ESLJ Volume 1 Number 3 Reviews
Professional Sport in the EU: Regulation and Re-Regulation,
by Andrew Caigner and Simon Gardiner (eds.).
The Hague: T.M.C. Asser Press, 2000.
Pp.368, £55.00 (hb),
ISBN 90 6704 126 2.
Reviewed by:
GEOFF PEARSON
Football Industry Group,
University of Liverpool
According to Roger Blanpain's foreword, Andrew Caigner and Simon Gardiner's collection of edited texts on Professional Sport in the EU: Regulation and Re-Regulation is, 'a timely and valuable contribution to this important debate in Europe' (p.vi). In terms of its timeliness, this claim (which is also made by the editors themselves at p.293) highlights both the strengths and weaknesses of this book. Professional Sport in the EU is timely in the respect that it is published in a period when great upheavals are occurring within sport, particularly football, as a result of the application of key principles of EU legislation. The recent abolition of the football transfer system following the European Commission's negotiations with FIFA, the outcome of the Valery Karpin and Tibor Balog cases, and the current European Commission investigation into the block selling of UEFA Champions League rights all highlight the potential importance of a book of this kind within the study of the professional sports industry.
However, for this very reason, Professional Sport in the EU is also badly timed, being written before the outcomes of these upheavals were evident. It was published before the negotiations between the European Commission and the football authorities over the illegalities of the transfer system ended with FIFA's new regulations, announced in Buenos Aires in July 2001, and before the controversial Circular 769 that could effectively provide footballers whose contracts are signed after 1 September 2001 with almost total freedom of movement. The book was also completed before the Balog case reached its anticlimactic ending, leaving the legality of the transfer system under competition law untouched. As a result, it is unable to provide comment on the decisions themselves and their existing or potential impact upon the business of professional sport. Fortunately, many of the contributors are able to second-guess most of the results of these negotiations and challenges (the trend in the sport versus EU disputes has been the absolute predictability of the outcome of the various legal challenges). Gardiner and Roger Welch's chapter on the migration of professional sports performers post-Bosman, for example, identifies the illegalities under EU law of the football transfer system, and predicts the 'significant changes to the transfer system as it stands' (p.123) that ultimately took place.
So in this respect, Professional Sport in the EU promises more than it actually delivers. What went on behind closed doors between summer 2000 and 2001 has gone completely unanalysed, as has the legality of the new regulations. There will be a fair few sports academics - not to mention sports lawyers - picking up this text in the hope that it may clear up a few of the ambiguities of the new regulations only to be disappointed. However, with legal regulation of sport by the EU increasing at pace, this is a dynamic and fast-moving area that tends not to leave convenient gaps for the publication of explanatory texts. All contributors seem to recognise this constant state of flux and the editors are quick to highlight that Professional Sport in the EU is a text that is focused more on exploring and engaging with debates about the possible re-regulation of sport rather than proposing any concrete solutions.
The subject of legal regulation by the EU is of vital importance to the professional sports industry, even if it refuses to acknowledge this, and an area worthy of comprehensive analysis in a book such as this one. Although the subject area has been the focus of considerable analysis in sports law textbooks as well as both academic and practitioner journals, Professional Sport in the EU attempts to build and expand upon the previous debates. One such issue engaged with throughout the book is the divergence between professional sport as a socio-cultural phenomenon that ideally should be exempt from potentially damaging external legal intervention, and the very real need for the EU to regulate what is becoming an increasingly commercial area of pan-European activity. As the more successful elements of the industry grow and become more disconnected from their cultural and community roots, so professional sport ventures deeper into the world of commerce and industry. In this new world, sport must face up to the realities of existence as a big business, in particular the need to abide by domestic and European laws governing industry. As Paul Spink and Phillip Morris explain, 'The growing commercial significance of professional football has ensured the unwelcome attention and intervention of the law' (p.166). The financial rewards for this move are undoubtedly great, but are the risks for professional sport greater?
In addition, the increasing commercialisation in all areas of professional sport means that the oft-heralded difference between 'economic' and 'sporting' rules is sometimes difficult to distinguish. How, for example, in permitting discrimination on the grounds of nationality in the selection of international teams, can the decisions in Walrave and Dona conform with the EU Treaty, when such selections (or non-selections) can have such a direct economic impact in terms of employment and commercial opportunities for sportspersons? This conundrum is focused on specifically in Paul McCutcheon's chapter on national eligibility rules after Bosman, where the author recognises the difficulty in rationalising the professed legality of national eligibility rules. 'When viewed from one angle', argues McCutcheon, 'some rules might seem to be purely sporting in nature yet when evaluated from a different perspective they assume an economic dimension. National eligibility rules provide an example par excellence' (p.134).
