4.1. The European approach to sport

The political debate on sport in Europe often attributes considerable importance to the so-called "European Sport Model". The Independent European Sport Review, for example, identifies several characteristics of sport in Europe which allegedly constitute this model: a pyramid structure of organisation allowing for democratic functioning and a certain degree of solidarity between members, combined with open competitions.[1]

The European Union has approached sport through its special characteristics. According to the Commission's 1999 Helsinki Report on Sport “[t]here are many common features in the ways in which sport is practised and organised in the Union, in spite of certain differences between the Member States, and [it] is therefore possible to talk of a European approach to sport based on common concepts and principles.” The Helsinki report and the Nice Declaration make it possible to flesh out this approach, which is based in particular on the following elements found to varying degrees depending on the sports and the Member States in question:

• A pyramid structure for the organisation of sport and of sport competitions and a central role for the sports federations;
• A system of open competitions based on the principle of promotion/relegation;
• A broadly autonomous sports movement that may develop partnerships with the public authorities;
• Structures based on voluntary activity;
• Solidarity between the various constituent elements and operators.

In addition, the Commission’s Consultation Conference “EU & Sport: matching expectations” (29-30 June 2006)[2] stressed

• the importance of national teams and competitions between these teams,
• the focus on health and the fight against doping,
• the involvement of the public sector in the financing of sport, and
• common management of amateur and professional sport by sport associations.

These characteristics enhance the positive values carried by European sport and deserve to be supported.

Nonetheless, it must be recognised that any attempt at precisely defining the "European Sport Model" quickly reaches its limits. Some of the features often presented as "characteristic", such as the system of open competitions based on promotion and relegation, are actually limited to a certain category of sport (team sport in this specific case). As a matter of fact, even for team sports the system of open competitions is somewhat mitigated by a licensing system that introduces financial criteria for participation in competitions.

Other sports present in Europe have adopted a totally or partially closed system for participation in professional sport competitions, such as motor-sports or cycling. The relevance of the pyramid structure for the organisation of competitions (and of the sport itself) is thus greatly reduced. It should be noted that the organisation of competitions also largely diverges from the pyramid structure in other sports, such as golf or tennis.
On the other hand, what is often presented as constitutive of a unique "European" model can sometimes apply to the organisation of sport in other parts of the world or even globally. The European model of sport has been a successful model and many of its elements have therefore been adopted by other countries around the world.

New tendencies are challenging the traditional vision of a unified "European Sport Model". Economic and social developments that are common to the majority of the Member States (increasing commercialisation and stagnation of public spending on the one hand, and an increase in the number of participants together with stagnation in the number of voluntary workers on the other) have resulted in new challenges for the organisation of sport in Europe. The emergence of new stakeholders (participants outside the organised disciplines, professional sports clubs etc.) and the increasing recourse to litigation are posing new questions as regards governance, democracy and representation of interests within the sports movement.

The Commission is fully aware – and respectful – of the autonomy and diversity of sports and recognises that governance is mainly the responsibility of sports governing bodies and, to some extent, the Member States. The autonomy of sport organisations needs to be recognised and protected, within a framework that ensures the implementation of good governance principles such as democracy, transparency and accountability.[3] On this basis, self-regulation should be encouraged, provided that EU law is respected in areas such as free movement, non-discrimination and competition.
While different sports may wish to examine their own organisation, the method will need to be adapted to fit the specific situation of each sport. In the sports world, governance usually refers to reinforced transparency and the introduction of formal rules and procedures in fields which have hitherto been governed in a more informal way.

The Commission considers that each sport has its specificities and deserves to be treated differently according to these. The EU will not impose general rules applicable to all European sports. However, EU law will continue to apply to sport, particularly as far as competition, freedom of movement and non-discrimination rules are concerned. Moreover, dialogue with sports organisations has brought a number of areas for possible EU action to the Commission’s attention, particularly transfers, activities of players' agents, licensing systems, involvement of supporters in clubs, criminality in sport, and the protection of minors and media rights.

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4.2. Free movement and nationality

For the issues treated in this section, see also Annex II – Sport and Internal Market Freedoms.

4.2.1. Free movement of sportspeople

Sport has been historically organised on the basis of the nation-state and competitions between national teams are highly appreciated by citizens. However, regarding access to sport this traditional feature cannot be a reason to discriminate. The Treaties, which establish the right of every citizen of the Union to move and reside freely in the territory of the Member States, prohibit discrimination on grounds of nationality.

Access to sport is a social advantage, and given its high popularity and importance for the social integration of citizens, it cannot remain outside the scope of the fundamental principles of free movement. The application of Community rules on free movement to sport is not dealt with in any specific Community legal provision, but it is the result of established case law of the ECJ. The Court has ruled that an EU national who legally resides in another Member State has the right to equal treatment in terms of social advantages.

Amateur sport must not remain outside the scope of the fundamental principles of free movement. Whereas general access to sport practice and facilities does not seem to be a problem at European level, issues arise concerning membership of clubs for non-nationals, cross-border movement of sportspeople and participation in competitions.

