Clash between socio-cultural and single market coalitions “currently a draw”

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If approved, the Constitution will be the first time an EU treaty has included an explicit reference to sport. A Danish sports lawyer talks EURACTIV through the legal implications for the embryonic European Sports Policy.

Lars Halgreen is a partner at a Danish law firm. He has written a book entitled ‘European sports law – a comparative analysis of the European and American models of sport’. He is also an arbitrator for the Court of Arbitration for Sport.

Stakeholder consultations on the use of the new sports article in the Constitution (if approved) are beginning to heat up.

The word ‘sport’ appears in an EU treaty for the first time with the EU’s Constitution. What do you see as the relationship between the European Year of Education through Sport (EYES) and the future use of this new sports article?

The bracket in which the EU has placed sport in the new article clearly shows that the emphasis has been put on sport in the context of education and vocational training. So it could certainly be argued that this was a natural continuation of that year. 

If necessary there could be some kind of special remedy or tool through which to promote a special interpretation of sport in a competition or sporting matter. Currently it is done in a way that sport is put in the youth and education bracket. I think that the sports article should also be interpreted in that light. Strengthen the ties between education and sport has been the aim. The Commission wants to show that it is concerned with the physical and moral integrity of young sports persons so of course that’s the approach that will be carried forward from the year.

So effectively what is being said is that the Commission should keep its hands off sport? 

What kinds of signals are actually sent by the reference to sport in the Constitution will of course be interesting to watch. I have tried to analyse the arguments used by the Commission whenever dealing with sport and competition law. The social and cultural card has been played a number of times. Social and cultural reasons have been given for not doing this or refraining from that. Reading the new article carefully it is difficult to say that social and cultural reasons are stated explicitly.

One could say that the social and cultural fraction has not really won with the present article because there’s no mention of a social or cultural dimension in sport. There is an educational dimension in sport and maybe a physical or moral dilemma in sport, but it cannot be said that the social and cultural dimension is a buzzword that has been written into the new treaty. 

Whether that will change the approach, well you can argue both ways. You can say that you had a new treaty and nothing was mentioned about the social and cultural dimension of sport so we need to have some statute law. Or you could say we’re just going to continue the path that we have already trod over the last five or six years and nobody has really questioned that. So it depends on how far you can push that argument when the courts and when the ECJ are called to make a ruling. 

On the new sports article, what do you see specifically as the pressing EU problems in which the Commission will take initiatives?

First of all I think that the article was necessary after the tremendous political involvement in anti-doping measures both taken by national states but especially the co-ordinating role of the EU after the 1998 Tour de France – the whole World Anti-Doping Agency (WADA) code, the funding of EU initiatives. I think that many in the Commission and institutions as such felt that it was difficult to use some other article as a legitimate justification to throw money that way, so I think with the wording of the new article there is at least a strength and legitimacy in spending money on anti-doping measures. 

Funding for the fight against paedophiles in sport – the morale and physical integrity of young sports people – could also be something that is justified with the sports article. There would at least be an urgent need for initiatives that have already been set in motion. You now have a crystal clear authorisation to spend money based on that article. 

When you refer to the fight against paedophiles in sport, do you mean within volunteer activities?

Yes. Maybe it is a little bit far-fetched, but it could be argued that if there were some kind of co-ordinated action against paedophiles in amateur youth sport, there would at least be some way that you could justify this from a budgetary perspective by referring to the wording of the new treaty. This is something that I have discussed not that long ago. I think that the article uses a lot of great words such as ‘promoting the European dimension of sport by promoting openness and fairness in competitions’. But what does that actually mean when it comes to it? 

Does it mean for instance that UEFA’s licensing system for clubs does not promote openness? Is that what you want to strike out? I doubt that very much. I think that at least the article represents a compromise in the sense that you have fractions that wanted to have a very broad; almost a ‘carte blanche’ exemption for sport and you had more traditionalist fractions who were not interested in giving the big sports businesses more lenient treatment than other branches of business in Europe.  

