Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 14 July 2016, the Belgian competition authority refused to grant provisional measures to the White Star Woluwe Football Club (“The White Star”), which would have allowed it to compete in the Belgian top football division. The club was refused a licence to compete in the above mentioned competition first by the Licences Commission of the national football federation (“Union Royale Belge des Sociétés de Foootball Association” or “URBSFA”) and then by the Belgian court of arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The White Star lodged a complaint to the national competition authority (“NCA”) and requested provisional measures. The Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to accept the reviewability of an arbitral award’s conformity with EU competition law (articles 101 and 102 TFEU). 

1. Licencing mechanism in football and EU competition law

In April 2016, the White Star won the 2015-2016 Belgian’s football second division championship (until then known as the “Proximus League”, but as of the 2016-2017 season renamed “Division 1B” or “D1 B”) and, as such, was, on sporting grounds, expected to accede to the top division (“Division 1A” or “D1 A”, but previously called “Jupiler ProLeague”).

However, in order to be allowed to compete in the D1 A championship (as well as for the D1 B), all professional football clubs have to obtain a licence under the URBSFA’s regulation (“federal regulation”). This licence is granted if the club complies with of the following criteria:

• Article 406 provides for the so-called ‘continuity obligation’ which, in a nutshell, aims at ensuring the financial stability of the club for the entire season to come.

• Article 407 draws up a list of general conditions by which all professional clubs have to comply with.

• Articles 408 and 410 provide for specific conditions for either D1 A and D1 B clubs.

On 12 April 2016, the URBSFA Licences Commission (“Commission des Licences”) refused to grant the D1 A or the D1 B licences to the White Star to the effect that the club did not comply with the general conditions provided in article 407. According to the Licenses Commission, the club suffers from chronical financial problems (including unpaid debts) and it had no guarantees of having access to its stadium for the upcoming season as no agreement had been reached at the time with the municipality. The White Star appealed the decision to the CBAS, which rendered its arbitral award on 6 May (award published on 13 May). The arbitral tribunal annulled the first decision of the Licences Commission, insofar as at the time of the hearing the White Star provided further evidence that it complied with the general conditions. However, the CBAS finally decided not to grant the licence, because the club’s financial stability was not ensured and, as a consequence, it did not comply with the ‘continuity obligation’ provided in article 406. The arbitral tribunal highlights the club’s chaotic financial situation in its award[1] and concluded that the club could not be granted either a D1 A or D1 B licences. Consequently, the club should be relegated to the third division and be subject to amateur status.

The White Star sought provisional measures before the NCA in order to be granted a professional licence and participate in the D1 A 2016-2017 championship. To grant an interim measure, the NCA has to make a prima facie assessment of the alleged infraction which, in this case, relates to the licencing system. The question is whether a refusal to grant a licence to a football club, which would allow it to participate in the first division infringes competition law. Without prejudice to the final decision, the NCA recalled that the licence system at stake had already been assessed and found compatible with EU competition law provisions in previous decisions.[2] Furthermore, the NCA indirectly assessed[3] the modification of the system that was decided in 2015 by the Belgian federation, which provides for stronger control over financial conditions and continuity obligations. It is widely acknowledged that a licencing system has a restrictive effect because it limits access to football competitions. Without said licence, a club cannot enter the relevant market. However, those effects were found to be inherent to the organisation of sport competitions (Meca Medina, C-519/04, 18/07/2006) and proportionate to its objective, i.e. to make sure that all clubs are able to sustain their participation in the competition, as a financial default of one club during the season would threaten the position of the competition and of the others clubs. Subsequently, the Belgian competition authority decided that it was not established prima facie that there was a breach of competition law provisions either with regard to the ‘continuity obligation’ or its application. 

