Comment on Spanish ‘amateur sports restrictions’ case

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

A letter of formal notice was sent by the
Commission on 13 October 2004 asking Spain to look into
claims that the Spanish Football Federation’s amateur
sport restriction discriminate against EU nationals. Academic
and author of ‘Sports Law and Policy in the European
Union’ Dr Richard Parrish comments.

Comment on the Spanish Case (Commission
Press Release IP/04/1222)

It appears from Press Release IP/04/1222
that the Commission is concerned that a
worker’s right to be joined by their
family in the host country, and the integration
of that family into their new surroundings, may
be undermined by rules such as those adopted by
the Spanish Football Federation. These rules
prohibit the issuing of amateur licences to non
Spanish nationals. In Walrave (1974), Dona
(1976) and Bosman (1995) the European Court of
Justice found that Article 39 (free movement of
workers) applies to sport in so far as it
constitutes an economic activity. Therefore,
the fact that the sport is ‘amateur’
is inconsequential if it involves a significant
economic component. The rights of free movement
would then be extended to the worker. 

However, the Commission’s concern
appears to relate to the social advantages
enjoyed by the worker’s family. Although
the Treaty is silent on this, the general
principle of non discrimination is contained
within Article 12 and secondary legislation
does seek to ensure that social advantages
conferred on the nationals of the host state
are extended equally to all EU nationals
legally resident within that country. In this
connection, member states are under an
obligation to facilitate the entry of the
dependent relatives of the worker. As the rules
adopted by the Spanish Football Federation are
clearly discriminatory, the issue therefore
rests on whether the right to take part in
amateur sport is considered a social advantage
(benefit) and to whom this benefit extends. In
previous case law the ECJ has tended to adopt a
wide interpretation of what constitutes a
social advantage by consistently arguing that
social advantages should be interpreted as
meaning all advantages which, whether or not
linked to a contract of employment, are
generally granted to national workers because
of their objective status as workers or by
virtue of the mere fact of their residence on
the national territory, and whose extension to
workers who are nationals of other member
states therefore seems likely to facilitate the
mobility of such workers within the EU.
Furthermore, the Court has held that access to
leisure activities is a corollary to freedom of
movement. 

It is not therefore unreasonable to suggest
that a prohibition on undertaking everyday
social activities, such as playing amateur
football, is an impediment to free movement.
Such a restriction not only runs contrary to
the spirit of Articles 12, 39 and secondary
legislation, it also contradicts the EU’s
claim to be fostering a ‘people’s
Europe’ underpinned by European
citizenship. Furthermore, as the 2000 Nice
European Council Declaration on Sport
commented, ‘sport is a human activity
resting on fundamental social, educational and
cultural values. It is a factor making for
integration, involvement in social life,
tolerance, acceptance of differences and
playing by the rules…. sporting activity
should be accessible to every man and woman,
with due regard for individual aspirations and
abilities, throughout the whole gamut of
organised or individual competitive or
recreational sports’. In addition, the new
sport provisions contained within the
Constitutional Treaty permit the EU to adopt
supporting measures which develop ‘the
European dimension in sport’. Given the
legal position contained within primary and
secondary EU law and given the above statements
of political will, it would be anomalous for
nationality restrictions in amateur sport to
persist.  

Dr Richard Parrish

Department of Law

Edge Hill College

UK

 

Author of: Sports Law and Policy in the
European Union, Manchester University Press
(2003). 

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