Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

The result of the Brexit referendum on 23 June 2016 took the European Union (almost) by surprise. A lot has been said and written about the impact of the United Kingdom leaving the EU. As in all other areas, the British sport sector will also face the effects of the modification of the relationship between the EU and its (probable) former Member State, the UK. It is nearly impossible to foresee all consequences as the UK has not even triggered article 50 TFEU yet to officially start the exit negotiations. However, as the UK position toward the EU will change in any case, this two-part blog aims to examine the main practical implications of such an exit for the UK, but also for the EU, in relation to the actual application of EU law in sport and the EU sport policy.

Unless stated otherwise, the use of the terms Brexit in this blog should be understood as a complete exit of the UK from the European Union. This blog focus in particular on this worst case scenario and its consequences for UK sport. However, it is highly improbable that the future Brexit negotiations with the EU will end up without some kind of special agreement between the two parties the first of which being an EEA type of agreement with full access to the internal market and applicability of EU law. 

The first part of this blog will examined the consequences for UK sport in terms of access to the EU internal market and the applicability of free movement principles. The second part is focused on specific impacts with regard of others domain of EU law for professional and grassroots UK sport. 

Part 1. EU free movement and the internal market

The EU internal market and its free movement of people declination was at the centre of the Brexit referendum. The potential consequences for the Premier League and professional footballers have been commented upon thoroughly elsewhere. Yet, Brexit’s impact is not restricted to British sport’s leading product, such as the Premier League, nor solely the freedom of movement provisions.

The controversy: free movement of sportspeople

The right to free movement is one of the fundamental freedoms guaranteed by the EU to its citizens and it is at the core of EU treaties. It means that any direct or indirect discrimination based on nationality is prohibited (article 18 TFEU), leaving EU citizens free to exercise their right to move freely and reside within the territories of the 28 EU Members States (article 21 TFEU). These rights apply to both professional and amateur sportspeople, and Brexit will have consequences for them whether they are British citizens or from other Members States.

First, in relation to professional and semi-professional sportspeople, when looking for example at consequences of Brexit on the Premier League, it is the principle of free movement of workers (article 45 TFEU) that is at stake. It should be noted that Brexit will impact not only footballers but also all professional athletes that are considered as “workers” within the meaning of the Treaty. In this context, “workers” means those who are gainfully employed (as stated in 1976 by the European Court of Justice - ECJ - in the Donà and Mantero case, 13/76). These athletes might be rugby or basketball players in a professional clubs or cyclists in a team to give a few examples. Also, other individuals associated with sportspeople may rely on the provisions of free movement of workers, such as doctors, physiotherapists, stable staff, coaches or administrative staff. 

Free movement also currently applies to professional and semi-professional sportspeople that are not “workers”. Freedoms of establishment (article 49 TFEU) and provision of services (article 56 TFEU) apply to athletes that are self-employed (for example tennis players, sailors or horse riders) or to instructors, coaches, or physical trainers. Sports agents may also rely on both freedoms if they are established in another of the EU’s Members States and/or if they are providing their services during a player transfer for example. To illustrate these provisions with genuine practical cases, you may want to think of a UK tennis player that has established himself in France for training purposes for a long period, or of Italian professional horse rider coming to the UK to provide a couple of hours of training for a master class. These situations are much more common than one believes and Brexit might have an important impact on significant number of people working in the sport sector.

At the time of writing it is impossible to know (or even guess) how events will unfold or what the future position of the UK toward the EU will be after Brexit negotiations. The impact will have to be assessed depending on whether and, if so, how the UK will have access to the internal market. A few UK sports officials have raised their voices to recall, for example, the strong position of British football in Europe and asked for exception regimes for their players. Without intending to sound pessimistic, EU officials have already made it very clear that the UK may not pick and choose how they access the internal market and it is difficult to see how a “sport exemption” regarding free movement of athletes may be granted against any other sectors. A solution might be to implement national UK legislation giving free access to professional players to the UK labour market. A problem will however remain regarding free access to the EU market for UK players as, in that case, there is no obligation for the EU to grant reciprocity. If the professional and semi-professional sport sector in the UK (and in the EU as well for UK players) wishes to still be able to recruit athletes that are EU citizens after the exit as easily as it was before Brexit, it should advocate for an EEA agreement (“EEA type” - which seems inconsistent with the intended aims of the referendum as, in this situation, the UK would retain its access to the internal market but would give up its voting rights). 

