Abstract
In the Official Programme published for the 2002 Football World Cup a full page plea appeared under the title ‘Help us to ensure Fair Play at the 2002 FIFA World Cup Korea/Japan™!’ At first glance one might expect the exhortation to be designed to encourage respect for opponents, both on and off the field, or perhaps to appeal to all participants to play according to both the letter and the spirit of the laws of the game. Not so. The page in question is in fact devoted to the phenomenon of ‘ambush marketing’. It is explained that the ‘Official Commercial Affiliates’ of the tournament contribute greatly to its success, while other companies seek to promote their products by seeking to establish an association between them and the tournament without having paid FIFA for the privilege. Football spectators are encouraged to prevent such ‘ambushes’ by declining to bring commercially-branded material such as flags, banners, balloons and hats into the stadiums, even though they may commonly be cheerfully offered such free but unauthorized gifts on their journey to the match. Fair Play!
First published in 40 CML Rev. (2003) p. 51–93.
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Notes
- 1.
Korean/English edition, p. 122.
- 2.
Case C-415/93, URBSFA v. Bosman, [1995] ECR I-4921.
- 3.
MEMO/02/127, ‘The application of the EU’s competition rules to sport?’, 5 June 2002.
- 4.
‘Celtic and Rangers to be kicked out as smaller clubs vote for new Scots league’, Financial Times, 17 April 2002, p. 4.
- 5.
Source: Rollin and Rollin 2002.
- 6.
The latter currently seems the more probable medium-term outcome because the former appears to hold insufficient commercial appeal to the English clubs who would be asked to act as hosts. The former option itself raises intriguing questions in so far as attempts by governing bodies to maintain the traditional structure of national Leagues in Europe by refusing permission for such cross-border moves collides with EC rules governing free movement (albeit not in the case of Anglo-Scottish adjustments, which are internal to a single Member State).
- 7.
Case C-415/93, supra note 2.
- 8.
- 9.
See further below, Sect. 9.4.7.2.
- 10.
Case 36/74, [1974] ECR 1405.
- 11.
Case 13/76, [1976] ECR 1333.
- 12.
- 13.
Case 36/74 supra note 10, Para. 8. Cf. Case C-415/93 supra note 2, Para. 76.
- 14.
In fact, if anything it confused it, by referring to justification of such practices (Para. 76), which implies they in principle fall within the scope of EC law, whereas A-G Lenz took the more orthodox line of treating such practices as falling outwith the scope of EC law in the first place. See Weatherill 1999, p. 354.
- 15.
For an extended discussion see Dubey 2000, Ch. 5, in which an ambitious case is made for the preservation of nationality discrimination at the higher levels of the club game (for comments, see Weatherill 2002, 901–4). See also McCutcheon 2000, pp. 127–140. Pending before the Court is Case C-438/00, Deutscher Handballbund eV v. Maros Kolpak on the compatibility of nationality-based eligibility rules in handball with the EC/Slovakia Association Agreement; A-G Stix-Hackl delivered her Opinion on 11 July 2002.
- 16.
This is explored in more depth and breadth in Sect. 9.5 below.
- 17.
Case C-415/93 supra note 2, Para. 77 of the judgment.
- 18.
Cases C-51/96 & C-191/97, [2000] ECR I-2549.
- 19.
Case C-176/96, [2000] ECR I-2681.
- 20.
- 21.
Paras. 41–43 of the judgment in Deliège, Paras. 32–34 of the judgment in Lehtonen.
- 22.
Para. 64 of the ruling.
- 23.
See especially Paras. 53–56 of the judgment.
- 24.
MEMO/02/t27. ‘The application of the EU's competition rules to sports’, 5 June 2002.
- 25.
IP/99/782, 21 October 1999.
- 26.
IP/07/585, 18 April 2002.
- 27.
OJ 1997, C 361/7.
- 28.
