ruling to justify greaterscrutiny of sporting activity. Furthermore, competition law offered individuallitigants a more cost-effective venue for redress than the private enforcementroute via national courts and the ECJ. The Commission’s sports-relatedcompetition law caseload swelled considerably following Bosman. Finally, thechange in the economic status of sport promoted by developments in broad-casting technology undoubtedly contributed to juridification.

The initial post-Bosman relationship between EU competition law and sportwas characterized by considerable confusion and great legal uncertainty. Usuallyacting on a complaint, the Competition Policy Directorate launched a seriesof high profile investigations into the operation of sport in Europe. Theseinvestigations have included examinations into football’s restructured transfersystem, competition between sporting federations, rules preventing the multipleownership of sporting clubs, rules preventing club relocation, the operation ofFormula One motor-racing, ticketing arrangements for major sporting eventsand restrictive practices in the sale and purchase of broadcasting rights and thetransmission of sporting events. The extent to which the EU only appeared toacknowledge sport’s economic potential resulted in the EU attracting consider-able criticism from those who thought this approach paid insufficient attentionto sport’s social and cultural significance. The EU’s Single Market regulatoryapproach to sport therefore became politicized.

The EU’s apparent predisposition for Single Market regulation threatenedto undermine the EU’s attempt to present a ‘human face’ to its citizens. Whilstthe elitist and bureaucratic path to integration in the 1950s and 1960s createdthe ‘new Europe’, the lack of popular involvement in the project failed tocreate ‘new Europeans’. In response to a perceived crisis in European integrationan ad hoc committee (the Adonnino Committee) was established following the1984 Fontainebleau Summit to explore measures that would strengthen the

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image of the European Community in the minds of its citizens. The Committeemade eight sets of non-binding recommendations, one of which concernedsport.4 The failure of the people’s Europe agenda to establish itself contributedto widespread public opposition to the Maastricht Treaty in 1992. Arguably,the legitimacy gap persists to this day despite the strengthening of socio-cultural ideas within the post Single European Act EU architecture. Forinstance, the Maastricht Treaty contained provisions on social policy, culturepolicy and tourism policy.

The essentially economic approach to sport adopted by the EU sat uncom-fortably with the general theme of a people’s Europe. Bosman confirmed themarket-oriented logic which the EU was applying to sport. Accordingly, abody of opinion emerged within the EU seeking to give the socio-cultural andintegrationist qualities of sport a higher priority and for sport to be affordeda higher level of protection from EU law. The European Parliament emergedas an important venue through which such ideas were discussed. Both the1994 ‘Larive Report’ on the European Community and Sport and the 1997‘Pack Report’ on the Role of the European Union in the Field of Sportdemonstrated a desire to balance the economic regulation of sport with thepromotion of sport’s socio-cultural and integrationist qualities.5 Furthermore,the Parliament was successful in exploiting its newly acquired legislative powersto insert an amendment into the second Television Without Frontiers Directive(TWF) in 1997 guaranteeing public viewing access to major sporting eventson television.6

Sport also received the attention of the member states. Following Bosman,calls intensified for sport to be granted a legal base within the European Treaty.Following the Maastricht Treaty’s focus on social, cultural and tourism policy,the inclusion of sport in the Treaty could be defended as a continuation of aline of reasoning. The proponents of such a move hoped that a legally basedArticle for sport would limit what was perceived as the insensitive applicationof EU law to sport whilst granting the EU a legal base to develop a socio-cultural common sports policy. Despite the strength of support, the Heads ofState and Government meeting in Amsterdam in June 1997 decided only toattach a non-binding (yet politically significant) Declaration on Sport to theAmsterdam Treaty which called on the institutions of the EU to recognizesport’s social significance.7 The member states have followed up the Declarationby releasing important political guidelines on sport and the EU in the formof Presidency Conclusions.

