note: Stefano Bastianon is Associate
Professor in EU Law and EU sports law at the University of Bergamo and lawyer
admitted to the Busto Arsizio bar.*
The so-called specificity of sport represents one of
the most debated, if not the most debated, but still undefined issue under
European Union (EU) law. A noteworthy peculiarity is that the specificity of
sport is frequently mentioned in several legislative and political documents
issued by EU institutions, however it is not expressly referred to in any
judgment by the European Court of Justice (ECJ).Conversely, the Court of
Arbitration for Sport (CAS) case-law on Art. 17 of FIFA Regulations on status
and transfer of players (RSTP) has repeatedly and expressly referred to the
specificity of sport. Apparently, the concept of
specificity of sport has different meanings and purposes in the ECJ and CAS
jurisprudence. In this blog (divided in two parts), I will try to analyse those
two different meanings and to what extent the CAS case-law is consistent with
the concept of specificity of sport as elaborated under EU law. More...
note: Thomas Terraz is a third year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
Christmas has come very early
this year for the EU sports law world in the form of the Court of Justice of
the European Union’s (CJEU) judgment in
TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the
basis of European citizenship rights and its application to rules of sports
governing bodies that limit their exercise. The case concerned an Italian
national, Daniele Biffi, who has been residing in Germany for over 15 years and
participates in athletic competitions in the senior category, including the
German national championships. In 2016, the Deutscher Leichtathletikverband
(DLV), the German Athletics Federation, decided to omit a paragraph in its
rules that allowed the participation of EU nationals in national championships
on the same footing as German citizens. As a result, participation in the
national championship was subject to prior authorization of the organizers of
the event, and even if participation was granted, the athlete may only compete
outside of classification and may not participate in the final heat of the
competition. After having been required to compete out of classification for
one national championship and even dismissed from participating in another, Mr.
Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German
national court. The national court submitted a request for a preliminary ruling
to the CJEU in which it asked essentially whether the rules of the DLV, which
may preclude or at least require a non-national to compete outside
classification and the final heat, are contrary to Articles 18, 21 and 165
TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the
basis of nationality against European citizens exercising their free movement.
The underlying (massive) question here is whether these provisions can be
relied on by an amateur athlete against a private body, the DLV.
Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an
entirely different angle. Instead of tackling the potentially sensitive
questions attached with interpreting the scope of European citizenship rights,
the opinion focused on the application of the freedom of establishment because
the AG found that participation in the national championships was sufficiently
connected to the fact Mr. Biffi was a professional trainer who advertised his
achievements in those competitions on his website. Thus, according to the AG,
there was a sufficient economic factor to review the case under a market freedom.
The CJEU, in its decision, sidelined this approach and took the application of
European citizenship rights head on.
The following will dissect the
Court’s decision by examining the three central legal moves of the ruling: the
general applicability of EU law to amateur sport, the horizontal applicability
of European citizenship rights, and justifications and proportionality
requirements of access restrictions to national competitions. More...
Editor’s note: Thomas Terraz is a third
year LL.B. candidate at the International and European Law programme at The
Hague University of Applied Sciences with a specialisation in European Law.
Currently he is pursuing an internship at the T.M.C. Asser Institute with a
focus on International and European Sports Law.
To many it may seem obvious that athletes in a national
championship should only be able to participate if they have the nationality of
the relevant state. The Dutch Road Cycling National Championships should have
Dutch cyclists, and the German Athletics Championships should have German athletes
and so forth. However, in reality, foreign competitors are allowed to
participate in many national championships in the EU, and there is a wide
discrepancy between the rules of national sport governing bodies on this issue.
There is no unified practice when investigating this point by country or by
sport, and rules on participation range from a complete ban on foreign
competitors to absolutely no mention of foreign athletes.
Thus, the question arises: should foreign athletes be able to participate in
national sport championships?
The Court of Justice of the European Union (CJEU) will soon
be required to provide an, at least partial, answer to this dilemma as a result
of an application for a preliminary
ruling. A German Court has
referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v
Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU
citizenship rights and in particular, the requirement of non-discrimination on
the basis of nationality, should be applied to non-nationals wishing to
participate in an athletics national championship in Germany. In the meantime,
the Advocate General (AG), who provides a non-binding opinion to the Court
before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants
based on EU citizenship rights and urges the CJEU to instead review the case on
the basis of the freedom of establishment.
This blog will dissect the AG’s opinion to assess the main
arguments put forward in relation to freedom of establishment and EU
citizenship. Furthermore, it will weigh the ramifications this case may have on
the boundaries of EU law in relation to sport. To fully appreciate the AG’s
opinion, it is necessary to first discuss the intriguing factual and legal
background colouring this case. After all, this will not be the first time the CJEU
faces thorny issues concerning discrimination on the basis of nationality and sport. More...
Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
The first part of this series looked at the legal framework in which FFP
sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps
legal, perhaps not. Given the significant financial
interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015
accounts – and the close correlation between clubs’ spending on wages and their
success on the field, a legal
challenge to the legality of FFP’s ‘break even’ requirement (the Break Even
Requirement), which restricts a particular means of spending, was perhaps
And so it followed.
Challenges to the legality of
the Break Even Requirement have been brought by football agent Daniel Striani,
through various organs of justice of the European Union and through the Belgian
courts; and by Galatasaray in the Court of Arbitration for Sport. As an
interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s
most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...