The Commission reaffirms that membership of sports clubs and participation in competitions is an important factor to promote the integration of residents into the society of the host country, and that discrimination against EU nationals in this area must be avoided.

In order to analyse discrimination in the amateur sports field, the Commission invited Member States in an expert meeting[4] to provide it with the legal texts that govern the relationship between the State and the sport federations and to ensure at national level, together with sport federations, that there are no discriminatory provisions in place - neither in the statutes, nor in the competition regulations. The Commission suggested that Member States address an official standard letter to national sport federations calling on them to take the necessary steps in order to change provisions where necessary.

In recent years, the Commission has received an increasing number of questions from EU residents informing it about restrictions on access to sporting activities and/or sporting competitions by sport amateurs in certain Member States and concerning different sports. During consultations with the Member States and the sport movement, the Commission has also often received information about such problems.The Commission is thus aware of a number of existing obstacles to the free movement of amateur sportspeople in several Member States. The Commission also had an exchange of views on the result of these actions with Member States under the Luxembourg Presidency in 2005.

The European Court of Justice has taken a number of important decisions in this area:

• In Walrave & Koch[5] and Dona v Mantero[6], the European Court of Justice (ECJ) stated clearly that regulations based on nationality which limit the mobility of sportsmen are not in conformity with the principle of free movement of workers.
• In its Bosman ruling[7] the ECJ stated: "Having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty, as in the case of the activities of professional or semi-professional footballers, where they are in gainful employment or provide a remunerated service". In its interpretation of the principle of free movement for sportsmen, the Court formulated two types of prohibition. Firstly, the Court prohibited all discrimination based on nationality and declared nationality quotas in sport clubs not in conformity with article 39. Secondly, in order to ensure the full effectiveness of the principle of free movement of sportsmen (after the expiry of a contract) the Court also condemned obstacles to free movement. One consequence was the end of allowances for a transfer at the end of a contract.
• The Court of Justice’s interpretation of the concept of citizenship, enshrined in Article 17 of the EC Treaty, has become increasingly broad as far as the principle of non-discrimination in accessing social advantages is concerned. The principle of equal treatment in respect of social advantages stems from Article 7(2) of Council Regulation 1612/68 of 15 October 1968 on freedom of movement for workers and family members within the Community. The Court’s case law has extended the right to equal treatment in the granting of social advantages to students and non-active persons who are lawfully resident in the host Member State. The Court has recognised the right of citizens of the Union who are lawfully resident in the territory of the host Member State to avail themselves of Article 12 of the EC Treaty when they are in a situation which is identical to that of nationals and falls within the scope ratione materiae of Community law.[8]
• In its Walrave, Donà and Bosman rulings, the ECJ recognised an exception to the principle of free movement of sportsmen for reasons which are not of an economic nature. This exception refers in particular to the selection of national teams.
• When considering the autonomy of a federation to organize its competitions, two particular cases are relevant. In its Deliège ruling[9], the Court stressed that selection criteria in judo based on a limit to the number of national participants in an international competition does not constitute a restriction on the freedom to provide services, as such a limitation may ensure certain important characteristics of sporting competitions and pursues a sporting interest only.
• Furthermore, in 2000 in its Lehtonen ruling[10] the Court considered that the setting of deadlines for transfers of players may meet the objective of ensuring the equity of sporting competitions. In order to be justified, rules of this type defined by sporting organisations may not go beyond what is necessary to achieve the legitimate aim pursued. In this case the proper functioning of the championship as a whole was ‘inherent’ to the sports organisation and the "transfer window" which prevented basket-ball players from joining another club during the season could be linked to the integrity of the competition.

Limited and proportionate restrictions to the principle of free movement, in line with Treaty provisions and ECJ rulings, can thus be accepted as regards:

• The right to select national athletes for national team competitions;
• The need to limit the number of participants in a competition;
• The setting of deadlines for transfers of players in team sports.

4.2.2. Nationality

The national organisation of sport

EU law prohibits (with some exceptions based on public policy, public health and public security) any discrimination on grounds of nationality. It establishes the right for any citizen of the Union to move and reside freely in the territory of the Member States. The Treaty also aims to abolish any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. The same prohibitions apply to discrimination based on nationality in the provision of services.

The interpretation of citizenship clauses to sport matters by the courts has led to the identification of some situations in which discrimination on grounds of nationality is clearly prohibited, or inversely, allowed. Thus, any discrimination on grounds of nationality is prohibited in sport, where sportspeople can be considered to be workers.[11]

National teams and competitions

The composition of national teams is inherent in the organisation of competitions opposing national teams. Rules concerning the composition of national teams, in particular rules that exclude non-national sportspeople from national teams, have been considered as rules that do not infringe the Treaty's free movement provisions.[12]

However, the release of under-contract players to play for national teams has recently been brought to court by some professional football clubs seeking compensation for time spent away from the club or for injuries sustained while on international duty.[13]

Some Member States and sports organisations have signalled their preoccupations with the situation of competitions involving individual sportspersons and leading to the conferment of National Champion titles. On cultural grounds, they are of the opinion that the conferment of such titles should be reserved for nationals of the Member State within which the competition takes place. A more technical concern is linked to the fact that in some cases, results in a national championship serve as a basis for the qualification of nationals to international competitions or for the composition of national teams.