The surprising aspect of the decision is that the NCA envisaged an alternative and less restrictive measure by integrating the White Star into the second division without it being requested by the club in its complaint. Both D1 A and D1 B licences were refused because after the 2015 modification of the regulation, the criteria for both divisions converged in order to professionalize the second division. This means that if the D1 A licence is refused, the probability is relatively high that the other licence (D1 B) will be refused as well and that the club will be relegated to the third division. The NCA concluded that this arrangement was inherent to the modification of the regulation and that it was not, prima facie, a disproportionate restriction. The decision also stated that the balance between the White Star’s interests and those of other clubs would be compromised if no breach is found in the final decision.[4] 

2. Sports arbitral awards and EU competition law, an uneasy relationship

The most interesting part of the decision is on the interaction between EU competition law and sports arbitration. The Belgian football federation’s regulation provides for the exclusive competence of the CBAS to appeal the Licences Commission’s decision (article 421). The arbitration tribunal then has the duty to conduct a further factual and legal examination of the case. The award is still amenable to an action for annulment in front of the First Instance Tribunal (“Tribunal de Première Instance”). The possible grounds are listed exhaustively in article 1717§2 of the Belgian Judicial Code (“Code Judiciaire Belge”). This procedure is not unknown in sports law and is rather similar to the system in force at the Court of Arbitration for Sport (“CAS”) in appeal procedures following a sports federation’s decision where the regulation of the body concerned expressly provides for it. Judicial review of the CAS award is also available before the Swiss Federal Tribunal on a very limited number of grounds. 

Challenges to arbitral awards concerning sports matters on EU competition law grounds is not a novelty either. In the past, the European Commission (“Commission”) and the Court of Justice of the European Union (“CJEU”) received complaints on EU competition law grounds involving arbitral awards rendered by the CAS. All these cases have one thing in common: both the Commission and the CJEU decisions did not refer directly to the arbitral award and went on instead to examine whether the rules of the sport governing body (“SGB”) on which the awards were grounded were compatible with EU competition law provisions. Already with the Meca Medina case the CJEU limited its assessment to FINA (International Swimming Federation) anti-doping regulations. The same approach was used by the Commission in the ENIC case referring to the UEFA rule on multiple ownership of football clubs (COMP/37 806 ENIC Plc/UEFA, 25/06/2002) and the Cañas case regarding the ATP anti-doping code (COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009). In those three cases, the SGB’s rules were found compatible with EU competition law provisions as long as they are proportionate to their objective, which was deemed the case in such instances. However, if the rule at stake had been found in breach of articles 101 or 102 TFEU, the award would be contrary to EU competition law as well.

The Court and the Commission are reluctant to give way to challenges against arbitral awards based on competition law provisions.[5] In Meca Medina, the Commission and the Court both criticized the applicants’ choice to submit a complaint based on EU competition law while they did not appeal the CAS award in front of the Swiss Federal Tribunal.[6] In Cañas, the Commission endorsed CAS as a legitimate independent institution whose role as a sport arbitral institution is comparable to that of national courts.[7] It is particularly striking that the Commission is reluctant to be seen as an alternative appeal mechanism against CAS awards[8], and here probably lies the explanation as to why it restricts its assessment to the SGB’s rule and leaves the arbitral award aside.

3. The White Star decision, a new twist in the debate

The Belgian competition authority faces the same type of challenge in the White Star case in which the arbitral award was an appeal of the Belgian football federation’s decision based on the federal regulation providing for a licence mechanism and, as a consequence, restricting the access for the club to the market of top division football matches. Had the NCA followed the Commission and the CJEU practice, it would have ignored the award and directly assessed the SGB’s rule under EU competition law. 

Yet, the Belgian competition authority did not leave the award aside. To apply EU competition law provisions to that case, the NCA did not have any difficulty in considering that the football federation is an association of undertakings (nothing new and revolutionary here), and quickly concluded that the CBAS is neither an undertaking nor an association of undertakings following the Commission assessment in Cañas[9]. However, and the innovative aspect of the decision lies here, it considers that the interpretation of the URBSFA regulation enacted by the football federation, an association of undertakings and as such bound by competition law provisions, may be a restrictive practice even though the CBAS is not in itself subject to competition law.[10] The licensing requirements provided by the federal regulation are subject to competition law scrutiny because the URBSFA is an association of undertakings. The arbitral award annulled and replaced the URBSFA Licences Commission’s decision[11], as the CBAS has unlimited jurisdiction to review the case on appeal. As a consequence, the only decision still existing is the arbitral award. Therefore, it seems that the Belgian competition authority considers that the effect of the award is to implement the URBSFA’s regulation which means that the arbitral award is ‘detached’ from the arbitral tribunal and deemed attributable to the football association and, as a consequence, may potentially constitute a restrictive practice[12]. The new and important aspect of the decision being that the NCA will then review both the URBSFA regulations and its interpretation by the CBAS in its arbitral award, meaning that the Belgian competition authority will also assess the arbitral award. 

