Sport

Introduction

Sport in Europe is often a cross-border activity, with the transfer of athletes, the organising of competitions and sports broadcasting frequently involving multiple countries. On several occasions, the Court has clarified how EU law applies to various aspects of sports. Some of the key questions include:

• What are the rights of athletes as workers in terms of their freedom of movement?
• Are the powers of sporting federations – in particular, their power to approve the organisation of all international competitions – contrary to EU competition law?
• Can exclusive broadcasting rights be limited to ensure that the public can view major sporting events on free television?

Free movement of athletes

Perhaps one of the most famous court cases of all time is the Bosman case. The name “Bosman” has entered general sporting vocabulary, creating a whole new category of transfer between football clubs. Behind this case and the principles that it established was a real human story.

Jean-Marc Bosman was a footballer for the Belgian club RFC Liège. When his contract expired in 1990, he wanted to change teams and move to the French club Dunkerque. However, the transfer was blocked because Dunkerque did not want to pay the fee demanded by Liège. Liège suspended Mr Bosman and he was also blacklisted by all the European clubs that might have hired him, leaving him not only unemployed, but unemployable.

A Belgian court referred this case to the Court of Justice, which ruled that the transfer fee rules restricted the free movement of players who wished to play in another Member State by preventing or deterring them from leaving their former clubs even after their contracts had expired. The Court also said that football leagues could not impose limits on the number of foreign EU players that clubs fielded in matches. The Bosman ruling introduced the era of free transfers, allowing a greater flow of players around the EU (C-415/93 Bosman).

Bosman’s impact went beyond football, influencing other sports such as basketball, handball and cricket. In later cases the Court developed the principle further, finding that it also applied to some non-EU athletes. If the athlete was from a country that had an agreement with the EU that included rules on free movement of people, they were covered by the same principles. These cases included Kolpak (C-438/00 Deutscher Handballbund) involving a Slovak handball player before Slovakia was a Member State, and Simutenkov, a Russian footballer playing in Spain (C-265/03 Simutenkov).

In 2008, a French court asked the Court of Justice for guidance on a “joueur espoir” contract. Olivier Bernard had signed such a contract with the football club Olympique Lyonnais. The contract committed him to train with the club and to sign his first professional contract with them if the club offered. However, Mr Bernard instead signed with Newcastle United after his training period, and Olympique Lyonnais sought compensation. The Court agreed that these contracts restricted the free movement of players. However, football clubs could lawfully claim compensation for training young players who then signed their first professional contract with a club in another Member State, in a way which is related to the actual costs of the training  (C-325/08 Olympique Lyonnais).

In 2022, a Belgian court referred a case to the Court of Justice concerning a former professional footballer living in France who had challenged some of FIFA’s rules on the transfer of players. He claimed that they prevented him from being employed by a Belgian football club. The rules said that if a player ended their contract early and without “just cause”, both the player and their new club had to compensate the former club. The new club could also face sanctions and other adverse consequences, such as a temporary transfer ban and delays in issuing International Transfer Certificates. The Court of Justice decided that FIFA’s rules were contrary to EU law, preventing the free movement of professional footballers who wanted to improve their craft by going to work in a new club (C-650/22 FIFA).

Sports federations and competition law

In two cases decided at the end of 2023, the Court of Justice examined the interaction between competition law and the regulation of sport. Competition law forbids an abuse of a dominant position on a market. Sport, however, is often governed by a single organisation that sets rules and organises the sport.

The first case involved the International Skating Union (ISU), which approves all international skating competitions. ISU has the power to ban athletes from all competitions if they take part in unapproved events (C-124/21 P International Skating Union v Commission).

The second case arose out of FIFA and UEFA’s reaction to the European Superleague, where they threatened to sanction any clubs or players that took part (C-333/21 European Superleague Company).

In both cases, the Court held that these kinds of rules are unlawful. The powers of FIFA, UEFA and the ISU were not subject to any kind of framework making sure that they were transparent, objective, non-discriminatory and proportionate. As a result, they hindered free competition in the EU market. The Court also said that the rules are harmful to the players and athletes, by preventing them from taking part in new and innovative competitions. They were also harmful to the media and spectators, depriving them of the opportunity to watch these competitions.

Also in 2021, a Belgian court asked the Court of Justice to weigh in on a case involving a footballer and a Belgian football club who were challenging rules on “home-grown players”. This rule aims to encourage the development of local talent. The Court found that these rules could be illegal under EU competition law, since they limit clubs’ ability to compete with each other by recruiting talented players regardless of where they were “home-trained”. It also held that the rules might indirectly discriminate against players coming from other Member States. However, the Court left it to the Belgian court to determine if these rules were justified by the objective of encouraging, at local level, the recruitment and training of young professional football players (C-680/21 Royal Antwerp Football Club).

Viewing sport

In principle the rights holders of sporting events are free to sell their broadcasting rights to whoever they wish. However, under EU law, Member States can insist that certain events of “major importance for society” must be broadcast on free-to-air channels. This limits the amount of money that rights holders can receive for the broadcast rights. The UK and Belgium had listed all the football World Cup games and the UK also all the EURO matches as events of “major importance”. FIFA and UEFA argued that many of the games were not of major importance for those countries. For example, the group games not involving teams from the UK or Belgium should not be considered important. The General Court agreed with the UK and Belgium. It recognised that Member States could classify all matches in these tournaments as major societal events. The Court noted that even “non-prime” matches can influence the progression of national teams and the overall competition. While showing these matches on free television would limit FIFA and UEFA’s exclusive broadcasting rights, the Court found that these restrictions could be justified by the need to protect the public’s right to information and to ensure open access to events of societal importance (T-385/07, T-55/08, T-68/08, FIFA and UEFA v Commission).

In 2008, a UK court asked the Court of Justice about the way English Premier League broadcasting rights were sold. Each broadcaster was only allowed to show matches in a specific area. This meant that television viewers could only watch Premier League matches shown by broadcasters of the Member State where they lived. Pubs in the UK bought decoder cards from Greece that allowed them to access and screen Premier League matches. The Court said that any licensing systems granting broadcasters exclusive rights within a Member State, and prohibiting viewers from watching the broadcasts with a decoder card in other Member States, goes against EU law. However, it held that screening matches in public venues, like pubs, required authorisation if the broadcast included elements protected by copyright, such as the opening video sequence or music (C-403/08 and C-429/08 Football Association Premier League and Others, Murphy).

In a further case, the Court ruled on the use of short clips of sporting events in news programmes. Under EU rules, broadcasters must be allowed to use clips in short news reports on events of public interest, even when the events are covered by exclusive broadcasting rights. Whilst the news organisation can be asked to pay, this must be limited to the technical costs for accessing the signal. Sky Österreich, who held exclusive rights to some sporting events, argued that this overlooked broader costs involving licensing and producing. However, the Court confirmed that compensation for granting access to broadcasts could be limited to technical costs directly linked to providing the signal. This limitation protects citizens’ fundamental right to information and ensures public access to key information about major events like football matches, despite exclusivity agreements (C-283/11 Sky Österreich).

Conclusion

Through these judgments, the Court of Justice and the General Court have ensured that everyone can benefit from their right to free movement and the protection afforded by EU competition rules whilst recognising the special place of sport within our society.