Everyone ended up agreeing on what was already a consensus approach – namely the fight against doping. But the other parts of the sports agenda were so sensitive that you there was no real majority to say anything definite and specific. Respecting the structures of sport was another one. It has a ring to it that you are trying to protect the ‘European model of sport’, that you do not feel that the federations per se are a misuse of a dominant position. Something like that could of course be interpreted, but it is still pretty vague when it comes to reading the fine print. 

In the French Presidency conclusions after the Nice Summit there is a very strong text that says that the European Council stresses its support for the independence of sports organisations and their right to organise themselves through appropriate associate structures. This relates to the whole idea of not butting in on how the federations set up national teams. Some may of course interpret the wording of the structures of sport as saying this is sort of the natural follow up on the Nice declaration. But it doesn’t really say that in so many words. You have to interpret that a little bit.

Do you see the EU featuring in future legal problems relating to girls or women being prevented by their particular cultures from taking part in sport? Do you see a role for the EU in relation to sport and disabled people?

These are definitely some of those areas where, through the consultations that have been going on between the Commission and the sports organisations, you could have – and this is the strength and weakness of soft law – a very handy tool in making consultations and setting up best practices and based on those experiences say ‘we do not believe that it’s in European interests to have discrimination against disabled people or gender discrimination’. 

I personally believe that you could probably also use other existing articles if you wanted to eliminate such behaviour. But perhaps exchanging best practices is a way to at least reach some kind of common understanding with the established sports world so that you don’t have this interference in the independence and autonomy of the sports organisations. On the other hand, you say to them we have the authority to do something about it if we feel that you are not complying with our best practices. Maybe that will be the outcome in the future.

Turning to the ‘social and cultural coalition’ and the ‘single market coalition’ which you refer to in your book comparing the European and US models of sport. Which key actors would you put in those two categories and who would you see as winning the battle at the moment?

It’s a good question because you could say with the adaptation of the new article one should say, well, there must be a winner and a loser in that battle. I think as I said to you before, it’s a draw. It’s not really very clear to see how the two fractions will come out of this new sports article because it doesn’t really say that much about how sports should be treated. Maybe you can say that the social and cultural fraction has the upper hand with this reference to the special structures of sport. 

On the other hand, when you see the decision as in the latest ECJ’s advocate general’s opinion in the case of the Russian football player, you have a very clear emphasis on fundamental freedoms when it comes to a footballer’s right to practise their sport. And if you go back to the European Court of Justice’s Kolpak ruling, the court makes a decision favouring fundamental freedoms. The court ruled that a Slovak handball player who was living and working in a member state [Germany] should not suffer discrimination by being counted as a foreign player in the German handball federation’s quota system.

So it’s a little bit of a mixed picture. You have certain areas where the traditionalists – the single market people – have very strong positions. And then you have others that are more dominated by the social and cultural aspect. 

One of the things that I believe will be the socio-cultural fraction’s strongest area will be that of state aid. It is not something that I touch upon very much in my book, but I do believe that it is acceptable if you can come up with some kind of programme where you pour money into even professional sports enterprises but do it in a way that you also promote education and training of young people. I think that you can use both the new article and the social and cultural card. They are both strong arguments. 

It is difficult to know what to say, for instance, about the football transfer rules. As I write in my book, I am very sceptical about the legitimacy of UEFA’s new training compensation rules, because I feel that at the end of the day they are disproportionate in the eyes of the court as you can always come up with different ways of redistributing revenue streams to promote the training of young players. On the other hand, I am quite certain that you will also see the social and cultural agenda being pushed pretty far by saying, well, there maybe a disproportionate element here but on the other hand we believe that this is something that will help create or promote the training of young players in smaller clubs. Something like that has already been said in the Bosman case, but at that time the rules were not as sophisticated. But that is just one example of where there might be a difference in the way in which the different areas will be treated. 

So the socio-cultural coalition would want to maintain the system as it is with the training compensation rules as they are?

I think so, yes. I think that might be a buzzword for them to say that it is important to have infrastructure football where you have the smaller clubs training young people and they should have an incentive to go on doing that socially important work. It doesn’t really matter that much whether it is actually a hindrance or there is some problem with the free movement of those players. I am not saying that this will be the conclusion, but you can easily imagine such an argument being made. Especially after the socio-cultural argument has been used in a number of other cases. 