An explanation for this innovative argumentation is probably the fact that this case is a request for interim measures related to an individual decision, i.e. the arbitral award. The Belgian NCA, contrary to the established practice of EU institutions in similar cases, did not deal with it as an indirect challenge to the award via the URBSFA regulation. The NCA justifies its reasoning by saying that it must protect the effectiveness (“effet utile”) of later decisions on the merits of the case.[13] It therefore recalls that its role is to enforce competition law provisions which are a matter of public policy based on the CJEU’s Eco Swiss (C-126/97) decision. This case concerns an action for annulment in commercial arbitration, but its findings can be extended to sports arbitration. Following the Eco Swiss jurisprudence, the responsibility for reviewing compliance with European public policy rules lies with the national courts of the Member States and not with the arbitrators. This means that it is for the judges to decide whether an arbitral award is in conformity with EU competition law and set it aside if it breaches these provisions. 

The Belgian competition authority extended that jurisprudence to its own assessment of the compatibility of the URBSFA regulation with EU competition law.[14] Hence, if it had considered the regulation in breach of EU competition law, the award itself would have been found contrary to the same provisions and set aside. This means that, in the end, the NCA would have the ability to set aside the arbitral award without the interference of a (national) court in the meaning of the Eco Swiss judgment. Indeed, if the SGB’s rules are contrary to articles 101 or 102 TFEU, then the award is too.[15] The NCA decision will, consequently, lead to the annulment of the arbitral decision which, in turn, will not be enforced. This is also important in the light of the Belgian competition authority decision that is, while attributing the award to the SGB, also allowing a control on the interpretation of the licensing rules by the CBAS.

Nonetheless, the Belgian competition agrees with the CJEU and the Commission regarding the competition law arguments raised against the arbitral procedure. The White Star challenged the ‘forced’ appeal procedure in front of the CBAS provided by the federal regulation as well as the independence and impartiality of the CBAS on competition law grounds. The CBAS invoked the findings in the recent Pechstein case (Bundesgerichtshof, KZR 6/15, 07/06/2016), very similar to the one at stake, to argue that the procedural characteristics in sports arbitration had already been found compatible with EU competition law. At the EU level, the Commission already considered that a forced arbitration clause would only constitute a breach of EU competition law if it supports a restrictive practice, but not on its own (see Cañas, p. 41). The Belgian competition authority, in turn, considers that there is not a prima facie competition law breach because of the possibility to appeal the arbitral award to the Tribunal of First Instance, a national court.[16] The argumentation on this point is limited. However, one should remember that this is an interim measure decision and the NCA is only checking prima facie restrictions. 

Finally, the Belgian competition authority did not quite reply to the CBAS argument stating that preliminary measures would endanger the uniformity and organisation of sports arbitration if granted in that case. It recalled that in a previous case of interim relief regarding a CBAS sentence, a judge declared of its own motion that it had no jurisdiction to hear the case (Première instance du Hainaut, Division de Mons, 09/05/2016), but the Tribunal of First Instance did have jurisdiction by law. The question is whether the NCA created a third alternative of recourses against arbitral awards in addition to the one in front of the First Instance Tribunal. The NCA made sure to state that it is not an appeal body[17] and, as such, its only preoccupation is to scrutinize that competition law provisions are applied. Therefore, the NCA did not create an alternative way of appeal, but the attribution of an arbitral award to a sport federation is a notable move. The CBAS argues in its conclusions[18] that the judge in the proceeding detailed in article 1717 of the Belgian Code of Justice is as competent as the NCA to hear EU competition law arguments in the case of an appeal (where the Eco Swiss judgement applies). 