Formula One, economically powerful and quick to threaten to move its operations beyond the EU's borders, has also been a tough nut for the legislature to crack; the Tobacco Advertising Directive, annulled by the Court in Case C-376/98 Germany v. Council and Parliament [2000] ECR I-8419, contained (now redundant) concessions to the industry. On the background see Khanna 2001, 113.
- 29.
OJ 2001, C 169/5.
- 30.
IP/01/1523, 30 October 2001.
- 31.
IP/99/956, 9 December 1999, IP 99/956, 9 June 1999.
- 32.
CAS 98/200, AEK Athens and Slavia Prague v. UEFA, 20 August 1999. See generally on the CAS, Beloff, Kerr and Demetriou 1999, Chs. 8.101–8.108.
- 33.
OJ 1999, C 363/2.
- 34.
IP/02/942, 27 June 2002.
- 35.
IP/02/1211, 9 August 2002.
- 36.
Decision 2000/12 1998 Football World Cup OJ 2000, L 5/55.
- 37.
OJ 1997, C 372, Paras. 15, 17, 40 of the Notice.
- 38.
Para. 77 of the Decision.
- 39.
Para. 85, citing Case T-83/91, Tetra Pakt II, [1994] ECR II-755, Case 7/82, GVL, [1983] ECR 483.
- 40.
The Commission cited Football World Cup in insisting on this principle in the (rather more important!) subsequent Decision 2001/892 Deutsche Post OJ 2001, L 331/40.
- 41.
See especially Para. 109 of the Decision.
- 42.
Cf. the disproportionate but unchallenged response to incidents of violence involving English football supporters during the 1980s discussed in Evans 1986, 510.
- 43.
Para. 102; also Para. 122.
- 44.
Para. 125.
- 45.
Para. 123.
- 46.
Decision 92/521 Distribution of Package Tours during the 1990 World Cup, OJ 1992, L326/31.
- 47.
See Weatherill 2000, 275 for discussion inter alia of inconsistency in the handling of my complaint to the Commission.
- 48.
IP/00/591, 8 June 2000.
- 49.
- 50.
Case C-415/93 supra note 2, Para. 106.
- 51.
Para. 110 of the judgment; and see more fully (on this as on so many other things) the Opinion of A-G Lenz.
- 52.
And sometimes to the dismay of investors; the potential conflict of interest between economic and sporting motivation was illustrated by disquiet expressed over Manchester United's purchase of Rio Ferdinand, then under contract to Leeds United, in summer 2002 for £ 28 million; e.g., ‘Unappreciative investors cry foul at depreciating asset’, Financial Times, 23 July 2002, p. 21: analyst Stephen Ford is quoted as suggesting that Manchester United shareholders ‘may have preferred to see less money risked in player trading and more returned through the certainty of dividends’.
- 53.
- 54.
- 55.
- 56.
IP/01/3 14, ‘Outcome of discussions between the Commission and FIFA/UEFA on FIFA Regulations on international football transfers’, 5 March 2001: ‘formalisées’ in French, ‘formell besiegelt’ in German, phrases which, like the English version, will perplex the EC lawyer. Cf. Egger and Stix-Hackl 2002, 81, 90–91.
- 57.
‘We don’t accept this accord […] It creates a new category of workers at European level – footballers who will not benefit like others from the same social protection’, Laurent Dennis, FIFPro spokesperson, quoted in The Independent, ‘New transfer system threatens stability of the game’, 7 March 2001, p. 28.
- 58.
On discontinued proceedings before the Belgian courts, see Bennett 2001, 180. At EC level, a players' union brought an application claiming illegal failure to act on a complaint about the transfer system in Case T-42/01, SETCA-FGTB v. Commission, but the case was removed from the Court's register on 24 Jan. 2002, and the complaint (COMP/36.583) was rejected on 30 May 2002 as part of the Commission's closure of the investigation. Relevant documentation is collected at http://europa.eu.int/comm/sport/key_files/circ/a_circ_en.html.
