Sports cases in the European Court of Justice in recent years Summer School in Human Sciences The Organisation of Sport in the EU Kaisa Jännes Professor Anna-Katriina Salmikangas 30.5.2006
2 Introduction The Court of Justice is composed of 25 judges and eight Advocates General appointed by the governments of the Member States for a six year term. They are lawyers who possess necessary qualifications, are competent, and whose independence is beyond doubt. The jurisdiction of the Court is clearly defined to enable it properly fulfilling its task. The Court deals with various types of proceedings. For example, references for preliminary rulings through which any European citizen can seek clarification of the Community rules affecting him, actions for failure to fulfill obligations enabling the Court of Justice to determine whether a Member State has fulfilled its obligations under community law, actions of annulment through which the applicant seeks to cancel a measure by an institution, actions for failure to act, appeals, and reviews. Regardless of the type of the case, the procedure always includes a written stage, and usually an oral stage. (The Court of Justice of the European Communities ) There are important consequences of the judgments given by the Court, especially preliminary rulings, for the daily life of European citizens. The most important areas of Community law include free movement of goods and persons, freedom to provide services, equal treatment and social rights, fundamental rights, and European citizenship (The Court of Justice of the European Communities) In sports, particularly the free movement of persons and the freedom to provide services has raised most of the cases.
3 Sport and freedom of movement in Europe Problems between athletes and clubs or federations have surfaced about the mobility of athletes in the EU (Van den Bogaert, 2005). Nationality requirements imposed by sporting rules are an issue dealt by The Court of Justice. In the regulations of the sporting associations, nationality clauses usually take two different forms: either they exclude athletes from playing for a certain team or from taking part in a sporting competition on grounds of their (foreign) nationality; or they consist of quantitative restrictions for clubs to engage and/or field players of a foreign nationality in official contests (Van den Bogaert & Vermeersch, 2006) Matches between national teams are no longer of purely sporting interest. All though national pride and identity play a key role in encounters between national teams, and at least should, outweigh the economic and financial interests, and as such are sheltered from the application of Community law (Van den Bogaert & Vermeersch, 2006) The reality is that matches between national teams often have become commercially important events. In the case of Christelle Deliége vs. Ligue Francophone de Judo et Disciplines ASBL and others (2000) the selection rules for competition were contested. Christelle Deliége, a top level Belgian judoka, considered that the Belgian judo federations had improperly disturbed the development of her career by not allowing her to take part in important competitions (The Court of Justice of the European Communities, Cases C-51/96 and C-191/97 Christelle Deliége v Ligue Francophone de Judo et Disciplines ASBL and Others) Furthermore, she thought that she engaged in economic activity involving a freedom guaranteed by Community law. A ruling was sought in regards to the compatibility of the rules of the sports authorities with the freedom to provide services, particularly in the case of professional or semi-professional sportsmen selected by their national federation in order to be able to take part in international competitions. The selection rules in this case inevitably had the effect of limiting the number of participants in a tournament, but such a limitation was regarded as being inherent in the conduct of an international high-level sports event, which necessarily involves certain selection rules or criteria being adopted and could not in themselves be regarded as restricting the freedom of movement. The Court also thought that the
4 system for selecting participants must be based on a large number of considerations unconnected with the personal situation of any athlete, such as the nature, the organization and the financing of the sport concerned. Similarly, a rule requiring athletes to have the nationality of the country of which they represent in international sporting events does not in itself constitute a restriction on the Treaty free movement provisions (The Court of Justice of the European Communities, Cases C-51/96 and C-191/97 Christelle Deliége v Ligue Francophone de Judo et Disciplines ASBL and Others) The Court pointed out, that even though a sports federation classifies its members as amateurs, it does not necessarily mean that they do not engage in economic activity, and that the circumstance where the representatives for the Olympic Games are chosen based on the placing achieved in these competitions does not justify treating those competitions as events between national teams, in which case they might fall outside the Community law. The Court therefore ruled that sports activities are capable of involving a number of separate, but related, services. Sports events which are open to the public, have television broadcast, and may be of interest to the advertisers and