Editor’s 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.
1. EU law and the CAS case-law
Bearing in mind these questions, it is possible to
affirm that under EU law, the specificity of sport
i) refers to the inherent characteristics of sport that
set it apart from other economic and social activities and which have to be
taken into account in assessing the compatibility of sporting rules with EU
ii) under EU law these inherent characteristics of
sport must be considered on a case by
case basis, per the Wouters test
as developed by the ECJ in the Meca Medina ruling.
Both aspects can be found in the CAS case-law too,
although the CAS case-law shows some remarkable differences and peculiarities. From
a general point of view, the application of the principle of specificity of
sport in the CAS case-law represents an aspect of the more general issue
related to the application of EU law by the CAS. However, the purpose of this
paper is not to fully examine if and to what extent the CAS arbitrators apply
EU law rules on free movement and competition; rather, the aim is to analyse
the way the CAS deals with the concept of the specificity of sport,
highlighting similarities and differences compared to the ECJ.
Taking for granted that ‘a CAS panel is not only
allowed, but also obliged to deal with the issues involving the application of
as far as the compatibility of sporting rules with EU law is concerned the CAS
case-law shows different degrees of engagement. For instance, in the ENIC
award concerning the so-called UEFA integrity rule, the CAS panel went through
a complete competition-law analysis in perfect harmony with the Wouters et al.
ruling by the ECJ.
On the contrary, in the above-quoted Mutu case, the issue of
compatibility of the FIFA’s transfer regulations with EU competition law was
analysed in a rather simple way, merely stating that the FIFA rules at stake
were not anti-competitive under EU competition law without giving any reason to
support this conclusion.
More recently, in the Galatasaray
and Milan A.C. awards, concerning the
UEFA’s financial fair-play regulations, the CAS applied a detailed analysis of EU competition
law. However, in both cases, according to the CAS the proportionate character
of sanctions listed in the UEFA’s financial fair-play regulations cannot affect
the evaluation of the legitimacy of these regulations under Art. 101 TFEU. This
conclusion represents a clear breaking point with respect to the ECJ case-law,
according to which the evaluation of the restrictive effects of a rule
necessarily presupposes the analysis of the proportionate character of the
sanction imposed in the event of a violation of that rule as well. In
regard to EU free movement, the CAS case-law tends to be less analytical in
terms of the principle of proportionality. For instance, in the RFC Seraing award which concerned both EU free movement and
competition law, the CAS panel mainly focused on the legitimate objectives of
the contested rule (FIFA’s ban on Third-Party Ownership – TPO), merely affirming
that the restrictive measures under EU free movement were justified and
inherent in the pursuit of those objectives.More...
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...
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...
Pursuant to Kelsen’s famous pyramid, the authority of norms may be
ranked according to their sources: Constitution is above the Law, which is in
turn superior to the Regulations, which themselves stand higher to the
Collective Agreement etc…Under French labour law, this ranking can however be
challenged by a “principle of favourable treatment” which allows a norm from a
lower rank to validly derogate from a superior norm, if (and only if) this
derogation benefits to the workers.
April 2014, the Cour de Cassation (the French Highest Civil Court) considered that
these principles apply in all fields of labour law, regardless of the
specificity of sport. In this case, Mr. Orene Ai’i, a professional
rugby player, had signed on 13 July 2007
an employment contract with the Rugby Club Toulonnais (RCT) for two sport
seasons with effect on 1 July 2007. More...