SPORTS POLICY

Sports policy has no specific legal base and is therefore currently governed by general provisions of the Treaty on the internal market and by the jurisprudence of the ECJ .In the event of entry into force of the Lisbon Treaty, sport will become an EU policy, although the Community would primarily play a supporting role to Member States. LEGAL BASIS In the EC Treaty: Articles, 39-55 (free movement of people, services and capital), 81- 89 (competition policy), 149 (education), 150 (professional training), 151 (culture), 152 (public health). Although no article in the Treaties mentions sport explicitly, in practice many areas of EU competence have a direct impact on sport - notably on its economic aspects. These are governed, for example, by the articles on the freedom movement of workers. However, EU leaders gave a political signal that they wished to recognise the wider role played by sport by including a Declaration on Sport in the 1997 Amsterdam Treaty. The Nice Treaty also included a Declaration on the "specific characteristics of sport", which recognised its important social, educational and cultural functions. The Constitutional Treaty went even further in recognising sport as a strand of EU policy. It included sport among the areas in which the EU can take supporting, coordinating or complementary action and again made specific reference to its social and educational functions. The Lisbon Treaty, should it come into force, contains very similar wording (Article 165). Due to the lack of a specific legal basis, European sports law has been shaped to a great extent by the case law of the European Court of Justice (ECJ). This situation has led to a high degree of legal uncertainty as it is not clear up to what point sporting organisations are competent to act autonomously as self regulators and where, on the other hand, the European regulator should intervene. As a general rule, and based on the existing Treaty provisions supported by the case law of the ECJ and decisions of the European Commission, it can be stated that sport, whenever representing an economic activity, falls under the scope of EC rules. Sport in Europe, however, is characterised by a very close relationship between its professional and amateur branches. This structure, described as the European sports "pyramid" model, is founded on local and amateur sport and ends in the highly professional leagues and respective federations. The different layers are linked by the fact that competitions are not closed (relegation is possible) and through certain redistributive measures which channel some of the profits from the top to the amateur level. Therefore, a clear separation between professional and amateur and between economic and non-economic sporting activities in practical terms would be impossible to achieve. OBJECTIVES In its action under the various Treaty provisions and Declarations, the EU deals with the economic, social, educational and cultural aspects of sport. ACHIEVEMENTS Many aspects of EU policies have an impact on the sporting world. In addition to those listed above, it is worth mentioning audiovisual policy and health policy. A.Free Movement of Workers As an economic activity under the terms of Article 2 of the EC Treaty, sport must comply with European law, in particular the provisions relating to the free movement of workers, as acknowledged by the Court

of Justice ruling in the Walrave case (1974). Since then, various cases (Dona, Delige and Lethonen) have confirmed this approach. In December 1995 the Court, basing its reasoning on Article 48, ruled in the very important Bosman case (C-415/93) that transfer fees, directly affecting a footballers access to the employment market in another EU country, were an obstacle to the free movement of workers and thus illegal under the Treaty. The Court also ruled against any limit on the number of non-national EU players who could be fielded in a club team. In December 1998, following a number of complaints, the Commission expressed several reservations to the International Federation of Football Associations (FIFA), with regard to its transfer system and its compatibility with EU competition law and free movement of workers. After long discussions, the Commission, FIFA and UEFA (the Union of European Football Associations) and professional footballers representatives (FIFPro) agreed in 2001 to bring the transfer system in line with EU law whilst taking account of the specific nature of football. Many argue that under current arrangements the training of young sportspersons is not sufficiently taken into account. Especially in team sports, notably football, young talents are increasingly "imported" from outside national or EU borders to the detriment of young local players. Two models exist to tackle the problem. The "Home-grown players rule", currently applied by UEFA, imposes that each professional football club should have at least 8 players trained at the club or in the same country in its squad of 25. The other model is the FIFA sponsored "6+5" proposal, under which in every professional team 6 players of the 11 players actually taking the field would have to be nationals of the country they are playing in. The Commission has criticised this idea for being discriminatory against non-nationals which runs counter to the free movement of workers, whereas it gave cautious support to the "Home-grown players rule". B.Competition Policy There are two strands to sport: on the one hand, the sporting activity itself which fulfils a social, integrating and cultural role to which the competition rules of the Treaty do not theoretically apply, and, on the other hand, a series of economic activities generated by sporting activities to which the competition rules of the Treaty do apply. The interdependence and in particular the overlap between these two strands makes the application of competition rules more complex. Sporting federations are considered under EC law "undertakings" and therefore fall under the scope of EC anti-trust rules. Hence articles 81 and 82 of the Treaty play an important role in the sports sector. The Commission has the task of ensuring that EU competition rules are respected. Many complaints brought before the Commission and court cases are based on the claim that a sports body has misused its power and breached anti-trust rules (see for example the recent case Meca-Medina and Majcen v Commission, Case C-519/04 P). Another competition aspect is state aid (Articles 87-89). Many sport clubs rely on subsidies granted by local, regional or national authorities (in the form of tax breaks, preferential conditions for loans etc), especially when it comes to financing sports infrastructure. This practice, depending on the specific circumstances, could be considered a breach of state aid rules. C.Sports Events and Audiovisual Policy Television is the primary source of funding for professional sport in Europe. Some sports, such as football and Formula 1, achieve very high viewing figures, which explains the importance attached to these events by broadcasters. Many broadcasters are willing to pay large amounts for the exclusive right to broadcast popular sports events. In this regard the (AVMS) Directive, is important since it sets out guarantees as regards the unencoded broadcasting of certain major sporting events. The Directive allows national authorities to specify a limited number of events which must be available for broadcasting on "free" channels. D.Public Health and The Fight Against Drug-Taking EU Member States have national legislation to combat drug-taking in sport, but EU Sports Ministers and the EU institutions have taken the view in several resolutions that the current situation can only be improved by increased cooperation at the EU and international levels. The World Anti-Doping Agency (WADA) was established on 10 November 1999 to promote and coordinate the fight against drug-taking in sport in all its forms at international level. The European Commission played an active part in setting up WADA. The conclusions of the informal meeting of EU Sports Ministers on the fight against doping in February 2003 stated that the third draft of the WADA Anti-Doping Code (which was approved