The Commission’s institutional response to the Amsterdam Declarationcame throughout 1998 and 1999. The Education and Culture Directorate(then known as DG X) published a series of papers on sport. ‘The Developmentand Prospects for Community Action in the Field of Sport’ and ‘The EuropeanModel of Sport’ stressed the multi-dimensional nature of sport and establisheddialogue with the sports world.8 Attached to ‘The European Model of Sport’document was a questionnaire designed to canvass opinion on the futuredirection of the EU’s involvement in sport. The findings of this exercise were

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used by the Commission to prepare the first EU conference on sport held inGreece in May 1999. The conclusions of the conference were then used bythe Commission to prepare a report, at the European Council’s request, on anapproach to safeguarding current sports structures and maintaining the socialfunction of sport within the EU framework. The report was submitted to theDecember 1999 Helsinki European Council. At the heart of the ‘new approach’embodied in the Helsinki Report is a framework for applying EU law to sport.The report claims that ‘this new approach involves preserving the traditionalvalues of sport, while at the same time assimilating a changing economic andlegal environment’.9 The Helsinki Report therefore represents the EU’s firstattempt to co-ordinate the Single Market and socio-cultural policy strands ofits involvement in sport. In essence, the report establishes an embryonic EUsports policy. However, it is a policy which is legally unattached to the Treaty.In the absence of specific primary and secondary sports legislation, soft lawhas emerged as the favoured approach.

The Commission’s first formal post-Amsterdam review of the application ofcompetition rules to sport came in a policy paper in February 1999.10 In thepaper the Competition Policy Directorate made a distinction between purelysporting situations which are not covered by the scope of competition law andwholly commercial situations to which Treaty provisions will apply. Eventhough the distinction between sporting rules and commercial rules is problem-atic, the Commission recognized that even concerning commercial rules theparticular characteristics of sport must be taken into account. The paperrepresents the first attempt at establishing separate territories of sportingautonomy and judicial intervention. Through Commission case law, attemptshave been made to further define these territories. The Commission’s recogni-tion of the specificity of sport has been demonstrated in cases concerning thecollective sale of sports broadcasting rights,11 collective purchasing agreements,12

restrictions on the cross-border transmission of sport,13 ticketing arrange-ments,14 multiple club ownership,15 club relocation,16 the operation of FormulaOne motor-racing,17 the granting of state aid to sport18 and the operation ofthe international transfer system for players.19 Whilst the Commission hasclosed some of the above cases through formal decisions, in other instances ithas relied on informal negotiated settlements and other soft law measures.

The recent activities of the ECJ further illustrate the extent to whichpolitical arguments have permeated traditionally legal domains. The ECJ’ssports-related rulings in Deliege and Lehtonen further develop the concept ofseparate territories by sanctioning the use of selection criteria and transferwindows in sport.20 Although in Walrave, Dona and Bosman the ECJ recog-nized the special characteristics of sport, thus acknowledging the distinctionbetween economic and social activities, the rulings essentially attempted toextend the scope of the free movement principle. By contrast, Deliege andLehtonen established sport specific limitations (albeit limited ones) on thescope of the principle of free movement (see Foster 2000 and Bell andTurner-Kerr 2002). It is worth noting that in Deliege and Lehtonen the ECJ

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took the somewhat unusual step of referring to the Amsterdam Treaty’sDeclaration on Sport.

The impact of this soft law Declaration has therefore been significant.However, the member states have subsequently declined the invitation extendedby the Parliament and representatives of the sports world to harden theDeclaration into a Treaty Article or protocol for sport. Meeting during theNice Summit in December 2000, the member states did, however, revisit theDeclaration in light of the on-going discussion between the Commission andthe International Football Federation (FIFA)/UEFA on the remodelling of theinternational transfer system. The Commission had expressed concerns that,despite amendments made to the transfer system following Bosman, certainaspects of it may still be incompatible with EU competition law. TheCommission objected to (1) FIFA’s failure to grant transfer to those playerswho decide to terminate their contract unilaterally, (2) the right of the sellingclub to receive a transfer fee for a player under contract whose transfer hasbeen mutually agreed, and (3) FIFA’s provision for payment of a fee forinternational transfer of all players, both under and out of contract, from anon-EU country to a member state or vice versa. The Commission believedthat these provisions distorted competition in the market of the sportsprofessional, thus reinforcing the dominant position of the top clubs andrestricting the free movement of players.21

The eventual settlement over the transfer system was informed by the NiceDeclaration on Sport (released as a Presidency Conclusion). The Declarationrepresents the member states’ contribution to the debate on the birth of EUsports law as part of a wider EU sports policy. Whilst the AmsterdamDeclaration ran to just fifty-eight words, the Nice Declaration was over 1,000words. The significant passage read:

even though not having any direct powers in this area, the Communitymust, in its action under the various Treaty provisions, take account of thesocial, educational and cultural functions inherent in sport and making itspecial, in order that the code of ethics and the solidarity essential to thepreservation of its social role may be respected and nurtured.22

Without formally granting sport a Treaty base, the above passage in effectlaunches an informal member state commitment to establish an EU sportspolicy based on the construction of the separate territories approach.

