Clear definitions – a prerequisite for coherent EU sport policy

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The up-coming EU white paper on sports should give a clear definition of sport and of its multiple dimensions, clarifying the different EU approaches to professional and amateur sport, says researcher Borja García.

Interviewed by euractiv.com Borja García, a researcher at the Department of Politics, International Relations and European Studies at the Loughborough University in the UK, explains his view on the priorities for the reform of the European football. He also gives his guess on the result of the Oulmers/Charleroi case and his expectations for the Commission’s white paper on sports.

In your recent 
policy brief
 on EU regulation of professional football since the Bosman ruling you write that the EU has two approaches towards football: a legal and a political one. What do you mean?

The EU has been involved in the regulation of sports mainly as a result of the increasing commercialisation of professional sport over the past 20 years. This has led to treating sport as any other economic activity, therefore applying the laws governing the single European market. This is a legal approach, because the debate was on whether EU law could be applied to professional sport, not on how to do that. The answer to this debate was clearly provided by the European Court of Justice (ECJ) in 1974 and other subsequent rulings: Yes, EC law shall be applied to sport as an economic activity; hence creating another spill-over from the single market. 

However, after this question was settled, the debate moved on to how EC law shall be applied to sport. This is the political approach to sport, because the regulatory debate has been politicised. This is nothing unusual, as most regulatory policies tend to get politicised over time. This political approach does not rely only on legal technicalities, but on political arguments about the role of sport in society and the necessity to preserve it as something ‘specific’ or ‘special’. As time has gone, the political debate has permeated the legal approach and, nowadays, the political approach has the upper hand. This can, however, change very quickly, for example with the ECJ ruling on the Oulmers case.

The 
Independent European Football Review
calls for major reform of the European football. Where should one start from? What should be prioritised? 

First of all, it is necessary that all stakeholders involved in the governance of football have an understanding of the problems they are facing. It is paramount that they understand that the Bosman ruling is not the cause of European football’s problems. 

It may have been an accelerator of some worrying tendencies, but it is not the cause. It is the massive commercialisation and enormous influx of money from TV rights that is at the root of the problems, for it is causing both corruption scandals (see Italy, Germany, Belgium…) and an internal fight for power in the governance of football. 

Therefore, priority number one should be to ensure that football governing bodies operate to the highest standards of governance. For that, representation, democracy and transparency need to be enhanced at all levels. It is not fair to single out a particular stakeholder, as they all need to improve. Certainly, some organisations, such as UEFA or the English FA are way ahead of the others since they have been focusing on good governance for some years. They could lead the others towards an improvement on the governance of football, because without that, it will not be possible to let football self-regulate without interference of public authorities. 

A second priority should be legal certainty. In exchange of a genuine effort to improve governance and management, football should get a good degree of legal certainty. This means that the rules agreed commonly by the football family, e.g. collective selling of TV rights, are not in danger of being challenged before the courts. In this respect, it would also be useful if the European Commission could manage to adopt a common view towards football among its own different DGs. However, it should be noticed that this legal certainty has to be preceded by a real commitment of the football family to improve its levels of governance. It is not the other way around. 

Should football be exempted from EU competition rules? Arguments for and against? 

The answer to this question, from my point of view, is relatively short. No, I do not think football should be exempted from EU competition rules because professional football is an economic activity with high levels of turnout and, moreover, the impact of professional football on other markets, such as the TV market is extremely important. As long as football is willing to operate as a business, it has to be prepared to be treated as such. Having said that, I agree that the economics of professional football have some specificities. For example, in football there is a need for a rival. Whereas Opel may be happy if Renault disappears, Manchester United needs Liverpool to maintain the competition, or Barcelona needs Real Madrid. 

The ECJ, in Bosman ruling, recognised two aspects of the specificity of football: the uncertainty of competition and the training of young athletes. I think there are some others, but this is just to show that the EU is aware of the specific nature of sport. Therefore, the application of competition policy needs to be tailored to the characteristics of football as a market. For example, allowing collective selling of TV rights, something that the Commission is happy to accept since the Champions League Case in 2001. 

How do you think the Oulmers/Charleroi case will affect football in the EU? 

The Oulmers case has the power to undermine the ‘political’ approach of the EU towards football in favour, again, of the legal approach. A ruling favourable to the clubs will highlight the dominant position of governing bodies towards the clubs. This may translate in a redistribution of power in the governance of the professional game at European level. It has to be said that clubs have already the power to organise their competition through associations such as the Premier League or Lega Calcio. Oulmers could enhance the power of clubs vis-à-vis UEFA and FIFA. Another consequence would be the diversion of money to the clubs. 

FIFA and UEFA manage the economic benefits of the World Cup and the Euro. In the case of UEFA, the EURO is the main source of funding for its solidarity programs, therefore if money has to be given back to the clubs, solidarity programs will suffer. Having said that, my personal opinion is that the ECJ is not going to rule in favour of the clubs. Oulmers is not going to be a Bosman 2 and I think that the G-14 is pursuing the wrong strategy here

What role and impact do you think the Commission’s upcoming white paper on sports will have? What would you like to be taken into account in it? 

It is difficult to say until we see the content of the white paper. The white paper is mainly addressed at the political level, since the EU has no direct competence on sport. The intention, as I see it, is to have a political debate within the college of commissioners on the role of sport in the EU and in European society. 

The ultimate goal, of course, would be the mainstreaming of sport into other active policies of the EU, such as health (fight against obesity), social policy (fight against racism) and so on. In that, I share UEFA’s view that sport (and football) is probably one of the best tools at the disposal of EU policy-makers to achieve certain policy goals. Politicians need to realise that and to engage in a partnership with sports authorities for the good of the game and for the benefit of the whole society. 

The problem is that a similar document to the whitepaper, the so-called Helsinki Report on Sport, was adopted in 1999 and it is now gathering dust, nobody seems to remember that report is an official position of the Commission. I hope the white paper has a better future. 

As to what should be taken into account, I think it is paramount that, first of all, we get a clear definition of sport and its multiple dimensions. It is really incredible that after so many years of policy debate there is no single EU document with a definition of what sport is. 

Yes, there is the European Model of Sport, but this is not a definition, this is a description. So far, the only official definition of sport can be found at the Council of Europe’s 1992 European Sports Charter. The white paper needs to come with a definition in which it identifies the different dimensions of sport. Professional sport is very different from amateur sport – they have totally different dynamics. When the EU talks about sport, to which dimension it is referring? How different should the policy be towards professional sport and amateur sport? It will be very difficult to formulate a coherent policy until this is clarified. 

Secondly, I think that the importance of sport as a tool for public policy needs to be taken into account and the role that governing bodies can play in that. Finally, I think that there is a need to provide standards for good governance in sport

What impact will, if adopted, the future European Constitution have on sports in the EU? 

The Constitution proposed a very low level of competencies on sport for the EU. It was just a supporting role, so sport would remain a national competence. Of course, the inclusion of sport would make it easier for the commission to work on sport, as it would then have a legal base. 

The success of the 2004 European Year of Education through Sport demonstrates that there are many possibilities to engage the citizens into sport, which is a good thing. The main consequence would be that the European sports ministers could now meet officially, and they could implement their agenda focused mainly on amateur sport, volunteerism and the fight against doping. Sports authorities could co-operate to a better standard to improve the governance of sport in Europe, both at professional and ‘sport for all’ level.

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