during the WADA Copenhagen Conference in March 2003) should be fully binding on athletic bodies and organisations at all levels. The Code has been recently updated in September 2007. Ministers have also stressed that close cooperation between the EU, the Council of Europe and United Nations Educational, Scientific and Cultural Organisation (Unesco) is needed in order to properly tackle the problem of doping and its international and cross-border nature. E.Sport and Education In 2003 the EP and the Council established the European Year of Education through Sport (EYES) 2004 through Decision 291/2003. While this initiative had many aims, particular importance was attached to raising young people's awareness of the importance of sport in the development of personal and social skills and to encouraging the links between education and sport. EYES was very successful, making it possible to finance 161 projects (including 10 Community projects, i.e. projects that brought participants together from more than eight European countries). There was also an information campaign on the educational value of sport. This success led experts to recommend that European action in the field of education through sport should be continued. Furthermore, sport is an important instrument to promote positive societal values such as the ideal of team spirit or fair competition. It is also a means of inclusion of socially disadvantaged people (for example immigrants) into society. An example is the Homeless World Cup, held in South Africa in September 2006. F.White Paper on Sport After two years of consultations, the European Commission adopted a White Paper on Sport in July 2007, which is its first comprehensive document setting out its vision for the sector. The White Paper aims at: providing strategic orientation on the role of sport in the EU; encouraging debate between the EU and sport bodies on specific problems; enhancing the visibility of sport in EU policy-making; raising awareness of the needs and specificities of the sector; identifying the appropriate level of further action at EU level. The White Paper also proposes concrete actions in a detailed action plan known as "Pierre de Coubertin". The action plan concerns social and economic aspects of sport, such as public health, education, social inclusion and volunteering, external relations and financing. ROLE OF THE EUROPEAN PARLIAMENT The European Parliament is very much of the view that there is a growing necessity for the EU to deal with sports matters while fully respecting the principle of subsidiarity, and is therefore in favour of including an explicit reference to sport in the treaties. Within the EP, the development of a European sports policy falls under the competence of the Committee on Culture and Education. A.Sport and Education As early as 1997 the EP asked the Commission to organise a European Year of Sport, which resulted in the establishment of EYES 2004. In November 2007 it returned to this question on adopting an owninitiative report, drawn up by Hungarian MEP Pl Schmitt, on sport and education, which emphasizes the importance of values transmitted by sport such as self-discipline, challenging personal limitations, solidarity and respect for others. Parliament called on Member States to promote body awareness and health through a higher degree of integration between physical education and academic subjects in school. Prior to this, the EP commissioned a in the EU from academic experts. B.Drug-Taking The EP is very concerned by doping in both professional and amateur sport and strongly supports the Commission's plan to intensify cooperation to combat doping at international level. In November 2004 the Committee on Culture organised a public hearing designed to draw attention to the subject. In July 2008 it heard an academic expert on the . C.Women's Sport

The European Parliament has also called for greater recognition of the specifically female dimension of sport, in terms of both practice and access, and has called on the European Commission to support the promotion of womens sport. D.Professional Football In May 2006 the EP organised a joint public hearing on Professional Football.. Subsequently, in March 2007, Parliament adopted an own-initiative report, drawn up by Belgian MEP Ivo Belet, on the future of professional football in Europe, where it underlines that greater legal certainty is needed in the sector, avoiding that its development continues to be determined on a case-by-case basis by the ECJ. The report also stresses the importance of fostering young talents and promoting better balanced competitions. It therefore supports UEFA measures to encourage the training of young players by requiring a minimum number of home-grown players in club squads (see above) and advocates the introduction of a cost control system as a way of enhancing financial stability and the competitive balance between teams. The European Parliament has also been concerned by incidents of racism in professional football. In May 2006 it adopted a written declaration calling on UEFA to ensure that referees have the option, according to clear and strict guidelines, to stop or abandon matches in the event of serious racist abuse. E.The White Paper on Sport In May 2008, Parliament reacted to the White Paper on Sport on adopting a report drawn up by Greek MEP Manolis Mavromatis (P6_TA(2008)0198), which stressed the need for the EU to only complement the actions of Member States in the sports field and to respect the autonomy of the sports movement. Parliament also called for more consistency and legal certainty in EU policy, suggesting the setting up of a "structured partnership and dialogue between the Commission and the sports movement".

Gonalo MACEDO 07/2008