The use of soft law is a particularly pronounced feature of this approach. Softlaw refers to rules of conduct which in principle have no legally binding forcebut which nevertheless may have a significant effect on policy and legal develop-ments. Soft law refers to non-binding measures adopted by the EU institutionssuch as Treaty Declarations, Presidency Conclusions, political guidelines andCommission orientation papers, comfort letters and notices. The use of soft lawstems from the peculiarities of the EU’s system of law and governance. The EUis obviously a multinational organization. The size, complexity and diversity ofthe EU results in protracted decision-making. In the absence of unanimity,

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member states often favour the use of soft law when they are unable to agreeupon binding measures but nevertheless wish to place political pressure on theEU institutions for a change in policy direction. Soft law has therefore offeredimportant guidance as to the interpretation and scope of the application of EUlaw. The Amsterdam Declaration is increasingly a frequently sourced referencein Commission competition law cases and ECJ cases. The Commission (in thiscontext the Competition Policy Directorate) also favours the use of soft law.Politically, the Commission must be sensitive not only to the interests of themember states, but also to the requirements of business operating in the SingleMarket. Soft law is therefore often used as the politically pragmatic option. Thevoluntary notification system used in competition law also lends itself to theuse of soft law. Furthermore, those seeking clearance often favour informalnegotiated settlements. The Commission is also hampered by resource limita-tions which results in the use of administrative rather than judicial measures toresolve cases. In addition, it is not uncommon for soft law to be used as quasi-legal justification by EU institutions for the development of policy initiatives.Again, the Amsterdam Declaration on Sport has informed much of the EU’srecent sports-related activity. The lack of a formal Treaty base to take ‘harder’measures in sport clearly also necessitates the use of soft law. Soft law hastherefore characterized much of the development of the EU’s approach toestablishing the separate territories.

The absence of ‘hard’ law in the field of sport is, on the one hand,understandable.

Sporting bodies continue to argue that, while competition law is generallyan adequate mechanism for regulating normal markets, it can often be toocrude to be applied to markets touched upon by sport, because sportoperates under different market conditions to other sectors.

(Kinsella and Daly 2001: 7)

The use of informal soft law measures can therefore be defended on thegrounds of flexibility and sensitivity to the concerns of sport. As such, the useof soft law represents a distinct quasi-legal approach in its own right. However,soft law poses a number of problems. Although sport favours the negotiatedsettlement approach, the lack of clear precedents leaves the regulatory environ-ment legally fragile and confusing. The adoption of harder measures wouldarguably benefit sport through the establishment of legally binding separateterritories of sports autonomy and legal intervention. The Commission’sproposal to increasingly share the burden of applying competition law (includ-ing the exemption procedure) with national regulatory bodies and courts restson the assumption that sufficient case law has been acquired to facilitate thisdecentralization.23 As Kinsella and Daly observe, the lack of harder measuresadopted by the Commission in the field of sport means that this case lawexperience has not yet been acquired (Kinsella and Daly 2001: 13). Given thelack of hard sports law and the general vagueness of Article 81, the future ofthe competition law component of the separate territories is therefore uncertain.