In the worst case scenario of a complete exit from the EU, is there any good news for UK sport? British sports federations will be able to implement rules entailing direct discrimination, including introducing quotas of players based on nationality or favouring their own athletes which is, for now, completely forbidden under EU law. On the other hand, the return of visas and work permits between the UK and the EU might lessen the level of competition in national championships as it will hinder exchanges of athletes on both sides. It is quite unsure that this is the best option for British sport. Moreover, one should remember that non-discrimination is also granted to sportspeople coming from non-EU countries under the terms of agreements between the EU and third countries (Igor Simutenkov C-265/03). For example, under the terms of the Cotonou Agreements, it is impossible to impose nationality based quotas for sportsmen from Africa, the Caribbean and the Pacific Group of States provided the player entered the territory of one of the Member States legally, which is a strict condition. This principle implies that a player coming from one of the countries covered by that agreement is not considered as a “foreign” player if quotas for such players are in force in that sport (this is the case for Rugby Union for example). It also means that the UK not only has to renegotiate its relationship with the EU but with all other non-EU countries that are, for now, covered by these association or partnership agreements. British sport will need to be cautious about it.

It should also be noted that Brexit will lead to the end of the mutual recognition of professional qualifications (see directive 2005/36). This principle applies in the sport sector as well whenever the possession of a diploma is legally required; Member States cannot refuse to permit EU citizens from other Member States to participate in a profession if they hold a recognised qualification from their country for working in that profession unless there are substantial differences in the level of qualification or duration of training. This applies to coaches (i.e. ski instructors) or doctors in the sport sector for example. Another very specific example is the European professional card (directive 2013/55/EU, applicable from 18 January 2016) that has been implemented for mountain guides (and physiotherapists) and allows for a simple and rapid recognition of professional qualifications. Consequences might be less important where an international sports governing body sets up its own set of qualifications (think about the UEFA Pro Licence for football coaches).

Free movement provisions likewise apply to amateur athletes. Based on a combined reading of articles 18, 21 and 165 TFEU, EU citizens who participate in an amateur sporting activity by using their right to free movement should not be discriminated on grounds of nationality. It is, once more, nearly impossible to currently illustrate the impact of Brexit with tangible facts but it means that free movement of EU citizens who are amateur athletes will be affected while coming to or from the UK for competition or training purposes. Furthermore, in terms of injuries or accidents while training or competing, it should be recalled that Brexit may affect the European health insurance system. This system gives every EU citizens access to state-provided healthcare during a stay in any of the EU countries under the same conditions as people insured in that country.

Finally, it should be mentioned that Brexit may impact upon the sport sector as it has links to EU citizenship. A complete Brexit will entail that sports supporters cannot travel as freely between the UK and the EU as they used to. Again, a return to a strict visa policy seems unlikely but giving up EU citizenship will have consequences on border and passport controls and on the organisation of sport events in the UK. The UK and the EU will also no longer be entitled to the cooperation organised against violence and hooliganism within the EU (Council Decision 2002/348/JHA, security at international football matches), or, at least, not in the same terms.