- 59.
See Dabscheck 2003.
- 60.
IP/02/824, ‘Commission closes investigations into FIFA regulations on international football transfers’, 5 June 2002. The Commission does not propose to take the matter on to a formal plane.
- 61.
E.g., Case C-67/96, Albany International v. Stichting Bedrijfspensioenfonds Textielindustrie, [1991] ECR I-5751; Case C-2l9/97, Maatschappij Drijvende Bokken BV v. Stichting Pensioen -fonds, [1999] ECR I-6121.
- 62.
See generally Sect. 9.2 above.
- 63.
Lehtonen, supra note 19.
- 64.
Case C-415/93, supra note 2, Para. 106.
- 65.
See, e.g., Feess and Muehleusser 2002, 221.
- 66.
It may also be vulnerable to attack under national law, though this will vary State by State. E.g., for comment on the impact of German law, see Engelbrecht 2001, 49.
- 67.
Cf. Foster 2001.
- 68.
IP/02/824, supra note 60.
- 69.
Press Release No 425/00 of the German Government, 10 September 2000, currently available at www.eng.bundesregierung.de/top/dokumente/Pressemitteilung/ix_17866.htm.
- 70.
Quotes taken from ‘UEFA fears for future as transfer talks reach impasse’, The Independent, 3 March 2001, p. 26. See Sect. 9.6 below on the Nice Declaration.
- 71.
E.g., in 1999 the UK competition authorities blocked a proposed merger between BskyB, a satellite broadcasting company, and Manchester United, a football club, on the basis that it would operate contrary to the public interest; cm 4305, 1999. Among other factors it was thought that competition in the market for acquisition of broadcasting rights would have been restricted by BskyB’s more intimate involvement with the supply-side and that the gulf between rich and poor football clubs would be widened. For comment, see Tassano 1999, 395; Harbord and Binmore 2000, 142, and on the broader background, see Bose 1999.
- 72.
E.g., in the UK the consequence of the blocking of the BskyB/Manchester United merger, supra note 71, has been the acquisition by media companies of minority but not insignificant stakes in football clubs; see Brown 2000, Ch. 8.
- 73.
Notoriously in 2002 the 72 professional English Football League clubs operating below the top tier, the Premiership (comprising the leading 20 clubs), found expected substantial income from sale of broadcasting rights would not after all be forthcoming when the buyer, ITV Digital, which had attracted far fewer viewers than planned, was placed in administration. Despite dire predictions no club has (yet) been forced to close as a result. The collapse of the Kirch empire in Germany also featured broken agreements to pay large sums for rights to broadcast football. Cf. The Economist, ‘Passion, pride and profit: A survey of football’, 1 June 2002.
- 74.
Comm. Dec. 2001/478, OJ 2001, L 171/12.
- 75.
Paras. 49–61 of the Decision. The Commission will monitor change in market structure, particularly in the wake of the ‘Internet revolution’, Para. 56.
- 76.
Para. 59.
- 77.
IP/01/583, 20 April 2001.
- 78.
For a summary of the unclear scope of ‘non-economic’ aspects to Art. 81(3), see Whish 2001, 125–128. Neither Commission nor Court has yet offered satisfactory explanation of the impact of Art. 151(4) EC on Art. 81 EC, and the issue, which also engages inter alia the impact of Arts. 6 and 153(2), escapes the scope of this paper. For a taste, see Monti 2002, 1057, esp. at 1069–78.
- 79.
Supra note 74, Para. 60 of the Decision.
- 80.
- 81.
Much of the economic literature is North American in origin. For analysis, see Dobson and Goddard 2001, especially Ch. 3. Cf. Rosen and Sanderson 2001, F47, arguing US approaches to locating balance punish success while European approaches punish failure.
- 82.
- 83.
The collectively sold package may be (and increasingly is) broken down into constituent units – live matches, recorded highlights, etc. – but this does not affect the basic issue, which is the suppression of sales by individual clubs. On the distinct question of exclusive sale see Fleming 1999, 143.
