Editor's note:

Dr Borja García joined the School of Sport, Health and Exercise Sciences at Loughbourough University in January 2009 as a Lecturer in Sport Management and Policy. He holds a PhD in Politics, International Relations and European Studies from Loughborough University (United Kingdom), where he completed his thesis titled ‘The European Union and the Governance of Football: A game of levels and agendas’.

In this leafy and relatively mild autumn, we are celebrating two important anniversaries. Recently, we just passed ‘Back to the Future day’, marking the arrival of Marty McFly to 2015. In a few weeks, we will be commemorating the 20th anniversary of the Bosman ruling. Difficult to decide which one of the two is more important. As we move well into the 21st century’s second decade, these two dates should mark a moment to consider innovation. They are perhaps occasions to take stock and reflect how much sport has evolved to reach this new future… or not.

When Marty McFly ‘landed’ on October 21st 2015, at 4.29 PM, he found a whole new world. Flying skateboards, holograms, massive jumbo screens… There was not much reference to sport governance in Back to the Future, although in the vein of the rest of the film, one would anticipate a modern, innovative and decidedly better sporting world. However, if Marty McFly, coming from the 1980s or 1990s, had arrived into the real October 21^st 2015 and looked at the present state of sport governance, he may have thought his De Lorean was not working properly! Twenty years on from Bosman, and more than a decade since major scandals that were supposed to change the landscape of sport (so we were told back then), a familiar feeling of déjà-vu emerges when reading the sport news nowadays.

The late 1980s and 1990s were characterised by legal insecurity, scandals and transformation in the governance of sport. There were legal challenges to the legitimacy of governing bodies. Bosman was just one of them, but on the back of the ruling the European Commission was inundated with questions related to the application of EU law to the rules of sport governing bodies. Those were also days of major public opinion upheaval against the institutionalised doping or the mismanagement of the IOC.

Fast forward to 2015 and we find ourselves in a very similar situation! After a period of relative calm, legal challenges from stakeholders against rules and regulations of governing bodies have flourished everywhere. Dutch skaters against ISU, Mr. Striani against UEFA, FIFPro against the international transfer system, the Spanish and Portuguese leagues against FIFA... just to name a few. Moreover, it seems as if doping and corruption never left us. It was cycling back then, and Russian athletics now. It was the Olympics and Salt Lake City in the 1990s, football, Russia and Qatar now. It seems not much progress has been achieved in 20 years.

Why is that? One of the reasons is that, despite some changes and mild modernisation, the governance structures are still very similar. No flying skateboards around FIFA or the IOC, I am afraid. Sport continues to be regulated by international federations trying to keep their place at the top of a pyramid that, however, is no longer there because it has given place to a much more complex network. The transformation from vertical governance to horizontal structures, that caused many problems in the public sector as described by Rod Rhodes[1] (among others), has not been correctly addressed in sport.

As Jack Anderson has correctly pointed out, perhaps one of the problems is that the current political governance structures of sport are not fit for purpose. They lack real separation of powers. For example, when the Spanish athlete (now a senator!) Marta Domínguez is allegedly accused of doping due to irregularities in her blood passport, WADA sends the dossier to the Spanish Athletics Federation, in which Domínguez was a vice-president for a few years, serving under the current president (who has been in charge since 1989, so probably Marty McFly knows him well!). Can the disciplinary committees of such a body be really independent and be expected to pass a clear and decisive judgment? Of course, they cannot and have not done so!

But the questions are perhaps more systemic. Are international sport federations really fit for the purpose of modern sport? The new reality of sport is one where the commercial dimension is increasingly divorcing from the coveted grassroots or sport-for-all Holy Grail. ISFs, and most public sport policies, are still attempting to house these two different realities under one common roof. Questions need to be asked as to whether this confusion des genres is even possible. There was a time in which the European Commission suggested that international federations had to separate their regulatory and commercial roles. But not much has been done in that respect since the Formula 1 case. Perhaps it should be accepted that elite and professional sport needs a new approach. If ISFs are serious, they need to start putting in place much more modern management and governance structures. Executive committees need to stop being ‘representative’ of the stakeholders, turning to be ‘skills based’. They need, of course, to be much more age, race and gender diverse. Independent directors need to be fully incorporated to councils, boards and federations’ EXCOs. Standing committees need to be more independent and need to have targets… This is nothing new, but it reads as a revolution in the world of international sport.

Given the governance failures of sport, it is often questioned whether public authorities could/should/ought to regulate or bring sport to account. Here, it seems fair to say that following the political ‘backlash’ of Bosman, aptly articulated by some sport bodies, politicians have erred on the cautious side. The idea that the EU “was trying to kill club football in Europe”, as put forward by Lennart Johanson on 16 December 1995 was powerful enough to discourage the EU, and other public authorities for that matter, to regulate sport. The reality is that, to date, perhaps the EU is the only public body that has managed to bring to account international sport, even in a limited fashion, as I have argued in a recent article[2]. The mainstreaming of the autonomy and specificity of sport into EU policies, however, has deterred EU institutions from pursuing a much more proactive approach in the control and regulation of sport.