The underlying problem: free movement of goods

Free movement of goods is an essential element of the single market (articles 30, 34 and 35 TFEU) and it provides for the prohibition of measures that restrict trade between Member States, including not only customs duties and quantitative restrictions on imports and exports but all equivalent measures. Sports clothing and materials are covered by these provisions. We shall probably enter a period of uncertainty but the future of trade relations between the UK and the EU will be at the top of the agenda as soon as the negotiations start. Also, in order to facilitate free movement, European standards for sporting purposes goods have been set up by the European Committee for Standardization – n°136 - (full list of standards here). This probably exposes the EU to the bureaucratic suspicion but these harmonisations are necessary to facilitate trade between the EU and to ensure a common level of consumer safety. UK/EU negotiations on Brexit will surely and primarily focus on trade agreements which hopefully will lower the risk of a return to full quotas and tariffs obligations. Nonetheless, trade between the UK and the EU will suffer as much in the sport sector as for other sectors and, again, an EEA type agreement would be welcome for both parties. 

One specific category of goods is important for the sport sector, namely the circulation of civil firearms. EU sport shooters have access to a European firearms pass under directive 91/477/EEC on the control of the acquisition and possession of weapons. This means that they can cross EU internal market borders without prior authorisation in order to attend competitions and trainings. Brexit will withdraw the possibility of obtaining that pass which may result in more red tape for sportspeople at the borders.

Finally, free movement also concerns horses which under EU law are qualified of “goods intended for sporting purposes”. This term is used to refer to the set of directives regulating the movement of and trade in equidae at the EU level. Three different directives are in force and may be impacted by Brexit. In turn, this will have severe consequences for the UK as the horse sector, whether for competition or horseracing, is really strong. Identification requirements – name, genealogy and victories – are established by EU law (directive 90/427/EEC and regulation 504/2008/EC) under strict animal health conditions and “regional” quarantine principles in case of disease (directive 2009/156/EEC). Trade of horses and participation in competitions within the EU is subject to non-discrimination and equal treatment principles between horses without distinction based on the Member States of origin (directive 90/428/EEC). This principle applies to the rules of competition, the judging and the prizes awarded for that competition. Some exceptions regarding specific stud-book, regional or traditional competition are possible. Finally, it should also be noted that a European Community code relating to veterinary medicinal products exists to implement the free movement of veterinary products and to prevent animal doping. Re-entry of registered horses for racing, competition and cultural events after temporary export to non-EU countries is also regulated (directive 93/195/EEC). The UK horse sector will have to change its habits (see, for example the reaction of British horseracing authority to the Brexit vote) after Brexit and the movement of horses with the EU will be more difficult as a consequence. However, as a former EU Member State, the UK will certainly negotiate a favourable agreement with the EU even though obligations concerning the arrival from and return to their home countries outside the EU of sport horses is already regulated. Additionally, it will be possible to negotiate bilateral agreements.[1]

The impact of Brexit regarding the rules of the internal market is important and goes further than just football and the Premier League. The push for a trade agreement with access to the EU internal market here has a special importance for UK sport as for the EU. Otherwise, a complete Brexit will surely end up in a difficult step backward alongside a complete reorganisation of national rules.  

[1] Such an agreement – Tripartite Agreement (TPA) – already exists between France, the United Kingdom and Ireland.

Reforming FIFA, or Not

 Antoine Duval

Book Review: Mark Pieth (ed.), Reforming FIFA, Dike Verlag, St. Gallen, 2014, 28.00 CHF, p.178

This book looks back at the work of the Independence Governance Committee (IGC). This Committee, constituted in 2011, had as primary objective to drive a reform process of FIFA initiated by its President Sepp Blatter. After ordering from the Swiss anti-corruption expert Mark Pieth, a report on the state of FIFA’s governance, FIFA decided to mandate him with the leadership of a consulting body composed of a mix of independent experts and football insiders, which would be accompanying and supervising the internal reform process of FIFA. The IGC was officially dissolved at the end of 2013, after completing its mandate. The book is composed of eight chapters, written by former members of the IGC, including former chairman Mark Pieth. In addition to the chapters, it includes the different reports (available here, here and here) submitted by the IGC to FIFA across the years. In the words of Pieth, this account is “fascinating because it gives a hands-on, realistic perspective of the concrete efforts, the achievements and the remaining challenges in the struggle for the reform of this organization [FIFA], avoiding the usual glorification or vilification.”[1] This review will first summarize the core of the account of the FIFA reform process provided by the book, before critically engaging with the outcome of the process and outlining the deficiencies that culminated on 29 May 2015 with the re-election of Sepp Blatter as FIFA president.