- 84.
Cf. Cave and Crandall 2001, F4, especially at F18.
- 85.
Re the supply of services facilitating the broadcasting on television of Premier League football matches, [1999] UKCLR 258.
- 86.
E.g., in the form of a collectively-sold bloc of matches alongside which remaining matches could be made available on an individual basis. Cf. Szymanski 1986, Ch. 23; Spink and Morris 2000, p. 165.
- 87.
Para. 31 Gesetz gegen Wettbewerbsbeschränkungen, as amended with effect from 1 January 1999.
- 88.
IP/01/1043, 20 July 2001.
- 89.
IP/02/806, 3 June 2002; OJ 2002, C 196/3. So, e.g., in the UK live Champions' League matches were available only on ITV in 2002/03, but a greater number of live matches, screened by both ITV and Sky, will be available from 2003/2004.
- 90.
‘Background Note’, Memo 01/271, 20 July 2001.
- 91.
COM (1999) 644/1 and/2. See further below, Sects. 9.5 and 9.6.
- 92.
Speech delivered in Brussels at a conference on ‘Governance in Sport’, 26 February 2001, available as Speech/01/84 via http://europa.eu.int/comm/sport/key_files/comp/a_comp_en.html.
- 93.
Support for this approach is expressed by the Committee of the Regions, Opinion on the European Model of Sport, OJ 1999, C 374/56, Para. 3.8.
- 94.
‘Project Gandalf’, the European Football League, was notified to the Commission, OJ 1999, C 70/5, and though the breakaway has not (yet) been executed, the threat was enough to generate changes by UEFA that benefited larger clubs. See, e.g., van den Brink 2000, especially 364–65. The ‘G-14’ group of leading clubs met Commissioner Reding on 16 April 2002; see Commission ‘Key Files’, supra note 92.
- 95.
- 96.
Cf., however, note 78 supra and the admittedly thoroughly ambiguous role of the Querschnittsklausel Art. 151(4) EC in shaping the ambit of Art. 81(3).
- 97.
Cited supra note 91. See Weatherill 2000, 282.
- 98.
Case C-264/98, Tibor Balog v. Royal Charleroi Sporting Club, referred by the Tribunal de première instance de Charleroi under an order of 2 July 1998, removed from the Court's register on 2 April 2001. An Opinion by A-G Stix-Hackl, dated 29 March 2001, has not been made officially available (its hearing was ‘cancelled’, according to Court Press Release No 11/2001, 29 March 2001), but favours a finding of incompatibility with Art. 81; sustainable development has been secured by the re-cycling of the analysis in the unpublished Opinion in Egger and Stix-Hackl 2002, 81.
- 99.
Deliège, supra note 18, Paras. 36–38 of the judgment; Lehtonen, supra note 19, Paras. 28–19 of the judgment.
- 100.
- 101.
Pons, Deputy Director General of (what was then) Directorate-General IV, confesses the difficulties involved in Pons 1999, Ch. 6, plus discussion in Ch. 9. For recent statements of practice by officials (including Pons), consult http://europa.eu.int/comm/sport/key_files/comp/a_comp_en.html; and see also Pons 2002, 241.
- 102.
IP/99/965, 9 December 1999.
- 103.
E.g., Case C-250/92, Gottrup Klim v. DLB, [1994] ECR I-5641. See also A-G Lenz in Bosman, supra note 2, Paras. 262–276.
- 104.
Case C-309/99, J.C.J. Wouters, J.W. Savelbergh, Price Waterhouse Belastingadviseurs BV v. Algemene Raad van de Nederlandse Orde van Advocaten, judgment of 19 February 2002, nyr, Para. 97.
- 105.
And is controversial in its application by the Court in that particular context; see annotation by Vossestein 2002, 841.
- 106.
- 107.
- 108.
- 109.