After Bosman, there was a period in which both sport and EU law found each other. There were negotiations and some changes in both sides. There were even positive noises coming from different social dialogue committees. The calm, however, has been broken abruptly. And we have woken up back to the future, as if 1995 had never passed. ASSER’s very own Antoine Duval, and some authors such as Arnout Geeraert have recently argued that the EU should be much stronger in its application of EU law to sport. The problem is: can they really do it? In an increasingly Eurosceptic environment amongst the peoples of Europe, can the EU really risk trying to have a go at sport? It can be argued, that sport as an area of ‘soft politics’ and popular culture may give the EU some of its lost legitimacy back. But I am not so sure. In a recent survey, part of the FREE Project, we asked Europeans in nine countries whether they trusted the EU (amongst other bodies) to regulate the governance of football. The answer was clear: No, they do not. Of the nine different organisations offered in the survey, the EU was the third least trusted body, only above the media and national governments. In the survey, only 40% of the Europeans in the nine countries polled trusted the EU in this respect. This goes down to 21% when the survey is restricted to core football fans, not the general public. In other words, Europeans do not trust the EU, nor national governments to improve the governance of football. So, if the EU tries to have a stronger position in the application of European law and policies to sport, it may well backfire.

Normally, I have refrained from such a normative approach to governance. As a political scientist, I prefer to analyse what actors do, rather than to tell them, what to do. However, it is clear to me that what they have done so far is not working. Twenty years on from Bosman, and a visit of Marty McFly after, the ‘future’ of international sport governance looks conspicuously similar to the past. And it is not good. We need a solution that brings us to the future, to a real future where the past is finally put to rest.

[1] Rhodes, RAW. (1997) Understanding governance: policy networks, governance, reflexivity and accountability, Maidenhead: Open University Press.

[2] Meier, HE and García, B. (2015) ‘Protecting private transnational authority against public intervention: The power of FIFA over national governments’. Public Administration, Early view, September 2015, doi: 10.1111/padm.12208.

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.

On 2 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[1].  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.

Yet, article L. 1242-13 of the French Labour Code states that a fixed term employment contract must be handed to the worker within a maximal period of two days after the beginning of the contract. Should this period of two days not be respected the worker is entitled to claim for a requalification of his fixed term contract into permanent contract[2]. Mr. Ai’i relied on this article to argue for the requalification of his contract.

It must be noted that the requalification of the initial two seasons contract in a permanent contract, implies that it can be terminated by the employer with a cause. Therefore, a termination at the occurrence of the term of the contract, i.e. after the 2 years, may be regarded as a “dismissal without genuine and serious cause” which in turn would allow the player to seek compensation.  

The RCT argued on the other hand that article L. 1242-13 and the potential requalification is inapplicable to professional rugby players whose employments relationships can never be for an indefinite time period. Indeed, according to article 1.3 of the collective agreement of professional Rugby, an employment contract with a professional rugby player can last for a maximum of 5 sport seasons.

The Cour de Cassation reminds however that a collective agreement cannot depart unfavourably for the worker to the imperative provisions of the law and therefore states that the provisions of article 1.3 of the collective agreement of professional Rugby shall not impede the requalification of a fixed term contract between a professional rugby player and his club, into a permanent contract.

This solution is not limited to Rugby and may be extended to all fields of professional sports. Indeed, like the collective agreement of professional Rugby, article 12.3.2.3 of the national collective agreement of sports, which is applicable for every professional athlete, also provides that “the duration of a same contract cannot be superior as 5 sport seasons (60 month)”.

Based on the above mentioned decision it is fair to conclude that any French professional athlete can claim for a requalification of his fixed term employment contract if he hasn’t received a copy of his employment contract within the 2 days of its beginning. Potential consequences could be significant considering that a professional athlete can terminate a permanent contract, without cause or compensation[3]. In this regard it will be interesting to see if the requalification of fixed term sport contract into a permanent contract will facilitate their termination and allow some professional athlete to change Club without any transfer fee…

This decision could have wider implications for sporting labour relationships in general. Indeed, the Cour de Cassation rejected the specificity argument put forward by the Rugby Club. The legal reasoning on which the decision is grounded could, therefore, easily be transposed to other instances, where core labour rights of athletes are at stake. 

Patrick Millot, Avocat à la Cour

[1] Cass. Soc. 2 April 2014 n° 11-25442 (cf. concurring; CA Aix-en-Provence,  17 May  2013 R.G. n° 12/06543).

[2] Cass. Soc. 6 December, 2011 n° 16-16454 ; Cass. Soc. 4 April, 2012 n° 11-10986; Cass. 11 March, 2013 n° 11-28687.

[3] In opposition to a fixed term employment contract, which could only be terminated for a serious cause (i.e. serious misconduct, force majeure or medical inability to work)