I.               Reforming FIFA…

In his introduction to the book, Mark Pieth provides a compelling account of the reasons why FIFA needs a reform process in the first place. He talks of the ““old boys” suddenly becoming rich”[2] and of the lack of “public accountability”[3] of FIFA. This narrative is similar to the one provided by Guillermo Jorge later in the book. He highlights the fact that FIFA relies on a “solide patronage network”, creating “incentives for member associations to engage in rent seeking – which means: spend time and efforts in obtaining such funds – and, at the same time, creates incentives for incumbents to request the favour back at the ballot box.”[4] Jorge’s detailed account of the institutional features of FIFA underlying this “patronage system” is in itself of great value.

It is further argued that with the scandals triggered by the Bin Hammam affair, in 2011, “Mr Blatter, realized that the governance structure needed to be adapted to the new challenges.”[5] In other words, it “was a product of the personal ambition of its president.” [6] All along the book, Pieth and other members of the IGC, consider Blatter as a key supporter of the reform process and shift the blame for its incompleteness on UEFA’s shoulders amongst others.[7]. UEFA, it is claimed, has been instrumental in blocking a centralized integrity check on FIFA officials (especially the members of the ExCo). Blatter, for his part, is said to have understood “sooner than many of his colleagues”, that “the system” was falling apart”[8] and that a “self-controlled reform seemed to be a rational response to pre-empt or delay external regulation and mitigate the risk for future, more uncertain investigations.”[9]

The substance of the reform triggered by the IGC is not discussed in great detail, nor is its implementation in practice assessed in depth. To be fair, the book chapters were probably written early 2014 and could hardly have done so. The core changes highlighted by the members of the IGC concern the function and structure of the Ethics Committee and the Audit and Compliance Committee. As claimed by Pieth, “the most tangible changes are the institutional changes in the area of the Ethics Committee and the Audit and Compliance Committee.”[10] In particular, “the independent permanent chairs and deputy chairs of the Ethics Committee and the Audit and Compliance Committee.”[11] Pieth praises the fact that “[t]he investigator and his deputy have full discretion which cases they take on and decide to investigate.”[12] Moreover, the “investigation is independent both from the FIFA administration and from the judicial chamber.”[13] This is also underlined by the contribution of Lord Peter Goldsmith focusing on the investigatory process.[14] Damian Heller discusses the core changes introduced to the Audit and Compliance Committee (ACC) in a separate chapter.[15] After the reform, the ACC has gained new important competences, e.g. drawing up the Organisation Regulation (governing the rights and obligations of FIFA’s organs), controlling the compensation policy of FIFA executives, monitoring the bidding process for the World Cup and auditing the use of the development funds. In addition to this, the independence of the Committee members has been reinforced. Thus, Pieth expect “that these independent agents within FIFA will make a big difference in the culture of the organization during their tenure.”[16]

The members of the IGC are not all positive about the changes triggered by the reform process engaged by FIFA. For Leandro Grosso, the member of IGC representing FIFPro, the football players’ union, the reform is clearly a failure.[17] Pieth himself is cautious enough to remind in his introduction “that pure self-regulation is a slow and uncertain process.”[18] He insists, that “[t]o be successful it has to change the culture of the whole organization, it needs to reach the associations in particular and it has to permeate the everyday life of the organization.”[19] Yet, throughout the book, there is still a clear sentiment that the FIFA reform process was a success. Indeed, Pieth considers that “[w]ith the new independent chairs in place, a first essential step has been taken.”[20] He adds: “it must be acknowledged that, overall, the last three years have been rather successful in bringing the regulations up to a certain standard.”[21] As another IGC member puts it “[t]he IGC has largely succeeded in its efforts to reform FIFA’s governance.”[22] After the reform, “there are far greater systems and controls and far greater ethical standards within FIFA.”[23] In short, “FIFA is today much closer to public and corporate governance standards than it was two years ago.”[24] Is this true?