The CBAS argument is not entirely convincing. If this decision appears to be as important, it is because the NCA will, in most cases, have a greater capacity than a judge to decide if there is a competition law breach. On another hand, a question is raised about the extent of the control of the judge over public policy arguments in the case of a legal action against the enforcement of an arbitral award. For example, the French Cour de Cassation requires a control limited to a manifest error of assessment (Cour de Cassation, Chambre civile 1, of 13 October 1981, 80-11.098, Publié au bulletin). Indeed, in the Belgian case the NCA will exercise a more stringent control than just the identification of a flagrant infringement of competition law provisions. To add to the debate, in a recent case[19] Advocate General Whatelet defended a stronger control of the judge over the compatibility of arbitral awards with EU competition law.[20] The CJEU did not endorse this position but did not reject it either. The question whether arbitral awards and the rules they are based on will become subject to greater scrutiny under articles 101 and 102 TFEU is still pending. 

Consequently, the Belgian competition authority extended the EU competition law control over sports arbitration to cover the specific interpretation of the SGB’s regulations by an arbitral tribunal. As a consequence, and if this reasoning is confirmed, lawyers might be able to challenge an arbitral award directly with the national competition authorities if it appears to interpret the SGB’s regulations in contradiction with EU competition law.

It should be noted that this procedure is only about provisional measures, but the legal reasoning used by the Belgian competition authority shakes the already shaky grounds of sports arbitration. After the Pechstein and SV Wihelmshaven cases in German courts, sports arbitration is anew put to the test based on EU law considerations. The Belgium decision went unnoticed because it is in French and the regulations at stake were not deemed contrary to competition law. However, if more national competition authorities follow a similar reasoning, more challenges of arbitral awards in sport matters will necessarily arise. The question that remains open is whether the Commission itself will welcome such a change or not.

[1] « Force est de constater qu’il s’agit là d’un ensemble de faits précis, graves et concordants qui remettent fondamentalement en cause l’affirmation selon laquelle la continuité du club peut être assurée pour la saison 2016-2017 », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p.23.

[2] See for example decision 2004-E/A-25, 04/03/2004.

[3] The NCA organises an informal procedure with the ProLeague, the Belgian professional football teams’ association, to monitor the sale of the media rights from 2005. In this framework the NCA had to examine the modification of the football federation’s regulation in 2015. See, for further explanation, Autorité Belge de la Concurrence, 14/07/2016 points 22-62, p. 65-69.

[4] « … la balance des intérêts de la Requérante et des autres clubs risque d’être compromise au cas où une infraction ne serait pas établie », Autorité Belge de la Concurrence, 14/07/2016 point 81, p. 177.

[5] For an in-depth analysis, see Antoine Duval, “The Court of arbitration for sport and EU Law: Chronicle of Encounter”, (2015) 22, Maastrich Journal of European and Comparative Law, 2, p. 224-255.

[6] Supra, p. 251.

[7] Supra, p. 252.

[8] Supra, p. 253.

[9] « (…) Le rôle du TAS est comparable à celui d’un tribunal. Il rend des décisions arbitrales qui ont généralement la même force que des jugements de juridictions de droit commun. L’exercice de ces activités de jugement, ainsi que l’administration et le financement de ces activités par le CIAS, ne peuvent être considérés comme constituant une activité économique (…) Par conséquent, il semble difficile de qualifier le CIAS (ou le TAS) (…) d’entreprises ou d’associations d’entreprises au sens de l’article 81 et/ou 82 du traité CE. », COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009, point 23.

[10] « […] Le Collège ne considère dès lors pas manifestement déraisonnable de penser que l’Autorité puisse constater qu’une interprétation d’un règlement qui entre dans le champ d’application des règles de concurrence, constitue une pratique restrictive même sans qu’elle ne soit sanctionnable dans le chef de l’instance qui l’a interprété […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[11] « Met à néant la décision prononcée par la Commission des Licences de l’ASBL URBSFA… », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p. 32.

[12] See supra 10 and « (…) [Le Collège] peut dès lors apprécier dans le cadre de cette procédure en matière de mesures provisoires, prima facie, la conformité avec le droit de la concurrence du Règlement fédéral et de son application et effets dans la mesure où le refus de licence continue à produire ses effets, même si la décision de la commission de l’URBSFA est formellement remplacée par la sentence arbitrale de la CBAS. », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[13] « […] de protéger dans le cadre de cette procédure en matière de mesures provisoires l’effet utile de la décision à prendre dans le cadre de la procédure de fond. […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[14] « Le Collège fait remarquer qu’une autorité de concurrence est chargée de la mise en œuvre de règles d’ordre public. […] », Autorité Belge de la Concurrence, 14/07/2016 point 52, p. 172.