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4. CONCLUSION

The above study has sought to explain the process through which the SingleMarket advocacy coalition came to dominate the sports policy subsystemonly later to become challenged by socio-cultural actors. In order to penetratethe insulated Single Market coalition and confront their legal/regulatorydefinition of sport, the socio-cultural actors have been able to go ‘venueshopping’ in order to effect a redefinition. The multi-level nature of the EUhas facilitated this activity. The socio-cultural actors have been able to drawon a number of formal and informal institutional features which have inturn shaped the direction of sports policy. These include the right of sporting‘initiative’ in the Education and Culture Directorate, the Parliament’s legisla-tive, scrutiny and budgetary powers, the primary and secondary law-makingfunctions of member states, the normative use of soft law, Council Presidencyagenda-setting, the use of formal forums/conferences, the strength of positive(socio-cultural) integration post-SEM and the exploitation of related policysubsystems. Conflict between rival coalitions resulting from this venue activ-ity has proved to be an integrative resource in EU policy-making. Bothcoalitions possess the institutional resources to undermine each other’s deepand policy core beliefs. For example, through the judicial and quasi-judicialactivity of the ECJ and the Competition Directorate, the Single Marketcoalition has the ability to enshrine their belief system in law. Potentially,this pulls against the deep and policy core beliefs of the socio-cultural actors.In order to protect these fundamental beliefs, both coalitions accept thetactic of defining a territory of sporting autonomy and a territory of legalintervention in sport.

This distinct separate territories approach marks the birth of a new policydirection for sport in the EU. It allows the socio-cultural coalition toclaim some special status for sport within the Treaty framework withoutcompromising the line of reasoning developed by the Single Market coalitionin relation to the economic status of the sector. In other words, it shifts EUactivity in sport towards a socio-cultural model of sports regulation and awayfrom the Single Market model. The separate territories approach is, on theone hand, quite a simple concept. The rules of sport are either sporting innature and as such not in breach of EU law (either falling outside the scopeof EU law or exempted from it) or they are commercial in nature and couldpotentially fall foul of EU law. However, the precise definition of whatconstitutes sporting rules and commercial rules is problematic. Nevertheless,the future of EU sports policy will be concerned with exactly this definitionalissue. Where will the boundaries of the separate territories lie?

The forthcoming 2004 intergovernmental conference (IGC) offers the socio-cultural coalition an opportunity to push for harder measures to be entrenchedwithin a new Treaty. 2004 is likely to be influenced by the staging of majorsporting events in Europe. The Olympic Games are to be held in Greece andfootball’s European Championship will also be staged. Furthermore, 2004 is

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due to be declared European Year of Education Through Sport, thus givingsport a high profile during the IGC discussions.24 Following the Year ofEducation Through Sport initiative, the Commission intends to prepare aproposal implementing a December 1999 Council Resolution on educationand sport.25 In previous reports, the EU has identified the excessive commercial-ization of sport as an actual and potential threat to sport’s social, cultural andeducational values.26 The socio-cultural coalition therefore has a strong case inarguing that current sporting rules, which are designed to maintain a competi-tive balance within the sector but which prima facie contravene EU law, requirea greater level of protection than that offered by the current approach.

A range of policy options concerning sport’s Treaty status are currentlybeing explored by the EU and sports organizations in the run-up to 2004.The more radical proposals seek to further insulate sport from the applicationof EU law. These include integrating sport into the Treaty either through anindependent sports Article or by grafting sport on to the Treaty provisionson culture. Alternatively, a protocol has been suggested by UEFA whichwould in effect place limits on the scope of EU law relating to sport.Furthermore, limits could be placed on the freedom of movement for workers(in this case sportsmen and women) by amending Articles 39, 43 and 49 ofthe Treaty.27 In addition, partial or full exemptions from the Treaty’s Competi-tion Policy provisions could be established by amending Articles 81 and 82.28

Failing that, the Commission could issue a block exemption Regulation forsport which would exempt particular sporting practices from the applicationof Article 81.

The actor-centred methodology employed above indicates the extent towhich the coalitions will compromise. It has been claimed that the coalitionswill seek to protect their deep and policy core beliefs above anything else. Tofundamentally compromise these beliefs would be to call into question theirreason for existing. For this reason, the above proposals will be resisted by theSingle Market coalition. Three further issues lessen the chances of the aboveproposals being accepted. First, these measures require the unanimous supportof the member states. Second, tactical differences within the socio-culturalcoalition exist over the relationship between sport and the Treaty. Third, byanalysing the progress of the Convention on the future of Europe it appearsunlikely that a Treaty Article for Sport will be considered as a complimentarycompetence given the current normative requirement for subsidiarity. The futuredirection of EU sports policy is therefore likely to be confined to the secondaryaspects of the subsystem’s belief systems.