sponsors, provide services of economic nature (The Court of Justice of the European Communities, Cases C-51/96 and C-191/97 Christelle Deliége v Ligue Francophone de Judo et Disciplines ASBL and Others) It is necessary to limit the number of participants in international events at high level. This process involves certain selection rules or criteria, which may not be regarded as limiting the freedom to provide services. Therefore, it is up to the national federations to lay down the appropriate rules and make selections. In sports, the landmark case involving the free movement of persons was the Bosman case in 1995, and is often used as a reference in the more recent cases dealing with the free movement of sports professionals in Europe. Jean-Marc Bosman played soccer in the 2 nd division of the Belgian football league. After his contract had expired he wanted to change teams, however, the new team (Dunkerque, France) wasn t prepared to pay enough of a transfer fee, so his current team (RFC Liége, Belgium) refused to let him go. This led to reduction in his wages, and he took his case to the European Court of Justice in Luxemburg and sued for
5 restraint of trade (Wikipedia) On December 15, 1995 the court made its ruling that allows professional football players in the European Union free movement to another club at the end of their contract. Additionally, if there is 6 months or less remaining on the players contract with their current club, the player can sign a pre-contract with another club. Furthermore, imposing quotas restricting the number of non-nationals allowed in teams, discriminating against nationals of the EU states, was also prohibited by the Bosman ruling (The Court of Justice of the European Communities). After the ruling, quotas could only be imposed to restrict the number of non-eu players on each team (Wikipedia) The Court s dismissal of the nationality clauses in Bosman appears to leave no longer room for sporting federations to treat domestic players more favourable than foreign players with the nationality of a country belonging to the EU or the European Economic Area (EEA) (Van den Bogaert & Vermeersch, 2006) Regardless of the Bosman ruling, many associations and sporting federations still impose a quota with regard to third-country nationals at club level, however, the grounds for these nationality restrictions are getting weaker. For example, under the new home-grown rule adopted by UEFA, each club must have a certain number of nationally trained players under contract. This appears to favour local players and therefore runs the risk of being qualified as indirectly discriminatory. This could be the next opportunity for the Court of Justice to clarify the position of the EU on nationality clauses (Van den Bogaert & Vermeersch, 2006) In 2003, the Court was invited to express its opinion on the legality of such nationality requirements. The case of Kolpak involved a professional handball goalkeeper of Slovak nationality who played in the German second division and who challenged the rule of the German handball federation, stating that clubs were entitled to field only two non-eu/eea nationals in official matches (The Court of Justice of the European Communities, Case C-438/00 Deutscher Handballbund ev v Kolpak [2003] ECR I-) Mr. Kolpak requested that he be issued with a license without any reference to nationals of non-member countries. He considered himself to be entitled to take part in competition without restrictions on the basis of the Association Agreement between the European Community and Slovakia, which guarantees equal treatment to Slovak nationals regarding working conditions, salary and dismissal in the EU in relation to the
6 host Member State s nationals (The Court of Justice of the European Communities, Case C-438/00 Deutscher Handballbund ev v Kolpak [2003] ECR I-) The Court stated that within the context the principle of non-discrimination based on nationality is directly applicable. Additionally, the free movement of workers was found applicable to rules drawn by sporting association as well as public authorities, even though Slovakia is not a Member State, the principle is still relevant to the sport federation, in this case the DHB. The Courts decision was that discrimination prohibited by the Association Agreement takes place when a non-member national, in this case Mr. Kolpak, has a limited opportunity in comparison to nationals of Member States (The Court of Justice of the European Communities, Case C-438/00 Deutscher Handballbund ev v Kolpak [2003] ECR I-) Similarly, in the case of Simutenkov, a Russian footballer playing for Tenerife, the Court followed exactly the same line of reasoning as in Kolpak, enabling Simutenkov to base his claim for a Community licence on the Partnership Agreement between the European Communities and Russia (The Court of Justice of the European Communities, Case C-265/03 Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol) In 2000, a case concerning the transfer of players, and again the equal treatment of nationals of Member and Non-Member states, arose when Jyri Lehtonen, a Finnish basketball player, signed a contract with a Belgian team to take part in the final stages of the Belgian championship on the 3 rd of April 1996. His team was penalized twice for fielding him, after a complaint from another club to the Belgian federation (FRBSB) of a breach of FIBA rules (The Court of Justice of the European Communities, Case C- 176/96 Jyri Lehtonen and others vs. Fédération Royale Belge des Sociétés de basketball ASBL) In basketball, the International Basketball Federation (FIBA) is the governing body. FIBA rules govern the international transfer of players, and these rules must be taken into consideration by national federations when setting their own rules of transfer. According to FIBA rules, a foreign player who has been transferred after 28 th of February from another European zone club is not allowed to be fielded. However, it is possible for players from non-european clubs to be transferred and play after that date
