The "Independent European Sport Review": A Critical Overview

In 2005 the UK Presidency of the European Union initiated a review of European football with a mandate 'to produce a report, independent of the Football Authorities, but commissioned by UEFA, on how the European football authorities, EU institutions and member states can best implement the Nice declaration on European and national level[s].' (1) This illustrates two prominent features of the Review: its strong emphasis on the interests of UEFA as the collective interests of stakeholders and the focus of the report on football, rather than sport in general. The 'Terms of Reference have been drafted in consultation with UEFA and... led by UEFA....' It might seem unfair to generalise the Review as commissioned by UEFA, written by UEFA about UEFA since the sports ministers of some of the EU Member States were 'part of the governance of the report' (2) and a public consultation process was undertaken prior to publication. However, in particular consumers and the greater public whose interests the EC Treaty principles seek to safeguard did not feature prominently within the reasoning of the final document despite having been invited to take part in the consultation process. It should be recalled that although some representatives of the Commission are thanked for their interest in the Review, (3) its terms of reference were set by the institutionally distinct Presidency of the European Union rather than the Commission as the guardian of the Treaties. Sport and Economic Activity The UEFA-commissioned Review is founded in part on an exploration of the 'specificity of sport' thesis, according to which that sports governing body embodies features that render its otherwise controversial internal market behaviour justifiable. It will be recalled that there is a developed legal distinction between sport as economic activity and that which is not economic. Where no appreciable economic impact occurs, actions do not fall foul of internal market fundamental freedoms. Provisions that restrict trade must be proportional, that is, limited to measures that are necessary to achieve recognized non-market objectives. Competition law employs similar thresholds of economic relevance. Thus, where there is no appreciable economic impact, the specificity of sport not only makes policy sense but is already a legal reality. Rules that are not directly linked to explicit economic objectives in so far as they do not entail a direct t...