In essence this means that the most likely development will see the memberstates further incrementally extending their line of reasoning on sport. Thiscould involve the further use of soft law to place political pressure on theCompetition Policy Directorate and the ECJ to recognize the specificity ofsport in their jurisprudence. A strengthened Declaration on Sport couldachieve this aim. The Commission could respond to this pressure by makinggreater use of the individual exemption procedure outlined in Article 81(3).

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The ECJ could accept ‘public interest’ defences for prima facie restrictive sportsrules. Furthermore, soft law could be used as justification for sport to beintegrated into a range of other EU activities as a way of safeguarding thespecial characteristics of sport. The Commission has identified doping andyouth activities as two such areas in which sport plays a significant role (seebelow).29 By recognizing the social, cultural, educational and health qualitiesof sport, the EU can implement sports policy goals in these neighbouringsubsystems. This can be achieved without the problematic option of developinga fully-fledged common sports policy.

A final new institutional insight concerning the EU’s budgetary rules shedslight on the future direction of EU sports policy based on the tactic ofexploiting neighbouring policy subsystems. This tactic may allow the EU toacquire a de facto competence in sport, but it does not give the EU a formallegal competence to develop a sports policy. Any extension of the EU’sinvolvement in sports policy must be carefully conceived. In UK v. Commission,the ECJ held that each budget item must have a legal base.30 This ruling resultedin the Commission abandoning its sports-related Eurathlon programme.Subsequent developments in sports policy requiring a budgetary line have hadto navigate within the EU’s rigorous budgetary rules. On these grounds, theCommission’s 2002 call for proposals concerning the development of aCommunity policy in the field of sport appears legally fragile.31 However, itrelates to preparatory measures falling within the meaning of the Interinstitu-tional Agreement on legal bases and the implementation of the budget.32 Thisagreement stipulates that any budgetary initiative must be supported by a‘basic act’ of secondary legislation. As sport is not legally rooted in the Treaty,the EU has not passed sports specific legislation and as such the basic actrequirement has not been fulfilled. The soft law initiatives which havecharacterized much of the development of EU sports policy are not considered‘basic acts’. However, appropriations relating to preparatory measures intendedto prepare proposals with a view to the adoption of future Community actionsare permitted subject to certain limitations. These preparatory measures must,however, still fall within the competence of the EU.33 The Commission hasinterpreted this as justification for their call for preparatory measures con-cerning how sport relates to doping and youth activities. Should this activityfail to gain a legal base within three years, the funding would, however, haveto cease. The budgetary ‘rules of the game’ therefore place further limits onthe future scope of EU sports policy. Nevertheless, the extent to which the EUhas acquired a greater socio-cultural expression in its policy remit sinceMaastricht means that sport now sits more comfortably within the EU’s policyarchitecture.

Address for correspondence: Dr Richard Parrish, Department of Europeanand Legal Studies, Edge Hill College, St Helens Road, Ormskirk, LancashireL39 4QP, UK. Tel: 01695 584722. email: [email protected]

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NOTES

1 Case 36/74, Walrave and Koch v. Association Union Cycliste Internationale [1974]ECR 1405. Case 13/76, Dona v. Mantero [1976] ECR 1333.

2 Case 222/86, UNECTEF v. Heylens [1987] ECR 4097.3 Case C-415/93. Union Royale Belge Societes de Football Association and others v.

Bosman [1995] ECR I-4291.4 COM (84) 446 Final, A People’s Europe, Reports from the ad hoc Committee.5 A3–0326/94/ Part A (27/4/94) Part B (29/4/94), Report on the European

Community and Sport. Rapporteur: Mrs. J. Larive. A4–0197/97. Report on theRole of the European Union in the Field of Sport (28/5/97). Rapporteur: Mrs.D. Pack.

6 Article 3a Directive 97/36/EC.7 Declaration 29, Treaty of Amsterdam amending the Treaty on European Union,

the Treaties establishing the European Communities and certain related Acts,1997. The Declaration read: ‘The conference emphasises the social significance ofsport, in particular its role in forging identity and bringing people together. Theconference therefore calls on the bodies of the European Union to listen tosports associations when important questions affecting sport are at issue. In thisconnection, special consideration should be given to the particular characteristicsof amateur sport.’