7 (The Court of Justice of the European Communities, Case C-176/96 Jyri Lehtonen and others vs. Fédération Royale Belge des Sociétés de basket-ball ASBL) The Court of Justice was asked whether the rule of sports federation prohibiting a club to field a player in a competition if he has been being signed after a certain date, are compatible with the freedom of movement for workers. In circumstances where a sport constitutes as economic activity, it must adhere to the Community law. However, excluding foreign players from matches based on rules that are not of an economic nature, are not contrary to the principle of freedom of movement for persons (The Court of Justice of the European Communities, Case C-176/96 Jyri Lehtonen and others vs. Fédération Royale Belge des Sociétés de basket-ball ASBL) The Court stated that participation in matches is the essential purpose of their activity and a rule restricting that activity may also restrict the chances of employment. The rule was considered to be an obstacle to the freedom of movement for workers, but may be justified on non-economic grounds concerning sport as such (The Court of Justice of the European Communities, Case C-176/96 Jyri Lehtonen and others vs. Fédération Royale Belge des Sociétés de basket-ball ASBL) The assistant to the Court of Justice, the Advocate General who acts independently and impartially examined the facts and law involved in the case. In his view, Mr. Lehtonen as a professional player is a worker and entitled to the freedom of movement (The Court of Justice of the European Communities, Opinion of Advocate General Alber in Case C-176/96) The Belgian federation was concerned about the distortion of the competition by the engagement of new players. The purpose of this rule both nationally and internationally is of course prevent the possibility of teams signing new and perhaps better players in the closing stages of competition, which could truly distort the results. In fact, the Advocate General suggested the possibility of a delayed transfer period taking effect at a later stage during the season When seeking justification to staggered transfer deadlines, two situations emerged where it could be justified. If the transfer period for players previously playing in another Member State is not shorter than that for players from non-member countries it could be justified according to the Advocate General. In other words, there should be equal opportunities for players to transfer regardless of their geographic or political area
8 of work. Preventing a transfer movement could be another aim for the staggered transfer deadline, however, the Advocate General has doubts concerning the necessity, appropriateness and proportionality of transfer deadlines for this purpose (The Court of Justice of the European Communities, Case C-176/96 Jyri Lehtonen and others vs. Fédération Royale Belge des Sociétés de basket-ball ASBL) Maintenance of a certain balance, both sporting and financial, between sport clubs, ensuring the regularity of competitions and homogeneity, or preservation of the essential element of unpredictability of outcome seem to allow the special treatment of sport issues under Community law (Van den Bogaert & Vermeersch, 2006) Sport and Competition law in Europe In 2004, David Meca-Medina and Igor Majcen, two long distance swimmers, challenged the compatibility of the IOC s anti-doping legislation with the Community competition rules and the free movement of services. The athletes were tested positive for Nandrolone, an anabolic substance, during the World Cup, and were subsequently suspended from competition initially for four years under the Olympic Movement s Anti-Doping Code and later reduced to two years by the Court of Arbitration of Sport after certain scientific experiments had showed that Nandrolone s metabolites could be produced endogenously by the human body at a level which can exceed the accepted limit (The Court of Justice of the European Communities, Case T-313/02 David Meca- Medina and Igor Majcen v Commission of the European Communities) According to the Court of Justice, sport is subject to Community law only as an economic activity. In contrast, Community law does not cover sporting rules which have nothing to do with economic activity, i.e. the rules of the game, thus purely sporting legislation, such as the anti-doping measures are not subject to the Community provisions. The Court considered that even if high level sport has become an economic activity and anti-doping measures may have economic consequences for sports professionals, they do not have economic objective. Anti-doping measures have the purpose of preserve the spirit of fair play as well as the health of athletes. In the opinion of the Court of First Instance, without fair play, sport, be it amateur or professional, is no longer sport. That purely social objective is sufficient to justify the campaign against doping. In this case the application was dismissed as unfounded (The Court of Justice