The legality of residency clauses also needs to be examined, as some sports organisations are concerned that some sportspeople can take part in different national championships.

Third-country nationals

a. Admission for residence and work in the EU:

Requirements for residence and work permits may be perceived as an administrative hurdle by third-country nationals exercising sport activities in EU Member States. In accordance with the conclusions of the European Council in Tampere (Finland) in October 1999, which called for the establishment of an EU immigration policy based on fair treatment for third-country nationals, several Directives have been adopted in the course of the last years which also directly relate to the rights of third-country sport professionals, notably Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification and Council Directive 2003/109/EC of 25 November 2003 on a long-term resident status for third country nationals who have legally resided for five years in the territory of a Member State.

In the December 2005 ‘Policy Plan on Legal Migration’ (COM (2005) 669), which lists the actions and legislative initiatives that the Commission intends to take so as to pursue the consistent development of an EU legal migration policy, several measures are listed which may have a positive impact on third country sport professionals. The measures most likely to bring about direct benefits for third-country workers will be the planned proposal for a directive on rights of migrant workers as well as the planned proposal for a directive on the admission of highly skilled workers (both scheduled for the second half of 2007).

It should be noted that in 2003[14] and in 2005[15] the ECJ extended the principle of equal treatment to sportsmen from third countries having an Association Agreement with the European Union, because of the existence of non-discrimination clauses in these agreements. The clauses specifically stated that the treatment accorded by each Member State to workers from partner countries legally employed in its territory, would be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals. The principle of non-discrimination is reaffirmed in similar terms in the Cotonou Agreement[16] between the European Union and 78 African, Caribbean and Pacific countries. However, no case regarding this Agreement has so far reached the ECJ.

The principle of non-discrimination applied in Association Agreements is restricted to workers legally employed in the territory of Member States, and subject to a condition of reciprocity. If the sport involves gainful employment it will be subject to Community law or to the provisions of non-discrimination of the Association Agreements. In its judgments of 2003 and 2005 the Court affirmed the interpretation taken in its earlier judgments in relation to sports and the importance of the principle of non-discrimination of third-country nationals who are legally employed in the Member States. These clauses however, do not allow a right to free movement within the European Economic Area.

b. Admission for short-term stays (visa):

As there is no special regulation for obtaining visas in order to attend sporting events or practice sports during international competitions, the general common visa rules apply for this category of persons. Visa requirements can sometimes affect the participation of third country nationals in international competitions, occasionally leading to disruptions in the structure of competitions.[17]

In order to facilitate the procedures for applying for and issuing visas for members of the Olympic family taking part in the 2004 Olympic and Paralympic Games in Athens and in the 2006 Winter Games in Turin, two Council Regulations (1295/2003[18] and 2046/2005[19]) were adopted. These measures were justified by the exceptional character of the event and the need to respect the obligations of the host country under the Olympic Charter, in particular the obligation to ensure entry to its territory for members of the Olympic family, but without undermining the essential principles and the smooth functioning of the Schengen acquis.

Although the Regulations maintained the visa requirement for members of the Olympic family having the nationality of a third country subject to that requirement under Council Regulation 539/2001[20], they aimed at facilitating the procedures by providing the submission of collective visa applicationsvia the Olympic accreditation system. This way the Regulations provided a temporary derogation from the general visa rules of the Schengen acquis, including certain simplifications of the visa issuing procedure and the issuing of the visa in the form of a special number on the accreditation card.

Recently, in the framework of the proposal for a Regulation establishing a Community Code on Visas (Visa Code)[21], which will replace the Common Consular Instructions[22], the Commission suggested putting permanent provisions regarding measures envisaged to facilitate the procedures for applying for and issuing visas for members of the Olympic family taking part in future Olympic Games among the rules of procedures in the Visa Code. In order to facilitate, in the future, this aspect of the organisation of Olympic Games by a Member State while fully applying the Schengen acquis, the specific procedures and conditions to be used will be attached to the Visa Code in an annex, which could be used without the need for lengthy legislative procedures.

Furthermore, in order to facilitate people to people contacts, the visa facilitation agreements concluded with Russia and Ukraine and to be concluded with five Western Balkan countries provide for the simplification of documentary evidence for participants in international sport events and persons accompanying them in a professional capacity, who can get the visa free of charge, and – in certain circumstances – for the issuance of multiple-entry visa valid for a longer period of time.

Concerning the crossing of internal borders, in case of a serious threat to public policy or internal security (e.g. during an international sport event), a Member State may – exceptionally and temporarily – reintroduce border control at its internal borders according to Articles 23-25 of the Schengen Borders Code.[23] This suspension of part of the Schengen acquis may affect both third country nationals and EU citizens who wish to attend sporting events.

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4.3. Transfers

The transfer system of players is an example of the specificity of sport. While no comparable phenomenon exists in other economic areas, transfers of players between clubs play an important role in the functioning of team sports and, in particular, professional team sports.Transfer rules aim to protect the integrity of sporting competition and to avoid problems such as money laundering, but they must be in compliance with EU law.

