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The EU Commission's White Paper on sport was clearly disappointing to the sports governing bodies. These bodies had used some of the revenues from their sports to lobby in vain for extra tolerance to be given to their activities. Whether they actually deserve such tolerance is a matter on which there are differing views – even within their own membership. What is absolutely clear however is that they are not about to give up: the Brussels offices have been established and the advisors appointed. They are bound to be saying that the removal of the reference to undistorted competition in the new Treaty shows that there is everything still to play for. But is it?
To answer this question it is necessary to take a step back.
In the governing bodies' ideal world, they would be free to determine who takes the field at club level. In this utopia, the national character of play is retained. (See Michel Platini's fond references to "typical English goals", -by which he means a larger centre forward planting the ball in the net from a cross delivered by a winger.) More importantly, in this ideal world, if players can't follow the money so easily, small countries have the chance of having a decent national league thus preserving the symmetry of the sports pyramid structure. Though the governing bodies don't like the application of many laws to their activities, free movement of players, which allows them to follow the money, is the real concern. UEFA's controversial "home grown" rule (which probably infringes EU law) and is designed to stop the richest clubs from signing up the best players takes us to the heart of the matter.
On free movement there are two pertinent points to be made. The first of these is that the governing bodies obviously can't stop some countries being richer than others and cannot do anything about emigration from the poorer to richer countries. Only the governments in the richer countries can do anything at all about the latter and when there are labour shortages, it is hard to see why sport can be treated differently (see the Kolpak case).
The second point is that other legal systems (not just the EU's) are equally hostile to restrictions on player movement. Over 40 years ago now, the courts in New Zealand prevented a governing body from restricting an amateur rugby player in New Zealand from going to Australia to earn his living. This decision helps to explain the dominance of professional rugby league in Australia and the weakness of New Zealand rugby league but shows that common law jurisdictions are hostile to restrictions on free movement.
The issue of whether UEFA's "home grown" rule will survive legal challenge is interesting but ultimately misses the point. Even if the rule is legal, all that it is likely to do is to increase immigration to rich countries of ambitious parents from Africa, Asia etc. If their young children make it here, there will be no need for work permits, and they will meet every quota that UEFA could conceivably devise.
If governing bodies are powerless in the face of globalisation, what should they do? There are answers to this conundrum. A good starting point is to recognise that free movement is not necessarily an evil: it has actually helped weaker countries such as Turkey and Greece at a national level. The old adage that there are no easy games in Europe now applies to these countries and not just to the clubs. At a more practical level UEFA could allow consolidation between weaker national leagues. This of course disempowers the officials from the smaller countries and is therefore unpopular but it can lead to less player movement through the harnessing of market forces rather than vainly opposing them.
As long as governing bodies continue to set their face against legal solutions such as the abandoned Atlantic league, they cannot expect much sympathy from the legislators. For if their real underlying complaint is that globalisation is affecting their traditional and preferred way of going about their business (in this case by means of a symmetrical sporting pyramid) then they are no different from rest of us and therefore not a special case at all. Stephen Hornsby
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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