[15] See Duval, p. 251.

[16] Autorité Belge de la Concurrence, 14/07/2016 point 62, p. 174.

[17] « Elle n’est pas une instance d’appel pour entendre des recours contre une décision attaquée », Supra, point 52, p. 172.

[18] Autorité Belge de la Concurrence, 14/07/2016 point 119, p. 146.

[19] Opinion of Advocate General Wathelet, 17/03/2016, Case C‑567/14, Genentech Inc.v Hoechst GmbH, formerly Hoechst AG, Sanofi-Aventis Deutschland GmbH and CJEU, 07/07/2016.

[20] Supra, point 71 “For these reasons, the review by a court of a Member State of whether international arbitral awards are contrary to European public policy rules cannot be conditioned by whether or not this question was raised or debated during the arbitration proceedings, nor can it be limited by the prohibition under national law preventing the substance of the award in issue from being reconsidered.”

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

 On March 05, the T.M.C. Asser Institute hosted ‘Mega-sporting events and human rights: What role can EU sports diplomacy play?’ a Multiplier Sporting Event organized in the framework of a European research project on ‘Promoting a Strategic Approach to EU Sports Diplomacy’. This project funded by the European Commission through its Erasmus+ program aims to help the EU adopt a strategic approach to sports diplomacy and to provide evidence of instances where sport can help amplify EU diplomatic messages and forge better relations with third countries. In particular, Antoine Duval from the Asser Institute is focusing on the role of EU sports diplomacy to strengthen human rights in the context of mega sporting events (MSE) both in Europe and abroad. To this end, he organized the two panels of the day focusing, on the one hand, on the ability of sport governing bodies (SGB) to leverage their diplomatic power to promote human rights, particularly in the context of MSEs and, on the other, on the EU’s role and capacity to strengthened human rights around MSEs. The following report summarizes the main points raised during the discussions.

2.     Context to the Event

Before diving into the panels, the scene was set by a few speakers who described the background and some of the main issues encircling the event. First, Antoine Duval (Asser Institute) kicked the day off by describing the general goal of the project and his role within it. Specifically, Duval strives to explore key questions such as: to what extent are SGB’s diplomatic actors and do they have human rights responsibilities? Also, what is the role of the EU’s sports diplomacy with regard to human rights at MSEs? Can it and should it get involved and if so, what could it do to be most effective?

Having laid the foundation of the event, Richard Parrish (Edge Hill University) described the background to the project ‘Promoting a Strategic Approach to EU Sports Diplomacy’. Parrish explained that while many countries have a clear sports diplomacy strategy, the EU has been rather ‘late’ to the party. He explained that there may be room for a soft power approach to EU sports diplomacy. The project aims to continue the political momentum gained from a 2016 report on EU sports diplomacy and has now held several events across Europe that analyze this subject from different lenses. Parrish concluded by explaining that the EU has started to be more conscious of this issue and has, for example, now included sport in its dialogue with China for the first time.

Simon Rofe (SOAS) then brought some introductory remarks to help frame the discussions that would follow. Rofe started by pointing out how human rights and diplomacy have not exactly gone hand in hand and that many diplomatic instruments are rather silent on human rights, which often has been intentional. Furthermore, there are also issues when trying to identify which and what form of human rights should be promoted, although the UN has played a leading role in this regard. There are also questions regarding what capacity for change there is within SGBs. Rofe also gave the example of how human rights have already been disseminated through sport, such as during apartheid in South Africa. Nevertheless, as SGBs gain greater roles in non-sport matters, their responsibility to respect and further human rights is significantly increased.

3.     The Panels

a.     Panel 1: Leveraging the Diplomatic Power of the Sports Governing Bodies for Human Rights

Now that the stage was set, the first panel took the floor with Antoine Duval acting as chair. Claire Jenkin (University of Hertfordshire) was the first to speak and examined the concept of legacies, especially in terms of children and young people. In other words, how can SGBs help leave positive human rights legacies in the MSEs host nations? Jenkin took the example of the International Inspiration Programme from the London 2012 Olympics, which was the first ever international legacy initiative linked to the Olympics and ran from 2007-2014. Its goal was to reach out to young people and bring sport to the youth beyond the context of the Games. In the end, it helped influence 55 national policies, strategies and legislative amendments. Jenkin highlighted, once more, how defining which human rights values to promote can be challenging. There are also many in a position that can promote human rights through sport but are simply not aware of their position as a ‘sport diplomat’. Hence, creating awareness, defining the appropriate human rights perspective and ensuring that young voices are heard in this process are essential to developing the SGBs’ human rights diplomacies.