8 ‘Development and Prospects for Community Activity in the Field of Sport’,Commission Staff Working Paper, Directorate General X, 29/09/98 and ‘TheEuropean Model of Sport’. Consultation Document of DG X. 1998.

9 COM (1999) 644, ‘Report from the Commission to the European Council witha View to safeguarding Sports Structures and Maintaining the Social Significanceof Sport Within the Community Framework: The Helsinki Report on Sport’,1/12/99.

10 DN: IP/99/133, ‘Commission debates application of its competition rules tosport’, 24/02/99.

11 Case No. IV/37.398 – UEFA (1999), OJ C 99.12 Case No. IV/32.150. Commission Decision 2000/400/EC, OJ L 151, 24/06/00.13 Case No. 37.576 – UEFA’s Broadcasting Regulations, Commission Decision 2001/

478/EC OJ L 171, 19/04/01.14 Case No. IV/36.888 – 1998 Football World Cup, Commission Decision 2000/

12/EC (2000), OJ L 5, 08/01/00.15 Case COMP/37 806: ENIC/UEFA. See DN: IP/02/942, 27/06/02, ‘Commission

closes investigation into UEFA rule on multiple ownership of football clubs’.16 DN: IP/99/965, 09/12/99, ‘Limits to application of Treaty competition rules to

sport: Commission gives clear signal’.17 DN: IP/01/1523, 30/10/01, ‘Commission closes its investigation into Formula

One and other four-wheel motor sports’.18 DN: IP/01/599, ‘Commission does not object to subsidies for French professional

sports clubs’, 25/04/01.19 DN: IP/02/824, ‘Commission closes investigations into FIFA regulations on

international football transfers’, 05/06/02. See also Letter from Mario Monti toJoseph S. Blatter, 05/03/01 D/000258.

20 Joined cases C-51/96 & C-191/97, Deliege v. Asbl Ligue Francophone de Judo andothers [2000] ECR I-2549. Case C-176/96, Jyri Lehtonen and Castors Canada DryNamur-Braine v. Federation Royale des Societes de Basketball and Ligue Belge–Belgische Liga, [2000] ECR I-2681.

21 See note 19 on the outcome of the negotiations.22 Declaration on the Specific Characteristics of Sport and its Social Function in

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Europe, of Which Account Should be Taken in Implementing Common Policies,Presidency Conclusions, Nice European Council Meeting, 7, 8, 9 December 2000.

23 COM (2000) 582 Final, Proposal for a Council Regulation on the implementationof the rules on competition laid down in Articles 81 and 82 of the Treaty andamending Regulations (EEC) No. 1017/68, (EEC) No. 2988/74, (EEC) No.4056/86 and (EEC) No. 3975/87 (‘Regulation implementing Articles 81 and 82of the Treaty’). 27/09/00.

24 COM (2001) 584 Final, proposal for a Decision of the European Parliament and ofthe Council establishing the European Year of Education Through Sport, 16/10/01.

25 OJ C 8 12/01/00.26 ‘Development and Prospects for Community Activity in the Field of Sport’,

Commission Staff Working Paper, Directorate General X, 29/09/98. ‘The EuropeanModel of Sport’. Consultation Document of DG X. 1998. COM (2001) 584Final, proposal for a Decision of the European Parliament and of the Councilestablishing the European Year of Education Through Sport, 16/10/01.

27 Article 39: free movement of workers. Article 43: establishment rights. Article 49:freedom to provide services.

28 Article 81: prevention of restrictive practices. Article 82: prevention of abuses ofdominant positions.

29 See ‘Preparatory measures for a Community policy in the field of sport’, Call forProposals. DG EAC No. 33/02. See also COM (2001) 584 Final, proposal for aDecision of the European Parliament and of the Council establishing the EuropeanYear of Education Through Sport, 16/10/01.

30 Case C-106/96, UK v. Commission ECR I-02729.31 See note 29.32 OJ C 344, 12/11/98. Subsequently replaced by OJ C 172/1, 18/06/99 (Inter-

institutional Agreement of 06/05/99).33 For a full review of the potential legal bases relating to sporting actions, see

Commission document ‘Community Aid Programmes’. Available online at: http://europa.eu.int/comm/sport/doc/ecom/actions_comm_en.pdf

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Final version accepted for publication 2/11/02

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the politics of sports regulation in the european union

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