Yesterday, the European Commission stunned the
European Sports Law world when it announced unexpectedly that it had signed a “partnership agreement” with UEFA named (creatively): ‘The Arrangement
for Cooperation between the European Commission and the Union of European
Football Associations (UEFA)’. The press release indicates that this agreement is to “commit
the two institutions to working together regularly in a tangible and
constructive way on matters of shared interest”. The agreement was negotiated (as
far as we know) secretly with UEFA. Despite recent meetings between EU Commissioner for sport Vassiliou
and UEFA President Platini, the eventuality of such an outcome was never evoked.
It is very unlikely that third-interested-parties (FIFPro, ECA, Supporters
Direct etc.) were consulted in the process of drafting this Arrangement. This
surprising move by an outgoing Commission will be analysed in a three-ponged
approach. First, we will discuss the substance of the Arrangement (I).
Thereafter, we will consider its potential legal value under EU law (II).
Finally, and maybe more importantly, we will confront the political relevance
of the agreement (III).
Source: http://ec.europa.eu/avservices/photo/photoDetails.cfm?sitelang=en&ref=026448#13
The substance of the “Arrangement” between UEFA
and the European Commission
What’s in the Arrangement? In short, a lot of
random considerations, very little concrete commitments, and an administrative
structure for future dialogue.
The “basis” for the cooperation between UEFA
and the European Commission is a mixed bag of shared concerns and common views.
Both institutions are keen on strengthening their dialogue “in the interests of
the long-term development and societal role of sport in general and football in
particular” (Article 2.1. of the Arrangement), especially in the light of the societal
value of sport (Article 2.2.) and the many challenges and risks it is facing
(Article 2.3.). Therefore, they “endeavour to strengthen policies designed to
encourage the local training and education of athletes” (Article 2.4.). The
parties share the view that “appropriate solutions are to be found in order to
ensure that athletes are available to play for their national teams” (Article
2.5.), but also that “redistribution mechanisms concerning, for example,
audiovisual media revenues and training compensation fees should be
recommended” (Article 2.6.). Furthermore, they acknowledge that “[F]inancial
stability, transparency and better governance within sport can be pursued
through responsible self-regulation”. For example, “measures to encourage
greater rationality and discipline in club finances with a focus on the
long-term as opposed to the short-term, such as Financial Fair Play initiative,
contribute to the sustainable development and healthy growth of sport in
Europe” (Article 2.7.).
The parties also agree that the “health and
human dignity of athletes must be protected from abusive and unethical
practices”. In this regard, “[I]t is important that […] so-called third-party
ownership of the “economic rights” of player, do not threaten the integrity of
sporting competition or undermine the relationship of trust and mutual respect
that should exist in any relationship of employment” (Article 2.8.). More
broadly, the parties recognise the need for social dialogue, protecting
fundamental rights, promoting gender equality and to fight all forms of racism,
xenophobia, homophobia and discrimination (Article 2.9.). It is recognized that
“[t]o improve good governance standards, UEFA can also play a prominent role in
seeking appropriate solutions on issues pertaining to players’ transfers and
agents at European level” (Article 2.10.). Concerning match-fixing, the parties
acknowledge that close cooperation is needed (2.11).
The Arrangement calls for an “effective
protection of intellectual property rights”, as their exploitation “represents
an important source of income for professional football” (Article 2.12.). It
also favours “the reinforcement of the Council of Europe convention on
spectator violence” (Article 2.13.). In a very important holding, arbitration
is recognised as “an important voluntary tool for settling disputes in sport
and ensuring that sporting rules are applied, interpreted and enforced in an
effective and uniform manner, while also ensuring respect of the applicable
legal norms and procedural safeguards within and outside of the EU” (Article
2.14.). Finally, “the European Commission and UEFA will collaborate in the
context of the planned European Week of Sport, using football to promote
healthy physical activity” (Article 2.15).
This collection of, more or less, random
thoughts collated in the Arrangement lead to two broad objectives: “to promote
cooperation and strengthen relations between the European Commission and UEFA
in the interests of the sustainable development of football” (Article 3.1.1.)
and “to exchange information, knowledge and good-practice on matters of common
interest” (Article 3.1.2). These objectives are to be implemented through a
“policy dialogue” between the Secretary General of UEFA and the Director
General responsible for Sport in the EC (Article 4.1, 4.2, 4.4, & 4,5). The
implementation will also involve “Regular and ad hoc meetings […] between
officials of the Sides […]” (Article 4.3.).