9 of the European Communities, Case T-313/02 David Meca-Medina and Igor Majcen v Commission of the European Communities) Athletes who consider the community is to blame for their unlawful and unethical behaviour are a disgrace to the professionals in sport, particularly other athletes. It is not the legislation that is wrong and should be challenged; the finger should be pointing towards the athlete who has used questionable methods to achieve sporting success. In the case of The Royal Sporting Charleroi F.C. and G-14 vs. International Football Federation (FIFA) in 2006, thought to be the second landmark case in football, the clubs accuse FIFA of unlawful use of club players in national teams (EurActiv.com). One of the Belgian club The Royal Sporting Charleroi F.C. players, Abdelmajid Oulmers, was injured playing for his home country Marocco in 2004 and the club claims this damaged their hopes of success. The clubs want the current FIFA rules on the compulsory release of players for international matches judged illegal or amended through a dialogue with the clubs (EurActiv.com) The G-14 is also seeking 860 million euro compensations from FIFA for the costs incurred of unavailability of players due to injury after playing in national teams. Now it is up to the European Court of Justice to decide whether FIFA riles comply with the EU legislation on competition and free movement of workers (EurActiv.com) FIFA was satisfied with the decision of the Belgian Commercial Court of Charleroi to reject the G-14 demand fro 860 million euro, however, the Charleroi Court decided to refer the case to the European Court of Justice (ECJ) in the question of the legality of FIFA s rule on releasing players. This decision was based on the need for new interpretation for the uniform application of the Community law through the EU (EurActiv.com) On the other side, the G-14 wishes clubs to be more recognized at the international level, and believes the existing structure prohibiting clubs from being part of the decision making process is out of date and unfair (G-14). The case is still pending and the ECJ is not expected to rule on this before spring 2008. What ever the outcome of this case, the players should be heard. If they want to represent their country in any shape or form, they should be allowed to, and no club as an employer or governing body should have the right to restrict this. However, it is another question, who should be responsible for the possible injuries and costs of it. It
10 would be unfair to rely on the club to provide insurance for games in which the player is not representing the team in question. However, injuries are part of sports and should not be considered caused by representing your country. If compensations should be paid, it is the athlete who suffers the most, and puts their body at risk every time they step on that pitch, thus it is him or her who should be compensated not the team they represent.
11 References EU News, Policy Positions & EU Actors online http://www.euractiv.com/en/sports/ecj-rule-second-landmark-case-football/article- 155382.htm Referred to 22.5.2006. G-14 http://www.g14.comg14accueil/print.asp?newsid=5465 The Court of Justice of the European Communities http://curia.eu.int/en/actu/communiques/cp03/aff/cp0335en.htm. Referred to 23.5.2006. Case C-438/00 Deutscher Handballbund ev v Kolpak ECR I-4135. The Court of Justice of the European Communities http://curia.europa.eu/jurisp/cgibin/form.pl?lang=en&submit=rechercher&alldocs=alldocs&docj=docj&docop=docop &docor=docor&docjo=docjo&numaff=c- 265/03&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100.htm Referred to 30.5.2006. Case C-265/03 Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol The Court of Justice of the European Communities http://curia.europa.eu/jurisp/cgibin/form.pl?lang=en&submit=rechercher&alldocs=alldocs&docj=docj&docop=docop &docor=docor&docjo=docjo&numaff=t- 313/02&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100.htm Referred to 23.5.2006. Case T-313/02 David Meca-Medina and Igor Majcen v Commission of the European Communities The Court of Justice of the European Communities http://curia.eu.int/en/actu/communiques/cp00/aff/cp0030en.htm. Referred to 23.5.2006. Case C-176/96 Jyri Lehtonen and others v Fédération Royale Belge des Sociétés de basket-ball ASBL The Court of Justice of the European Communities, Opinion of Advocate General Albers http://curia.eu.int/en/actu/communiques/cp99/cp9944en.htm. Referred to 23.5.2006. Case C-176/96 Jyri Lehtonen and Castors Canada Dry Namur-Braine v Fédération Royale Belge des Sociétés de basket-ball ASBL The Court of Justice of the European Communities http://curia.eu.int/en/actu/communiques/cp00/aff/cp0029en.htm. Referred to 23.5.2006. Cases C-51/96 and C-191/97 Christelle Deliége v Ligue Francophone de Judo et Disciplines ASBL and Others
12 The Court of Justice of the European Communities http://curia.eu.int/en/instit/presentationfr/cje.htm. Referred to 22.5.2006. Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU Post Bosman, Kluwer Law International, The Hague, 2005. Van den Bogaert, S. & Vermeersch, A., Sport in the European Union: All sound and no fry? Maastricht Working Papers, Faculty of Law, 2006.