In § 95-96 of its Bosman ruling, the Court of Justice unequivocally stated that "nationals of a Member State have, in particular, the right, which they derive directly from the Treaty, to leave their country of origin, to enter the territory of another Member State and reside there in order to pursue an economic activity. Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to free movement therefore constitute an obstacle to that freedom, even if they apply without regard to the nationality of the workers concerned." Restrictive transfer rules may also constitute an infringement of EU competition law. The Bosman ruling stated that professional football is an economic activity and therefore subject to EU law.

The Lehtonen case[24] implied that certain restrictions on labour mobility may be justified in order to ensure certain important characteristics of sporting competition such as transfer windows.

In Nice in December 2000, the European Council gave its support to a dialogue on the transfer system between the sports movement (in particular football authorities), organisations representing professional sportspeople, the Commission and the Member States, with due regard for the specific requirements of sport, subject to compliance with Community law.

In 2001, in the context of a case concerning alleged infringements of EU competition law by the FIFA Regulations on international football transfers, FIFA, in agreement with UEFA, undertook to change its existing Regulations on the status and transfers of players on the basis of the following principles[25]:

• For players under 23, a system of training compensation should be in place to encourage and reward the training effort of clubs, in particular small clubs.
• The creation of solidarity mechanisms to compensate clubs, including amateur clubs, for training costs.
• International transfers of players under 18 should be allowed subject to agreed conditions. The football authorities will establish and enforce a code of conduct to guarantee that sporting, training and academic education is provided to such players.
• The creation of one transfer period per season, and a further limited mid-season window, with a limit of one transfer per player per season.
  Minimum and maximum duration of contracts of respectively 1 and 5 years.
• Contracts are protected for a period of 3 years up to the age of 28; 2 years thereafter.
• A system of sanctions to be installed to protect the integrity of sport competitions so that unilateral breach of contract is only possible at the end of a season.
• Financial compensation can be paid if a contract is breached unilaterally, whether by the player or the club.
• Proportionate sporting sanctions are to be applied to players, clubs or agents in the case of unilateral breaches of contract without just cause in the protected period.
• Creation of an independent arbitration structure, with an independent chairperson and members designed on a parity basis by players and clubs.
• Voluntary arbitration not preventing access to national courts.

In 2002, the Commission considered this proposal to be balanced and therefore decided to close its investigation.

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4.4. Players' agents

The development of a truly European market for players and the rise in the level of players’ salaries in some sports has resulted in an increase in the activities of players’ agents. Many players (but also sport clubs) ask for the services of agents to negotiate and sign contracts in an increasingly complex legal environment.

In recent years, cases brought before national courts and studies such as the Independent European Sport Review have called attention to some challenges related to this activity. Due to the integrated nature of the European players’ market, the activity of players’ agents is almost always of a cross-border nature. Thus, agents are often subject to differing regulations in different Member States. Some Member States (e.g. France, Portugal) have introduced specific legislation on players' agents while in others (e.g. Belgium, Netherlands, United Kingdom) the applicable law is the general law regarding employment agencies, but with specific references to players' agents. Moreover, some international federations (FIFA, FIBA) have introduced their own regulations for players’ agents.

As regards the compatibility of federations' rules with EU competition law, even if the restrictions they impose on these sport-related professions are not likely to be considered inherent in the pursuit of a legitimate sporting objective, they may nevertheless be justified under Article 81(3) or Article 82 EC. The Court of First Instance has recognised[26] as legitimate the objective of raising professional standards for players’ agents by introducing a qualitative (as opposed to quantitative) selection in the quasi total absence of any national laws or self-regulation in that respect.

There are reports on bad practices in the activities of some agents which have resulted in instances of corruption, money laundering and trafficking in underage players. These practices are damaging for the sport sector in general and raise important governance questions. The health and security of players, and particularly minors, needs to be protected and criminal activities fought against.

Some Member States have introduced specific legislation on players' agents while others have not, and some sport organisations (FIFA, FIBA) have introduced their own regulations. The issue of recognition of professional qualifications of players' agents is already covered by Directive 2005/36/EC on the recognition of professional qualifications in cases where the profession of players' agent is subject to national qualification requirements by regulation.

The European Parliament and stakeholders have called on the EU to regulate the activity of players' agents through an EU legislative initiative. The European Parliament resolution on the future of professional football "calls on the Commission to support UEFA's efforts to regulate players' agents, if necessary by presenting a proposal for a directive concerning players' agents which could include: strict standards and examination criteria before anyone could operate as a football players' agent; transparency in agents' transactions; minimum harmonised standards for agents' contracts; an efficient monitoring and disciplinary system by the European governing bodies; the introduction of an "agents' licensing system" and agents' register; and ending "dual representation" and payment of agents by the player."

It is therefore necessary to further analyse the extent of the problem. More information is needed and the impact of any proposed solution at EU level must be carefully assessed.

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4.5. Protection of minors

There are concerns that the exploitation (sometimes also referred to as "trafficking") of young players is continuing. It is reported that an international network managed by agents takes very young players to Europe especially from Africa and Latin America. The most serious problem concerns children who are not selected for competitions and are abandoned in a foreign country, often falling in this way in an irregular position which fosters their further exploitation.