The Arrangement will start on the date of the
signature [14 October 2014] and is to last until 31 December 2017 (Article
5.1.). The Sides to the Arrangement are free to amend it (Article 5.2). While,
each side “can, at any time discontinue the application of this Arrangement,
but should endeavour to provide a three-month notice of such discontinuation to
the other Side” (Article 5.3.). Finally, both sides acknowledge that the
“Arrangement does not create rights or obligations under international, EU or
domestic law” (Article 5.4.).
The legal value of the “Arrangement” under EU
law
This is not a memorandum of understanding, a gentleman’s agreement between UEFA and the Commission, or a simple
political declaration; this Arrangement is formally approved by a binding
decision of the European Commission, to which it is attached. This decision could
not be based on Article 165 paragraph 4 of the TFEU (the sports legal basis),
as it does not confer to the European Commission the power to adopt such a
decision. Hence, the Commission needed to rely on its general competence
derived from Article 17 TEU.[1]
Already, this is cause for legal concern; for example one could question the legitimacy
of the circumvention of the limits set expressively in Article 165 TFEU and the
recourse to Article 17 TEU to stretch the Commission’s competences. Ultimately,
it could lead to a legal challenge against the decision, based on the European
Commission’s lack of competence to adopt it. In any way, this is unlikely to
happen, as it would require an EU Institution (the Council or the European
Parliament), or a Member State to do so.
What does the fact that the Arrangement is
enshrined in a European Commission decision mean in legal terms? As specified
in Article 288 TFEU: “A decision shall be binding in its entirety”. This is a
legally binding document, in theory reviewable by Courts and potentially
capable of generating rights and legitimate expectations for a third party (most
probably UEFA). The Commission was apparently very weary of dodging this
possibility. Therefore, it kept the wording of its commitments relatively vague
and introduced many references to the primacy of EU Competition law and the EU
acquis in the text. Moreover, article 5.4 of the Arrangement stipulates that it
“does not create rights or obligations under international, EU or domestic
law”. This makes it very difficult to envisage a possibility for UEFA to claim
that it has concrete legitimate expectations arising from this Arrangement.[2]
Consequently, in practice, this Arrangement is very much a soft legal
instrument in the guise of hard law administrative decision. Nevertheless, the
law is not always only about the law and such soft legal documents might have hard
political and legal consequences.
The hard political (and legal) reality of a
soft legal “Arrangement”
The legal theoretical debate over the nature
and function of soft law instruments has been on-going for more than 20 years
now.[3]
But, one thing seems to be more or less certain, soft legal mechanisms matter.[4]
They matter politically, as they shape the perception of public opinion and
play a role in public discourse. Sometimes they might also matter legally,
especially when legal standards based on the substantial balancing of values
(or risks) are used, as for example the proportionality principle. Therefore,
the European Commission should be very weary of using such soft instruments in
a blunt fashion.
In our view, this Arrangement between UEFA and
the European Commission is a misguided soft law instrument. Indeed, despite its
willingness not to get into an agreement creating legal rights for UEFA, the
European Commission will be haunted (politically and legally) by it for the
years to come. For example, it will be very difficult for the European
Commission to consider that UEFA’s Financial Fair Play regulations are disproportionate
in the sense of the Meca-Medina test,
after recognizing that it contributes to “the sustainable development and
healthy growth of sport in Europe”. The Commission also adds that this
recognition is “subject to compliance with competition law”. Thus, it remains in
theory possible for the DG Competition to consider FFP incompatible with EU
Competition law. However, one need not be a political wizard to understand the
difficulty to do so after having enshrined such a statement in an official decision
(UEFA is already claiming that the Commission “fully supports” the
“implementation of Financial Fair Play”). UEFA would easily point at the
obvious contradiction and the European public would rightly blame the European
Commission for its inconsistency.