II.             …Or Not

The IGC’s members’ optimism might go a bit too far. The recent events surrounding the investigation of the bidding process for the World Cup 2018 and 2022 seem to call for a critical assessment of the scope of progress made. Independent investigatory personnel make little difference if a final report is later shelved without allowing for external scrutiny of its findings as happened with the by now infamous Garcia report on the attribution of the 2018 and 2022 World Cup. Similarly, having a competent check on FIFA’s compensation policy is of little use if those rigorous accounts are not made freely available for journalists and the public to peruse them. The institutional changes celebrated by the members of the IGC are not negligible, but to gain real currency they must be coupled with a duty of transparency and the new Committees must be able to dispose of their findings independently. The resignation of Michael Garcia, who was deemed a token figure of the success of the reforms supported by the IGC, is there to remind us that even the, allegedly, best individuals are powerless if the institution is in a position to block their work. With his scorecard (see also here and the response of FIFA) on the reform process, Roger Pielke had convincingly quantified the limited nature of FIFA’s reforms. His findings are now corroborated in practice; even the few reform proposals FIFA actually implemented did not fundamentally change the institution. This is critical stance is shared by a recent report on ‘The reform of football governance’ adopted by the Parliamentary Assembly of the Council of Europe, urging FIFA to reinforce transparency and accountability across the board.

The IGC’s members were probably blinded by Blatter’s apparent goodwill. In fact, Blatter may even have held these good intentions, though his new stint at the head of FIFA is there to remind us that however enlightened, he remains a power-hungry monarch. Moreover, Blatter is truly accountable to only one forum: the FIFA Congress. Thus, it is doubtful that the “patronage system” put in place to control it will go away without resistance. In fact, Blatter would probably have never been re-elected in 2015 if he had imposed a radical clean up of past (and maybe present) FIFA practices relating to the use of development funds and vote buying. In that regard, the recent decision to give to the FIFA Congress the responsibility for the election of the host state of the FIFA World Cups is a potentially dangerous move that could enhance the risk of vote-buying. It shifts even more the decisive power away from the biggest Confederations to the small peripheral FAs.

All in all, it is naturally difficult for the members of a body that was invested with the responsibility to guide FIFA’s latest reform to recognize their failure to really change the way FIFA works. Some members of the IGC have done so; Alexandra Wrage resigned in protest against FIFA's “rotten reform record”. Even though one can criticize the independence of the IGC, the IGC’s members were probably genuinely committed to changing FIFA. But the main lesson one can draw from their very limited success in doing so is that sheer commitment and expertise is not enough to transform an institution grounded on a political system that promotes inertia and to some extent corruption. The illusion of an enlightened reform of FIFA driven by insiders, especially by Mr. Blatter, has been shattered. In the case of FIFA, a revolution is needed, heads need to roll, and a radically new political system needs to be put in place. Those are not easy tasks. Triggering a revolution will take time and energy. It will involve the appliance of extreme political pressure, either through the open threat of secession of UEFA or through criminal proceedings initiated by public authorities. In the end, Pieth himself is right: “self-regulation alone rarely works”[25]. This points to ‘[t]he responsibility of the host country’.[26] The “lax regulatory attitude”[27] of the Swiss government is certainly a key disincentive to a true FIFA reform. It is Switzerland’s duty to “define the minimum standard for organizations, in particular in the areas of democracy, accountability and financial controls.”[28] As the recent raid by the Swiss Police has proven, if there is the will to intervene, there is no insurmountable legal obstacle to do so. It is true, as many members of the IGC argue, that States are not in an easy position. The power of the FIFAs and IOCs of this world is extremely strong. Through their exit option, they can blackmail national States, and in particular Switzerland, into adopting an accommodating stance. But, it is simply not true that “ISOs [International Sporting Organisations] have extensive privileges and immunities, and are not governed by national laws – so cannot generally be reached by such prosecutors and regulators”[29], as Lord Goldsmith states. Still, it makes sense that the most far-reaching interventions to date that triggered reforms of Sports Governing Bodies (SGBs) were made by the EU and the US.[30] Both are strong enough to confront the political strength of the SGBs. Hence, the recent indictment of a number of FIFA officials on various criminal grounds in the US might be the first necessary step towards truly reforming FIFA.