At the moment this applies to football. Would they also want to apply that to other sports as well?

Yes. One could argue that if you look at the wording of the Bosman case, at least it is not totally hollow. But, of course, it is something that should be done with some considerable ease. There is reference there to the considerable social importance of sporting activities and in particular football in the community. So the court actually recognises that there is the social importance of sport and that’s why they also say that you can actually claim that these considerations are legitimate. The aim of maintaining balance and preserving a certain degree of equality. Those kinds of considerations are considered legitimate. But only because of the social importance of sport. 

If it had been, for instance, that you wanted to have a system among lawyers, where a young lawyer could not leave unless the new law firm paid some money to the new lawyer, I think that you would not be in any doubt as to how that case would turn out. If I trained a young associate for three years then the employee wanted to leave and I didn’t get any return on my investment, could I say to him, ‘I will keep your certificate here in my draw until your new employer gives me some money for my training’. 

Most people smile when I use that example, but basically that’s what happens in football clubs. I trained this young guy and now he wants to go to Barcelona. Now Barcelona should pay me for my effort. It’s not a common feature in other parts of the labour system. But it is recognised, at least to a certain degree, in the world of sport. 

And who would you identify as the main actors from the socio-cultural and single market coalitions? 

I think it’s difficult to say who the actors are. I think that this is again a very personal observation. I think that the Nordic countries, the northern European countries are much more hesitant to make very large exceptions to the rules without some crystal clear statute law. I think that this idea that you should treat sport in a different way had to be really embedded in the treaty, otherwise it would not be sustainable. But it’s a mixed picture because in other areas they might have a more socio-cultural view that Brussels should keep its nose out and give AC Milan or Manchester United preferential status. 

They should be able to do whatever they want in terms of negotiating television contracts, sponsorship contracts. They should be able to trade players or do whatever they want. And we should close one eye to the fact that they are listed on the stock exchange and are multi-million euro businesses. I think that in those circumstances, rather than the Nordic governments, it is the other governments that would tend to have a more preferential view towards those businesses. 

On the volunteer side of sport, do you feel that there is a strong argument for professionalising volunteers?

I think that you are touching on something that is a very important part of the economic of European sport. The top professional clubs make a lot of money. Yet, if they did not have the support of volunteers from the mother clubs, the original amateur branch of that club, they would not be able to make ends meet. 

Again, I know Danish sport better than other sports, but it would be very difficult for Brondby football club if it did not have volunteers from the original mother club to serve sandwiches, hotdogs and soft drinks at the stadium and be able to set up a security system. If all these people were on minimum wages, there would not be a single euro surplus. It would all go towards wages. So there is this mix of the two systems. 

Maybe it is a listed company on the Danish stock exchange but it is heavily dependent on the volunteer work of the original mother club. The professionalisation could of course be a clear way to set things apart, but I think that, at least in Europe, we have a long way to go before you could have any kind of sport totally dependent on minimum wage workers.

But surely, in football where there are enormous amounts of money being thrown around, there should not be any  unpaid volunteers?

I think that from an economic point of view you are right, but on the other hand, there is a tremendously important socio-cultural dimension in nourishing the club and fan culture. It is important to make sure that the club has a secure position within local community and to maintain a sentiment that there is not just money involved, but something special attached to an affiliation with the club. In that sense, volunteer work can be a good way to ensure this kind of socio-cultural dynamic. 

Maybe that seems clichéd, but there is no doubt in my mind that being an Arsenal supporter is more than just following your team’s results. You are also part of the Arsenal family. You see yourself as maybe a part of a tribe, and if you can contribute to the wellbeing of that tribe through voluntary work then you are willing to do that. I think that even the most professional of clubs would take advantage of that sentiment. Not in a bad way, simply by saying this is a good business solution to depend on voluntary work. Firstly, it doesn’t cost anything. Secondly it draws supporters closer to the club. 

Read the shorter version of this interview

 

Selected excerpts from the ‘sports article’ in the new Constitution is Article III-282 (Editor’s note: EURACTIV’s italics):

The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sportits structures based on voluntary activity and its social and educational function.

(g) developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomenespecially young sportsmen and sportswomen.
2. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.

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