Next up was Florian Kirschner (World Players Association/UNI Global Union) who looked at how SGBs have exercised their human rights diplomatic role. Kirschner illustrated how sport has a fundamental role in our society and is naturally connected to several human rights. The sports movement also clings to principles such as fairness, solidarity, equality and inclusion. However, Kirschner argued, SGBs have not always upheld these principles and pointed to several examples, such as widespread corruption, the award of MSEs to countries with questionable human rights records, suppression of free speech and violations of worker’s rights. There have also been instances of ‘sportwashing’, where states use sport events to try to give the impression that they are compliant with human rights, while coming short of their obligations in practice. The World Players Association, NGOs and other trade unions have come together to push SGBs, under the UN framework, to take greater account of human rights. Kirschner closed with the case of Hakeem al-Araibi and highlighted how many actors, including FIFA, were able to use their influence to push for his release.

Lucy Amis (Unicef UK/Institute for Human Rights and Business) then explained to the participants the importance of transferring the policies SGBs have adopted in relation to human rights into actual practice. This means developing strategies that enforce the values SGBs claim to uphold. There are numerous cases where sport has not lived up to these values: including cases where migrant workers are exploited to build MSE sport facilities, cases of child labor, and various instances where fans chant homophobic and racist slurs. Amis highlighted that SGBs must be especially diligent in cases affecting children because they face the highest risk of exploitation. On the other hand, sports diplomacy has helped initiate positive changes in some countries. In Rwanda, sport was used to help rebuild its society amidst significant adversities. There have also been encouraging developments in Qatar. Despite many calls to cancel the World Cup, FIFA’s persistence to hold the World Cup there has helped bring an end to the kafala system. All in all, challenges do remain. For instance, many national SGBs are limited to a very small and amateur staff, which creates greater challenges in creating, implementing and enforcing human rights strategies.

Finally, Guido Battaglia (Centre for Sport and Human Rights) closed the panel and began by giving an overview of the Centre for Sport and Human Rights’ goals and work. Battaglia described how the Centre’s main priority is helping those who are most affected by sports - the athletes, workers, and fans, among others - based on international human rights standards. The Centre promotes and fosters human rights in sport by bringing a wide variety of actors together, including SGBs, local organizing committees, governments, sponsors, broadcasters, international organizations, civil society and trade unions. The aim is to help these groups share best practices, increase their capacities and improve accountability on human rights issues. Battaglia then shared examples of how the Centre has been active in the field. One of these cases concerned Semyon Simonov, a human rights activist in Russia, who had been arrested while interviewing workers building World Cup stadiums in Volgograd. During this time, the Centre held a conference during which Human Rights Watch directly requested FIFA to monitor the situation. This eventually prompted FIFA to attend one of Simonov’s court hearings, acting as a sort of diplomatic pressure and signaling the sports world was watching. Battaglia concluded that pushing human rights through sports diplomacy, while still in its infancy, is gaining momentum and that there is enormous potential to help unite society through sport.

b.     Panel 2: A Human Rights Dimension for the EU’s Sports Diplomacy?

The second panel, chaired by Carmen Perez (Universidad Carlos III de Madrid), then directly confronted the central question of how the EU could develop a human rights-based sports diplomacy. Arnout Geeraert (Utrecht University) launched the panel with a purposively provocative statement that EU sports diplomacy is ridiculous and that fundamentally there should be a deepening rather than a widening of its action in this matter. Since the EU has limited resources to focus on its sports diplomacy, it should work to strengthen its current efforts. Generally, the EU promotes liberal norms such as liberty, anti-discrimination, democracy, human rights and good governance in its actions. In the sports sector, the EU has had the greatest success in steering SGBs through negative integration and soft power measures, and SGB usually comply because they seek to be on good terms with the EU. In the end, Geeraert contends that the EU’s sport diplomacy should be to place more pressure on SGBs through a variety of existing channels, including coordinating EU member state positions in international organizations like the Council of Europe, and forming alliances with non-member states. The EU could then push human rights through these various relationships, which would indirectly compel SGBs to respect human rights.

