"There is a factual antagonism between sports regulation and the notion of European identity," writes Muriel Féraud-Courtin, a lawyer at French law firm TAJ.
The following contribution was produced by Muriel Féraud-Courtin, a lawyer at French law firm TAJ.
"In fact, for centuries, sporting competition has implied opposition between towns, regions or nations and thus the promotion of local or national identity, whereas the European construction tends to the abolition of frontiers within the European Union, of discrimination based on nationality and thus to the creation of a veritable 'European identity'.
Numerous sport regulations relate to the question of nationality: there are many rules governing access to national selections and regulations aiming at setting up quotas of national or local players in the teams. In such conditions, can we today really speak about a European identity when reading the rules governing European sport?
In the field of professional sport, the case law of the European Court of Justice upset the world of sport in 1995 when it strongly affirmed the principle of freedom of movement of professional sport workers within the European Union in its famous Bosman 1 case. This decision prohibited any discrimination based on nationality. Pursuant to the principle of freedom of movement of persons, it was possible to see European football teams with eleven players, not one of whom had the nationality of the club location.
European sports organisations estimated that such a situation was excessive and tried to preserve a sort of local basis for the clubs taking part in their competitions. UEFA imagined the rule called 'home-grown players', t adopted in 2005. and it has been applying it to the national federations taking part in the competitions it organises since 2006.
The question which arose then was […] whether this rule was in compliance with European law, and particularly with the principle of freedom of movement of persons set out by Article 39 of the Treaty. Further to the study we were entrusted with by the European Commission on this question, the Commission has concluded that the rule set forth by UEFA did not contain any discrimination based on nationality and could be considered as creating an indirect discrimination.
[…] This was not prohibited by Article 39 of the Treaty as it pursued three legitimate objectives complying with the Treaty: the training of young players, the preservation of a certain financial balance between clubs and the preservation of the uncertainty of sport results. The Commission specified that this rule would only be efficient if it was combined with other measures aiming at reaching the above mentioned objectives.
However, this rule is not the universal solution as it does not settle anything regarding amateur sports, where discriminations still exist. In this area, few concrete actions have been undertaken to date. The European Commission recalled its objectives and a beginning of action in its White Paper on Sport of July 2007 but did not hold then the required competence to act.
The days of these discriminations seem however to be numbered [given that] the European institutions have acquired, under the Lisbon Treaty, direct competence in the field of sport, and we should witness the emergence of a European sporting identity in the years to come, both for professional and amateur sport."