- 110.
- 111.
Memo/02/127, 5 June 2002.
- 112.
Rejection of COMP/36.583 supra note 58.
- 113.
- 114.
This will change if the ‘modernization’ of competition policy initially proposed in a developed fashion in the Commission's 1999 White Paper, OJ 1999, C 132/1, comes to fruition.
- 115.
- 116.
- 117.
Wouters, supra note 104, Para. 122.
- 118.
Deliège, supra note 18, Lehtonen, supra note 19, in particular the Opinions of A-G Cosmas and A-G Alber respectively; and similarly the ‘lost’ Opinion of A-G. Stix-Hackl in Balog, supra note 98. See Mortelmans 2001, especially 625–9.
- 119.
The new transfer rules, which potentially attract the attention of both Arts. 39 and 81, would not meet it, in my view, see Sect. 9.4.7.2 above.
- 120.
Rejection of COMP/36.583, supra note 58.
- 121.
Section 9.4.1; Rejection of COMP/37.124, 16 April 2002.
- 122.
See in particular Sects. 9.4.7.3, 9.4.8.2 and 9.4.8.4.
- 123.
IP/99/133, 24 February 1999.
- 124.
The conclusions are available via http://europa.eu.int/comm/sport/index.html.
- 125.
Supra note 91.
- 126.
Cf. ‘Project Gandalf’ and the ‘G-14 group’, supra note 94.
- 127.
COM (95) 590.
- 128.
Case C-415/93, supra note 2, Para. 106 of the judgment. Cf. Sect. 9.2 above.
- 129.
See Weatherill 2000.
- 130.
- 131.
Supra note 95.
- 132.
Deliège, supra note 18, Paras. 41–42 of the judgment; Lehtonen, supra note 19, Paras. 32–33 of the judgment.
- 133.
This is duly quoted in the Commission's memorandum of 5 June 2002, supra note 3.
- 134.
Documentation is available via http://europa.eu.int/comm/sport/info/events/forum200_en.html.
- 135.
Working Group on ‘Taking account of sport in Community policies and measures’. Documentation is available via http://europa.eu.int/comm/sport/info/events/forum2002_en.html.
- 136.
COM (2001) 584, 16 October 2001.
- 137.
The Economic and Social Committee, endorsing the Proposal, gravely explains that ‘The Olympic spirit is an unwritten law. A spirit cannot be codified or written down, and it eludes description. It must be experienced’, SOC/092, 24 April 2002, Para. 1.6, citing a Greek Government website.
- 138.
OJ 2002, C 275E/70. A budget of € 11.5 million is envisaged.
- 139.
- 140.
Admittedly this is not a one-way street. In Weatherill 2004, Ch. 4, p. 113 et seq., I argue that sport does not only invoke the cloak of culture to shelter itself from normal commercial assumptions (taking collective broadcasting and the transfer system as examples) but also, and under equally contestable assumptions, it may find itself required to make commercial sacrifices as a consequence of its cultural status, the example being the ‘protected events’ provisions found in Directive 89/552, as amended by Directive 97/36, as well as under some national laws, which limit its ability to sell rights to broadcast some events to the highest bidder. See also on recent practice Craufurd Smith and Boettcher 2002, 107.
- 141.
- 142.
See in particular Sects. 9.4.7.3, 9.4.8.2 and 9.4.8.4; and more generally Sect. 9.6.
- 143.
Memo/02/127, supra note 3.
- 144.
- 145.
Cf. supra note 94.
- 146.
‘Europe's football clubs hoping to curb costs’, Financial Times, 16 May 2002, p. 8. The report adds to the reader's mirth by declaring this is ‘the first time leading football clubs have unilaterally [sic] committed themselves to avoiding overspending’.
- 147.
Albany, supra note 61.
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Weatherill, S. (2014). ‘Fair Play Please!’: Recent Developments in the Application of EC Law to Sport. In: European Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-939-9_9
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