In most cases this phenomenon does not fall into the legal definition of trafficking in human beings, which is a very serious crime and implies the transfer of the child for the specific purpose of forced labour, sexual exploitation or other forms of severe exploitation such as begging. However, the situation of young players taken abroad for sport training and then abandoned without any support[27] is absolutely unacceptable given the fundamental values recognised by the EU and its Member States. It is also contrary to the values of sport.

The European Council's Nice Declaration (2000) mentions the need for the Community to take into account the protection of young sportsmen and sportswomen.[28]

The European Parliament has pointed out in its resolution on the future of professional football that it is "convinced that additional arrangements are necessary to ensure that the home-grown players initiative does not lead to child trafficking, with some clubs giving contracts to very young children (below 16 years of age);" and that "young players must be given the opportunity for general education and vocational training, in parallel with their club and training activities, and that the clubs should ensure that young players from third countries return safely home if their career does not take off in Europe."

The European Parliament "insists that immigration law must always be respected in relation to the recruitment of young foreign talent" and "calls for action to prevent the social exclusion of young people who are ultimately not selected." Following the recommendations of the Parliament, the Commission tackles the problem in the context of the implementation of Council Directive 94/33/EC of 22 June 1994 on the Protection of Young People at Work.[29]

The main objectives of the Directive on the Protection of Young People at Work are to ensure that the Member States prohibit the work of children, to ensure that work of adolescents is strictly regulated and protected and to ensure that employers guarantee that young people have working conditions suitable for their age. The Directive allows Member States to stipulate, subject to certain conditions, that the ban on the employment of children is not applicable, among others, to children employed for the purposes of cultural, artistic, sports or advertising activities, subject to prior authorisation by the competent authority in each individual case.

There are indications that the practical enforcement of the Directive is only partial with regard to minors in sport. This problem needs to be studied and addressed.

As far as violations of immigration law are involved, Member States must apply the protective measures for unaccompanied minors envisaged by national legislation, where appropriate in accordance with Council Directive 2004/81/EC of 29 April 2004 on the residence permit.[30] In line with the UN Convention on the Rights of the Child[31], the best interest of the child must be a primary consideration for Member States when applying national legislation, especially concerning education and social integration. Finally, according to the Commission's proposal for a Directive on common standards and procedures in Member States for returning illegally staying third-country nationals[32], the “best interests of the child” should be taken in due account when making any decision on the return of the child, in particular with respect to the duration of the child's stay in the Member State and of the existence of family, cultural and social ties with the country of origin.

The protection of minors in sport would also benefit from more effective regulation of the activities of players' agents, better licensing systems for sport clubs, and social dialogue in the sport sector.

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4.6. Corruption, money laundering and other forms of financial crime

There have repeatedly been reports about corruption in the sport sector. Although there are EU instruments in place which require Member States to criminalise offences of corruption in both the public[33] and the private[34] sector, the Commission believes that more can still be done to optimise the effectiveness of these measures in relation to the particular challenges of the sport sector. It has so far not been possible to tackle this issue through EU mechanisms. The European Parliament considers that "many criminal activities (match fixing, corruption, etc.) are the result of the spiral of spending, salary inflation and the subsequent financial crises faced by many clubs."

Sport organisations are generally aware of these problems and have for some time been discussing them with governmental actors. The need for sport organisations to be transparent was recognised by participants at the conference "Rules of the Game", which took place in Brussels in 2001. In fact, it is one of the key aspects of the conference report. The problem has also been recognised in a number of reports produced by sport organisations, including the "Stevens Report" on Premier League Transfers.

One of the reasons why the Independent European Sport Review was launched was that it identified "a range of problems – such as doping, corruption, racism, illegal gambling, money-laundering and other activities detrimental to the sport – where only a holistic approach between football and the EU and national authorities will be truly effective." The Review put these problems on record and identified the following key problem areas: "player transfers, payments to agents, investment in clubs and a variety of other commercial deals associated with football, such as sponsorship".
Corruption in the sport sector may frequently be a reality and, given the sector's high degree of internationalisation, is often likely to have cross-border aspects. Corruption problems which have a European dimension need to be tackled at European level.

Corruption is particularly damaging for sport as it raises a credibility problem for sport associations. The sport sector cannot tackle the problem alone. Many major sport organisations have come to realise that they need to work more closely with governmental actors, including law enforcement bodies.

Sport organisations should be asked to provide input on how the fight against corrupt practices is addressed, and on how it could be made more effective. The development of public-private partnerships both at national and at European level will be of key importance into fighting against problems such as corruption, money laundering and match-fixing.

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4.7. Licensing systems for clubs

In sport competitions certain criteria must normally be fulfilled as a condition for sport clubs to participate. One of the aims of such criteria is to prevent clubs from dropping out prematurely and therefore distorting the results of the competition. These criteria, which are set by sport federations or the organisers of leagues, are most often financial, but they also frequently require compliance with certain standards relating to e.g. safety for spectators and athletes. The set of criteria to be fulfilled in order to enter a sport competition is often referred to as a licensing system. Licensing systems exist in different sports (e.g. football, basketball, rugby etc.) and they are applied in national or European competitions.