This book is a valuable testimony of a process that has unfortunately failed to fundamentally change FIFA for the time being. One should not radically undermine the progress done, the new institutions put in place and rules adopted might serve as a basis for an overhaul of FIFA in the future, though for that to happen it will most likely need an assist from the EU or the US.

[1] M. Pieth, ‘Reforming FIFA’ in M. Pieth (ed.) Reforming FIFA, Dike Verlag, St. Gallen, 2014, p.1

[2] M. Pieth, ‘Introduction’ in M. Pieth (ed.) Reforming FIFA, p.8. In similar terms see M. Hershman, ‘The need for reform’ in M. Pieth (ed.) Reforming FIFA, p.17-18.

[3] M. Pieth, ‘Introduction’, p.9

[4] Guillermo Jorge, ‘From Patronage to managerial accountability’ in M. Pieth (ed.) Reforming FIFA, p.53

[5] M. Pieth, ‘Introduction’, p.9

[6] G. Jorge, ‘From Patronage to managerial accountability’, p.56

[7] M. Pieth, ‘Beyond changing the code: reforming culture’, in M. Pieth (ed.) Reforming FIFA, p.60

[8] G. Jorge, ‘From Patronage to managerial accountability’, p.57

[9] Ibid.

[10] M. Pieth, ‘Introduction’, p.15

[11] M. Pieth, ‘Beyond changing the code: reforming culture’, p.61

[12] Ibid.

[13] Ibid.

[14] See in particular the contribution by Lord Peter Goldsmith, ‘How to investigate misbehaviour in international sports organizations’ in M. Pieth (ed.) Reforming FIFA, p.31-38

[15] D. Heller, ‘The role of the Audit & Compliance Committee’ in M. Pieth (ed.) Reforming FIFA, p.63-69

[16] M. Pieth, ‘Beyond changing the code: reforming culture’, p.61

[17] Leonardo Grosso, ‘The reform’s impact on stakeholder involvement from the players’ perspective’ in M. Pieth (ed.) Reforming FIFA, p.39-48

[18] M. Pieth, ‘Introduction’, p.16

[19]Ibid and M. Pieth, ‘Beyond changing the code: reforming culture’, p.59-62 . In similar terms, see G. Jorge, ‘From Patronage to managerial accountability’, p.58

[20] M. Pieth, ‘Introduction’, p.16

[21] M. Pieth, ‘Beyond changing the code: reforming culture’, p.59

[22] M. Hershman, ‘The need for reform’, p.20

[23] M. Pieth, ‘Introduction’, p.16

[24] G. Jorge, ‘From Patronage to managerial accountability’, p.57

[25] M. Pieth, ‘The responsibility of the host country’ in M. Pieth (ed.) Reforming FIFA, pp.23-30, p.26

[26] Ibid, pp.23-30.

[27] Ibid, p.25.

[28] Ibid, p.26

[29] Lord Peter Goldsmith, ‘How to investigate misbehaviour in international sports organizations’, p.32

[30] See for the EU, A. Geeraert & E. Drieskens, ‘The EU controls FIFA and UEFA: a principal–agent perspective’, Journal of European Public Policy, 03/2015. See for the US, R. Pielke, ‘How can FIFA be held accountable?’, Sport Management Review 16 (2013) 255–267.