Resisting the Pressures of ‘Americanization’: The Influence of European Community Law on the ‘European Sport Model’

Abstract

Legal systems all over the world are increasingly confronted by the need to grapple with their impact on sport. Its accelerating commercialization has generated incentives to litigate. This in turn prompts questions about the extent to which the business of sport is properly treated as special and deserving of full or partial immunity from the application of normal legal rules. The European Community (EC) legal order is no different from others in its need to address these complex questions. But the purpose of this chapter is to enquire into the distinctive elements of the EC system of regulation. EC trade law is built around the pursuit of market integration and this conditions the application of the law of free movement and competition law to sport. Moreover, the institutional and constitutional characteristics of the EC system, relating in particular to the watchdog role allocated to the European Commission and the capacity of the individual to pursue violations before national courts, contribute to shaping a distinctive system. The European Court’s Bosman ruling provides a high-profile illustration of the vigorous potential of EC law in driving change in the practices of sporting organizations, and the decision has brought to the fore many more intriguing issues, which will be discussed here. The chapter proceeds from the assumption that it is realistic to suppose that European sport, particularly football, will become ever more lucrative in the next few years in the wake of the media revolution, perhaps eventually to the extent that it compares financially with the dominant sports in North America, but that there are aspects of the American model that will prove unpalatable in Europe. It is significant in this context that the Commission has recently tentatively put forward a ‘European Sport Model’ and, in the light of the Commission’s Helsinki Report on Sport of December 1999, this chapter assesses the viability of maintaining key aspects of the European tradition. Although the Bosman ruling has frequently been criticized as damaging to the fabric of European football, it is argued that the European Court in Bosman was, in fact, generous to sport’s appeals for special treatment under the law. A series of legal issues, including the sale of broadcasting rights and transfers, is discussed. The chapter concludes with observations on how special sport should be taken to be as an industry, arguing that the mutual interdependence of clubs in a league demands a much deeper commitment to wealth distribution between clubs than has been visible in recent years, but that pleas to be allowed a form of renovated transfer system should be rejected as irrelevant to the true needs of restructured organized sport. The conclusion is that ‘Americanization’ of the European game is by no means inevitable, and that EC law, too often misleadingly portrayed as a motor for change in circumstances where it is, in fact, the financial interest of clubs which is driving departures from traditional European preferences, in truth allows sport considerable autonomy to make the relevant key decisions about the shape of the game.

First published in S. Greenfield and G. Osborn, eds., Law and Sport in Contemporary Society, London: Frank Cass Publishing 2000, pp. 155–181.