The club licensing system for UEFA’s football competitions provides an example.[35] This self-regulatory approach is considered by UEFA to be a key initiative to improve the governance and financial management of football in Europe. In its report on the future of professional football in Europe, adopted in March 2007, the European Parliament expresses firm support for the UEFA club licensing system and calls on UEFA to further develop this system in compliance with Community law in order to guarantee financial transparency and proper management. It also considers that "diverging national legislation and licensing criteria in Europe cause an uneven playing field, economically and legally, and this situation seriously hampers fair sports competition between teams in European leagues, and hence also between national teams".

Licensing systems represent a compromise between the traditional openness of competitions in Europe, where access is allegedly based only on sporting merits, and the alternative approach of closed competitions in professional leagues, where the "financial" merit is preponderant. Licensing systems thus represent an evolution of the so-called European approach to sport, where sport merit remains the main criterion for a club to be entitled to participate in often highly professionalized competitions while having equally to fulfil a set of minimum financial and management standards. This should ultimately improve the financial and social sustainability of clubs.

Licensing systems generally aim to ensure that all clubs respect the same basic rules on financial management and transparency, but could also include provisions regarding discrimination, violence, protection of minors and training.

The usefulness of robust licensing systems should be acknowledged for professional clubs at European and national levels. Such systems must be compatible with competition and Internal Market provisions and may not go beyond what is necessary for the pursuit of a legitimate objective relating to the proper organisation and conduct of sport. The principle of proportionality must be respected.
Efforts need to concentrate on the implementation and gradual reinforcement of licensing systems. In the case of football, where a licensing system will soon be compulsory for clubs entering European competitions, action needs to concentrate on promoting and encouraging the use of licensing systems at national level.

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4.8. Media

Issues concerning the relationship between the sport sector and sport media (television in particular) have become crucial as television coverage is the main source of income for professional sport in Europe. For instance, the value of broadcasting rights for the five biggest national football championships in Europe has continued to increase, reaching around €3 billion for the 2005/2006 season. Conversely, sport media rights are a decisive source of content for many media operators and an important factor driving the development of new platforms for the distribution of audiovisual content.

Characteristics of the European sport-related audiovisual sector are its constantly changing parameters and adaptations of the rules to different and new actors. The "Television without Frontiers" Directive[36] recognises the specificity of sport in the media context and its importance for (television) viewers. In Article 3a it provides for a possibility for the Member States to take measures to ensure in respect of events regarded as being of major importance to society (sport events being one of the foremost examples), that a significant part of the public is not deprived of the possibility of following such events on free television. The national lists, once notified to the Commission, are verified for their compatibility with Community law and published in the Official Journal. The publication of the lists in the Official Journal triggers mutual recognition of the national lists by other Member States.

The new Article 3j of the future Audiovisual Media Services Directive[37] proposes a further element to enhance access of viewers to events of high interest for society (including sport events): broadcasters exercising exclusive rights to such events have to grant other broadcasters the right to use extracts for the purpose of short news reports. It can be expected that this provision will not only help to foster the right to information of European citizens, but will also contribute to the trans-frontier circulation of sport programmes between Member States.

The application of EC competition rules has a great impact on relations between media operators and sporting organisations and thus on the financing and organisation of sport. The acquisition and sub-licensing of broadcasting rights and the sale of advertising slots constitute examples of activities of an economic nature covered by the provisions of the EC Treaty.

The application of the competition provisions of the EC Treaty to the selling of media rights of sport events takes into account that this area has a number of specific characteristics which notably include the following:

• The life-span of sports media rights is short. Sport events are mainly of interest if broadcast live.
• Demand is focused. Viewers will not be satisfied with the broadcast of a sport event other than the one which they were expecting.
• The availability of sports media rights is limited as they are often concentrated in the hands of a single federation and because contracts are concluded on an exclusive basis for long periods or for a large number of events.

The challenge for sport is to continue to be a driving force for the development of the media sector while at the same time ensuring that sport competitions are not distorted by an unfair distribution of the revenues from the sale of media rights of these competitions and that the different levels of sport participate in the distribution of the proceeds from professional sport organisations (principle of solidarity).

The area of sport media rights is particularly sensitive to antitrust violations. Given that a single seller or a joint selling entity may sell all sport media rights on an exclusive basis for an extended period of time to one single operator in a certain market (such as pay-TV), other operators in that market are foreclosed from accessing the product, which may result in competitive harm. Moreover, operators in neighbouring markets (such as internet) cannot access the exclusively sold rights. This may hamper the development of new services in neighbouring markets.

The Commission has taken decisions in three cases involving the joint selling of rights to broadcast games played by football clubs on the basis of Article 81 EC, namely UEFA Champions League[38], German Bundesliga[39] and FA Premier League[40].