Unfortunately, this Arrangement is not only
about UEFA’s FFP regulations; instead, the European Commission is signing on a
set of very controversial statements. Indeed, by qualifying sporting
Arbitration as “an important voluntary tool for settling disputes in sport” and
“ensuring respect of the applicable legal norms and procedural safeguards
within and outside of the EU” it indirectly recognizes the legitimacy of the
Court of Arbitration for Sport. This is notwithstanding the very acute doubts
about the “voluntary” nature of this arbitration[5],
as well as potential concerns related to its independence. In this context, one
can only be perplexed by the willingness of the European Commission to throw
caution to the wind. The CAS might be a useful tool for sports governing bodies
trying to evade the purview of national courts; it might even be necessary to
avoid the fragmentation of the global anti-doping regime or to offer a quick
and clean dispute resolution mechanisms in certain disciplinary or commercial cases.
However, its legitimacy and its capacity to safeguard the fundamental rights of
athletes is not a given and the European Commission would have been well
advised to show considerable restraint in weighing in on this question. This
lack of caution is generally true for other very complex socio-economic issues
tackled en passant in the Arrangement,
and in which UEFA had a keen (economic) interest to defend: the release of
players for the national teams, the intellectual property rights over football
and the regulation of the transfer system.
Finally, UEFA will now enjoy privileged access
to the highest level of the EU’s executive branch. This is akin to an ‘all you can eat’ lobbying ticket to
defend its interests and views. UEFA may have a central function in the
organization of European football, but, it is not the UN, States have no say in
its policies, nor have the people which are directly affected by them.[6]
There is no good reason to confer a special political status to UEFA, especially
taking into account that, as a private government, it refuses to give a real
institutional voice to some of its most prominent “citizens”: the players, the
clubs or the fans. By doing so, the Commission risks cutting itself from the
other legitimate voices of football and losing sights of its duty to defend the
European general interest as a whole.
Did the outgoing European Commission rush to
cash-in on a visual accolade from Michel Platini? One is left to wonder. For
all these substantial political concessions, the European Commission won only
the meagre promise that “UEFA will collaborate in the context of the planned
European Week of Sport, using football to promote healthy physical activity”.
Such an Arrangement could have potentially made sense, if the European
Commission would have imposed in return certain governance standards on UEFA
(real stakeholders participation, transparency requirements etc…), or
conditioned its signature to the full implementation of the recently agreed
(and not even mentioned in the Arrangement) European social dialogue agreement for professional football players.
In short, with this Arrangement the European
Commission capitulated politically in front of UEFA. Such a capitulation need not
take a legally binding form; its political meaning is enough. It is a sad day
for European Sports Law and for those keen on democratizing the governance of
football and on subjecting it to the rule of law. One can only hope that, as it
has done in the past, the Court of Justice will be willing to supplant the
Commission in defending the European general interest and the rights of
athletes.
[1] Article 17(1) TEU reads as
follows: “The Commission shall promote the general interest of the Union and
take appropriate initiatives to that end. It shall ensure the application of
the Treaties, and of measures adopted by the institutions pursuant to them. It
shall oversee the application of Union law under the control of the Court of
Justice of the European Union. It shall execute the budget and manage
programmes. It shall exercise coordinating, executive and management functions,
as laid down in the Treaties. With the exception of the common foreign and
security policy, and other cases provided for in the Treaties, it shall ensure
the Union's external representation. It shall initiate the Union's annual and
multiannual programming with a view to achieving interinstitutional agreements.”
[2] On the scope of the notion of
« Legitimate expectations » in EU administrative Law, see P. Craig, EU Administrative Law, OUP, 2012, pp.
567-570
[3] For an early discussion of
soft law in the framework of EU law see : F. Snyder, ‘The effectiveness of
European Community Law : Institutions, Processes, Tools and Techniques’, Modern Law Review, vol.56, 1993, 19-56,
p.32-35
[4] L. Senden, Soft law in European Community Law, Hart
Publishing, 2004 ; O. Stefan, Soft
Law in Court : Competition Law, State Aid and the Court of Justice of the
EU, Kluwer, 2013.
[5] The recent Pechstein decision
by the Landgericht München highlighted this lack of consent from the part of
the athlete. See the decision at www.openjur.de/u/678775.html
[6] On the need to distinguish
between its factual capacity to create legal rules and its legitimacy to do so,
see A. Duval, ‘Lex Sportiva : A playground for transnational law’
available at http://ssrn.com/abstract=2317826