The other ongoing theme is the incompetence of many sporting governing bodies, particularly football's, to regulate themselves satisfactorily. Examples of internal regulation by sports' own governing bodies resulting in highly unsatisfactory and embarrassing outcomes are abundant. Furthermore, the desire of governing bodies to purport to preclude any recourse to law, however contentious or illegal an internal tribunal's decision, makes it highly unlikely that professional sport could ever be granted a complete immunity from EU law and given freedom to regulate itself in all matters.
As several contributors argue, it is difficult to support granting governing bodies the autonomy to regulate themselves in economic matters when they have thus far proved unable to do so reliably. Governing bodies need to make it clear that their intentions are protecting the integrity of competition and the rights of fans (regardless of income), as well as providing financial support to the more vulnerable clubs, leagues and individual participants. Until they can demonstrate that these values - rather than the mere pursuit of further financial gain for themselves and the bigger outfits - provide their overriding objective, self-regulation is likely to be seen as a non-starter by the EU's authorities. Ken Foster, evaluating the problems faced by professional sport in complying with EU competition law, argues that, 'The commission should use its powers to insist on much greater redistribution [of revenues to weaker leagues and clubs] as a condition of granting exemptions under Article 81(3)' (p.60). This is a conclusion that would appear to be the obvious way forward, but one that unfortunately looks unfeasible when viewed alongside the commercial aspirations of the larger clubs and governing bodies.
Finally, the arrogance (and ignorance) demonstrated by many of professional sport's governing bodies with regard to the authority and applicability of EU law to their sport has made it difficult for any realistic compromises to be achieved between sport and the European Commission. Spink and Morris talk about the 'uncooperative attitude, which is so typical of the football industry's approach to Europe' (p.187). This could hardly have been better demonstrated than in the 'negotiations' between the Commission and the football authorities over the reform of the transfer system. If FIFA had not 'pulled the rug' from under the feet of UEFA and the G-14 clubs, Europe's clubs and governing bodies would probably still be refusing to modify a transfer system that permitted the buying and selling of football players as if they were nothing more than 'a piece of meat' (Lee Bowyer, ESPN.com, Soccernet England, 13 May 2002).
Professional Sport in the EU is split into four parts, Theoretical and Policy Perspectives, Frontiers of Regulatory Mechanisms, The Re-Regulation of Football: A Quest for Order, and Comparable Perspectives: Localisation and Specificity, each part containing three or four chapters. Although there are several important arguments and themes that run throughout the whole of this book, some contributions appear almost entirely disconnected to the general debate identified in the introduction and postscript (most notably the short chapters on sports regulation in Poland, Greece and Belgium in part 4). Other chapters, however, integrate well, either by introducing new issues or ideas, or by providing useful outlines of some of the most important areas with regard to EU regulation. For example, in the longest chapter of the book, Spink and Morris examine the question of broadcasting rights under EU competition law. This is one of the best overviews of this area around, scrutinising the legality under EU law of the sale of exclusive collective TV rights and concluding that 'there is little chance the current arrangements will survive to be replicated in any future deal. It will hereafter be necessary to opt for less restrictive and loser forms of commercial association and co-operation' (p.195).
In their postscript, the editors attempt to draw together some overall conclusions as to how professional sport can be re-regulated. They state that, 'The purpose of this book is to encourage and contribute to a debate about the future of professional sport in the EU as far as it relates to governance and, more particularly, to explore the possibilities of the re-regulation of sport' (p.291). Professional Sport in the EU certainly achieves this first aim, to the extent that sometimes this engagement with long-running debates can be frustrating, with several conclusions to chapters so nuanced and heavily qualified as to leave the reader with more questions than answers. But what conclusions can be drawn as to its second objective? There is agreement between contributors that the EU cannot leave the regulation of professional sport to the governing bodies alone, so how then should professional sport in the EU be re-regulated? Some contributors argue for greater direct regulation of sports governing bodies by the European Commission, whilst others recommend that sports organisations should revise their own regulations in line with existing EU law, with the Commission having an active role in debate and discussion to this end. Given the unhelpful attitude of many governing bodies, the latter unfortunately seems unrealistic.
At present, the subject of the regulation of professional sport in the EU is one of considerable importance. However, without analysis of some of the most significant recent developments, there is only so much that can be said about EU law and its applicability to sport, and the feeling is that the issues could have been evaluated in less than the 368 pages on offer here. There is a considerable overlap and repetition of the more obvious issues and cases (Bosman being the most obvious example) and many of the arguments are already well trodden. That said, Professional Sport in the EU fills an important gap in sports academia, and it is only a pity that its pages are unlikely to be turned by those in the sports governing bodies who need to understand the issues more clearly than anyone.
This is a book review published online on March 6th 2005.
Citation: Pearson, Geoff, 'Professional Sport in the EU: Regulation and Re-Regulation, Andrew Caigner and Simon Gardiner (eds.)', Entertainment and Sports Law Journal (ESLJ) Volume 1, Number 3 <http://www.warwick.ac.uk/go/eslj/issues/volume1/number3/reviews/pearson/>