The Commission's consistent policy has been that joint selling constitutes a horizontal restriction of competition under Article 81(1) EC. At the same time, the Commission also acknowledges that joint selling creates certain efficiencies and may, under certain circumstances, fulfil the conditions of Article 81(3) EC and therefore not constitute a violation of Article 81 EC. The Commission remedied the negative effects of joint selling by requiring, e.g., the selling of rights in several individual rights packages following an open and transparent tendering process. Moreover, the duration of rights contracts should not exceed three years and unsold rights would fall back for individual exploitation by the clubs. The abovementioned decisions had the effect of opening up media rights markets to broadcasters and new media service providers by making several different rights packages available while safeguarding the social and cultural aspects of football. This prevented the concentration of all available rights in the hands of a single media operator and ensured that a maximum amount of rights was made available to sports fans.[41]

The question if and under which conditions joint selling can be justified on the basis of Article 81(3) has to be examined in the light of the specific circumstances of each individual case.

The Declaration of the Nice European Council of 7-9 December 2000 on the specific characteristics of sport and its social function in Europe mentions (point 15) that the sale of television broadcasting rights is one of the greatest sources of income today for certain sports. The European Council stated that moves to encourage the mutualisation of part of the revenue from such sales, at the appropriate levels, would be beneficial to the principle of solidarity between all levels and areas of sport.

The joint selling of media rights for sporting competitions may facilitate the redistribution of revenues based on the principle of mutual support and based on the principle that these revenues should be redistributed to all those involved in sport: amateurs, volunteers, young people in training centres, sports teachers etc. However, it is important to note that a system of joint selling does not automatically lead to an equitable redistribution of the revenues. It is the primary responsibility of the national league associations, sport associations and clubs concerned to agree on a form of redistribution that is in line with the principle of solidarity expressed in the Declaration of the Nice European Council. It should be noted that financial solidarity can also be achieved on the basis of individual selling of sports media rights, provided that it is accompanied by a robust solidarity mechanism.

The 2001 "Rules of the Game" conference recognised that the "concept of solidarity is key to the development of sport" and "that fair and effective distribution of financial revenues from the sale of commercially valuable rights related to sport events encourages the development of talent and contributes to balanced and attractive competitions."

The following principles were proposed as guidelines for redistribution of revenue:

• Redistribution must be based on principles of solidarity (between all levels of the sport);
• Redistribution policies must pursue aims that are objective and justifiable;
• Effective communication through all levels of a sport is essential;
• Administration of redistribution mechanisms must be transparent, accountable and objective.

Sport organisations should pay due attention to the creation and maintenance of solidarity mechanisms. In the area of sports media rights, such mechanisms can take the form of a system of collective selling of media rights or of a system of individual selling by clubs, accompanied by a robust solidarity mechanism. In both cases the system has, of course, to be in line with EU law.

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4.9. Supporters

The supporter phenomenon mostly concerns team sport clubs, particularly football clubs. While sometimes associated with negative phenomena (violence, racism, xenophobia), supporters' organisation often contribute to active citizenship and democracy, especially by reaching out to young people who are not always involved in other civil society structures.

There is currently no organised pan-European body to represent the interests of supporters in Europe. However, an interesting initiative concerning football and rugby has been developed in the UK and is currently being discussed at European level.

The UK Government has funded and supported the Supporters Direct[42] initiative, to:

• Promote and support the concept of democratic supporter ownership and representation through mutual, not-for-profit structures;
• Promote football clubs as civic and community institutions;
• Work to preserve the competitive values of league football in the United Kingdom and promote the health of the game as a whole.

These aims are pursued through:

• The Formation of Supporters Trusts to ensure democratic, transparent representative bodies for supporters at their clubs;
• The democratic representation of Supporters Trusts on Football Club Boards;
• The ownership of shares in clubs by Supporters Trusts and the pooling of individually held shares in a club under the influence of the Trust.

140 Supporters Trusts have been created in the UK to date.

The Independent European Sport Review recommended to UEFA to "involve supporters organisations as important stakeholders when they are organised at European level and to examine the feasibility of a European Supporters Direct body." UEFA announced on 13 October 2006[43] that "it is backing the launch of a project to study the feasibility of a European Supporters Direct body - which would, among other things, give supporters the opportunity to play a role in improving the financial stability and governance of their clubs. […] The process will study the possibility of taking the Supporters Direct model used in the UK, where supporters' trusts own a growing number of clubs, with a view to assessing to what extent this model could be expanded across Europe, as well as studying the different alternative models that exist around Europe. […] The result will be a report outlining the feasibility of extending the model across Europe."

The supporter movement's contribution to active citizenship and democracy can be strengthened through official recognition at club level. A formalised involvement of supporters can reinforce the governance and financial stability of clubs. It can also lead to new partnerships with local authorities, businesses and communities, thus facilitating locally sustainable income for sport clubs. In addition, a formalised partnership with supporters can be a way of supporting actions against violence, racism and xenophobia in sport.