Agata Dziarnowska (European Commission) took a different view from Geeraert and argued that a widening of the EU’s sport diplomacy should also be a part of the EU’s strategy in this field. Fundamentally, Dziarnowska argued, soft power is the EU’s most effective tool, and when you add the fact that Article 165 TFEU gives the EU the ability to cooperate with third countries on issues related to sport, there is a clear path for the EU to act. When it does so, it should be promoting EU values, including those related to human rights. In this context, the EU has already begun to take action within this strategic framework. For example, promoting the aforementioned values will be part of the new Erasmus programme. Additionally, the Council relatively recently adopted Conclusions related to sports events to ‘enhance integrity, transparency and good governance in major sport events’. These Conclusions specifically addressed business and human rights principles and highlight the importance of the selection process. Dziarnowska closed by underlining that EU action will greatly rely on strong political support, particularly from the Member States.

Alexandre Mestre (Sport and Citizenship) built on Dziarnowska’s contention that there is indeed an avenue for the EU to intervene on human rights. Given the wording of Article 165 TFEU, there are a multitude of areas for EU action. Mestre explained that crucial issues such as fighting against human trafficking, doping, child labor, sexual abuse of athletes, excessive commercial/economic exploitation of athletes are matter that deserve the EU’s attention. Furthermore, recent cases, such as Caster Semenya’s dispute with World Athletics, has shown how the SGBs’ eligibility rules could be another area where the EU could add value, given its previous experience with eligibility. Moreover, the EU has tremendous experience dealing with cases of discrimination and could use this expertise as a basis to promote human rights issues. Like Geeraert, Mestre also sees the EU increasing its cooperation with other entities, such as with the Council of Europe, civil society and third countries hosting MSEs. Mestre, nevertheless, also envisages direct cooperation with SGBs as part of the EU’s sports diplomacy strategy.

Lastly, Christian Salm (European Parliamentary Research Service) gave a historical perspective on the EU’s sports diplomacy, emphasizing the European Parliament’s role. Salm described how the 1970s were truly pivotal in this story, especially since it was the ‘decade of breakthrough’ for human rights. There were two events that placed human rights as a top priority: the World Cup in Argentina in 1978 and the 1980 Moscow Olympics. Concerning the first, the European Parliament’s Political Affairs Committee decided to have a hearing concerning human rights to counter political propaganda from Argentina’s right-wing military regime. While the hearing was blocked by a vote, the socialist group decided to hold its own debate, which created a significant media interest. The hearing generated calls for the release of the opposition leader in Argentina and led to a wider debate concerning sport events, specifically with regards to boycotts. Salm then described how leading up to the 1980 Moscow Olympics the international situation following the Soviet invasion of Afghanistan and the wave of oppression on human rights activists stimulated majority support amongst the European Parliament to boycott the Olympics. While the European Parliament was in many ways limited, it understood its role as a guardian of human rights and was able to generate significant attention to these issues. More recently, in February 2014 the European Parliament also held a public hearing on migrant workers building stadiums. With this perspective, Salm explained, the European Parliament can definitely play a part in developing a human rights dimension to EU sports diplomacy.

4.     Conclusion

After each of the panels, participants were able to ask questions which stimulated many fruitful discussions, such as the importance of including human rights considerations in MSE bidding processes and defining an overall EU diplomatic strategy that would effectively use the EU’s leverage on these questions. On the latter issue, to prevent a fragmented diplomatic approach, the second panel concluded that coordination between all EU actors and informal policy making – such as raising awareness through public hearings and conferences – can help create a cohesive and effective EU sports diplomacy scheme. In any event, from all the discussions, it is evident that human rights will need to play a greater role in any EU sports diplomacy strategy given the inherent human rights concerns that MSEs carry.

On behalf of the organizers, we would like to thank all the speakers and participants for ensuring a remarkably productive and rich event in difficult times. We look forward to seeing you at the Institute again soon!