 

[1] This model is often contrasted with a so-called "American Model of Sport" based on a strict separation between closed professional leagues on the one hand and amateur sport on the other. However, this is a rather limited view of the real organisation of sport in the United States, as it refers only to the professional structure of four main sports: American football, basketball, base-ball and ice hockey. It does not take into account the significant role of academic sport nor the different organisational structures of other sports such as athletics or swimming.
[2] /sport/doc/organisation_sport_europe.pdf
[3] See the conclusions of the 2001 "Rules of the Game" conference.
[4] Meeting of experts with Member States representatives on the free movement of amateur sportspersons (Brussels, 1st December 2005): /sport/sport-and/jai/docs/reportexpert1205_en.pdf
[5] Case 36/74 of 12 December 1974
[6] Case 13/76 of 14 July 1976
[7] Case C-415/93 of 15/12/1995
[8] C-184/99, Grzelczyk, 20 September 2001 and C-85/96, Martinez Salà, 12 May 1998.
[9] Case C-51/96 and C-191/97 of 11/04/2000
[10] Case C-117/96 of 13/04/2000
[11] C-415-93, Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman, 15 December 1995.
[12] C-36/74, Walrave and Koch v. Union Cycliste Internationale, 12 December 1974.
[13] On 15 May 2006, the Charleroi Commercial Court referred the question to the ECJ for a preliminary ruling under Article 234 EC, on the application of Article 39 (free movement of workers), 49 (free movement of services) and Articles 81 and 82 (competition) to the rules of FIFA governing player release and insurance (case C-243/06, OJ C 212, 2 September 2006, p.11).
[14] Case C-438/00, Deutscher Handballbund V Maros Kolpak of 8/05/2003
[15] Case C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura, Real Federación Española de Fútbol of 12/04/2005
[16] Article 13, par.3 of the ACP EU Partnership Agreement signed in Cotonou on 23 June 2000.
[17] When players or teams qualified on sporting grounds cannot participate in a competition because they are prevented from entering the territory of a Member State.
[18] Council Regulation (EC) No 1295/2003 of 15 July 2003 relating to measures envisaged to facilitate the procedures for applying for and issuing visas for members of the Olympic family taking part in the 2004 Olympic or Paralympic Games in Athens, O.J. L 183 , 22/07/2003 p. 1-5.
[19] Regulation (EC) No 2046/2005 of the European Parliament and of the Council of 14 December 2005 relating to measures envisaged to facilitate the procedures for applying for and issuing visas for members of the Olympic family taking part in the 2006 Olympic and/or Paralympic Winter Games in Turin, OJ L 33/1 of 20.12.2005
[20] Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and the countries whose nationals are exempt from that requirement, OJ L 81, 21.03.2001.
[21] Proposal for a Regulation of the European Parliament and of the Council establishing a Community Code on Visas (11752/1/06 VISA 190 CODEC 771 COMIX 662)
[22] Common Consular Instructions on visas for the diplomatic missions and consular posts (OJ C 326, 22.12.2005)
[23] Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)
[24] Case C-117/96 of 13/04/2000
[25] IP/01/314 of 05/03/2001
[26] Case T-193/02, Piau v. Commission, judgment of 26 January 2005; the appeal was rejected as being partly manifestly inadmissible and partly manifestly unfounded by order of the ECJ of 23 February 2006, Case C-171/05P.
[27] In this context, support is mainly– but not exclusively – intended as support in terms of accompanied return in the country of origin and reinsertion in the home society and family, in those cases in which the young player has not been authorised to continue to legally reside in the country of destination (under another typology of residence permit) or when he/she desires to return. This support could take other forms if the young minor player has been granted a residence permit allowing him/her to remain in the country of residence.
[28] The European Council expresses concern about commercial transactions targeting minors in sport, including those from third countries, inasmuch as they do not comply with existing labour legislation or endanger the health and welfare of young sportsmen and -women. It calls on sporting organisations and the Member States to investigate and monitor such practices and, where necessary, to consider appropriate measures.
[29] Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work: The Directive's main objective is to prohibit the employment of children. However, the Directive allows Member States to stipulate, subject to certain conditions, that the ban on the employment of children is not applicable to children employed for the purposes of sporting or advertising activities, subject to prior authorisation by the competent authority in each specific case. Member States can thus exclude sport activities, but only through existing national legislation.
[30] Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities
[31] UN Convention on the Rights of the Child of 20 November 1989
[32] COM (2005)391 of 1.9.2005. The proposal is currently negotiated in the Council and in the European Parliament.
[33] Convention drawn up on the basis of Article K.3 (2)(c ) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (OJ C 195, pages 2-11, of 25.06.1997)
[34] Council Framework Decision 2003/568/JHA of 22 July 2003 (OJ L 192/54 of 31.7.2003)
[35] See UEFA’s Manual for the 2004/2005 season at http://www.uefa.com/newsfiles/22395.pdf
[36] Council Directive n°89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities.
[37] Council's Political Agreement on Common Position of 24 May 2007
[38] Commission decision of 23 July 2003, Case 37398 Joint selling of the commercial rights of the UEFA Champions league, OJ 2003 L 291/25
[39] Commission decision of 19 January 2005, Case 37214 Joint selling of the media rights to the German Bundesliga, OJ 2005 L 134/46
[40] Commission press release IP/06/356 of 22 March 2006
[41] For a detailed presentation of the application of EU anti-trust law to the selling of sports media rights see point 3.1 of Annex I to this document.
[42] http://www.supporters-direct.org/
[43] http://www.uefa.com/uefa/Keytopics/kind=64/newsId=467134.html