The governance network of European football: introducing new governance approaches to regulate football at the EU level.

Geeraert, Arnout ; Scheerder, Jeroen ; Bruyninckx, Hans 等

Introduction

Sport originally was a self-regulating activity. The highest governing bodies of sport, global sport organisations (GSOs) like FIFA and the IOC, regulated their sports or events autonomously through self-governing networks with their own rules and regulations. This meant that sport generally fell outside the law, thereby escaping to a large extent the normal application of e.g. labour or fiscal law. At the same time, sport is increasingly relying on public services. A pertinent example of this are the police forces, which have to be deployed by governments in order to ensure a safe environment for sporting events. In recent years, we have also witnessed the growing commercial nature of sport organisations. Sport has largely become an economic activity, influenced by powerful commercial actors. This evolution has urged central and local governments to question the autonomous status of sports. Political entities now try to get a grip on sport bodies from a rule perspective, but encounter great difficulties in doing so. Sport organisations are very reluctant to give up their cherished autonomous status and point to the 'specificity' of their sector to justify this.

In addition, due to its growing economic nature, sport in general has been subject to a series of high profile difficulties in recent years. Henry and Lee (2004) mention different types of failure in governance in many GSOs. In football for example, we have witnessed cases of corruption, bribery, gambling scandals, money laundering, malicious players' agents, etc. Most recently, FIFA came under fire after some senior officials had been accused of taking bribes (BBC News 2010, Gibson 2010). These abuses clearly indicate a failure of governance in the football sector. At the same time, however, governments seem to grant sports a special status. Football in particular is often treated with economic and legal exceptionalism by governments. At the European level, ever since the Bosman1 case, FIFA and UEFA adhere to a strong protectionist vision of sport governance, even arguing that they should be afforded complete decision-making autonomy by the EU institutions (Parrish 2011). In the light of the many governance failures in the football sector, this claim does not seem legitimate. On the other hand, because of its limited legal competences regarding sports and because of the recognised autonomous status of sports governing bodies at the European level, the EU does not have the power to intervene too strongly in the sector. This means that at the EU-level, a difficult balance has to be found between allowing total autonomy and establishing an extensive government intervention. In this article, the authors make an attempt at identifying the structures of the governance network of European football in order to assess if the current balance can be considered democratically legitimate.

Whilst a lot has already been written on the emergence and empowerment of new stakeholders in professional football, the authors of this article feel it is now time to assess the governance structures of professional football; in particular how they function, and more specifically to what extent they can be considered democratically legitimate and what can be done to improve the latter. Our work builds up on the excellent work of Garcia (2007a, 2007b, 2008, 2009) and Holt (2007, 2009). This article aims at introducing a new approach in the academic debate on governance failures in professional football, but does not claim that our research is definitive. Rather, our goal is to present a broad, theoretically informed analysis on the governance structures in professional football, suggesting possible avenues for analysis. To this end, we use the Democratic Anchorage Model developed by Sorensen and Torfing (2005). It is our sincere hope that this article will open a new agenda for further research on this topic, based on modern governance approaches.

Theoretical framework

The evolution from a traditionally autonomous sector to a sector with government interference seems somewhat atypical from the perspective of modern governance theories. According to the latter, the public sector has seen an erosion of government in order to deal with today's multilayered society. In the sports sector, however, traditionally autonomous sport bodies are now subjected to attempts by governments to regulate their sector. Thus, there is no erosion of government intervention in the sector, but rather an increase. However, there is certainly an erosion in the power of the central regulatory bodies, i.e. the GSOs, due to the increasing government interventions on the one hand and the rise and empowerment of stakeholders on the other.

In this article, we summarise how the evolution from a self-governing network into a multi actor, multi-level governance network took place at the European level in the field of professional football and begin with definitions of the relevant terms.

Government

In Anglo-American political sciences, the concept 'government' refers to the formal institutions of state and their monopoly on the use of coercive power. 'Government' is characterised by its ability to unilaterally make decisions and implement them. The term thus refers in particular to the formal and institutional top-down processes which (mostly, but not exclusively) operate at the nation state level (Stoker 1998).

Governance

In the last two decades, a significant body of governance literature has emerged. This has led to some considerable theoretical and conceptual confusion regarding the concept. Van Kersbergen and van Waarden (2004) for example, distinguish no less than nine different meanings regarding 'governance'. Therefore, it is necessary to strictly define this concept for the purposes of our analysis.

Society is becoming increasingly complex, fragmented and layered. In order to govern efficiently, there is a need for negotiation and interaction between the different kinds of organisations and groups of state, market and civil society (See Figure 1; Sorensen and Torfing 2005). The concept civil society refers to a multitude of organisations, ideally initiated and maintained by the voluntary activities of citizens (Dekker 2001).

However, this does not mean that central and local governments are being hollowed out (Hirst 1994). States still play a key role in local, national and transnational policy. Yet at the same time, their powers are steadily eroding, since they no longer monopolise the governing of the general well-being of the population (Rose 1999, Sorensen and Torfing 2005). Governments increasingly control society by involving different groups of citizens, professionals, voluntary organisations, unions and private actors in their decision-making (Rose 1996). In other words, governments are gradually controlling society in a horizontal or networked way. This new horizontal form of governing is called 'governance'. It can be viewed as the counterpart of the formal, classical and vertical or top-down 'government'.

Governance networks

In the light of the many examples of government and market failures, governments are increasingly governing society through self-governing networks. Within these networks, different kinds of citizens, professionals, voluntary organisations, unions and private actors are being involved in policy-making. This allows authorities to govern 'at a distance' (Rose 1996). The concept 'governance networks' thus refers to the upcoming forms of interactions between government, civil society and market actors regarding public policy issues. These interactions are usually characterised by high degrees of self-regulation and a relatively small degree of external regulation (Klijn and Koppenjan 2004, Torfing 2005). The concept 'governance networks' in fact combines the concept 'governance' and the policy network as an organisational framework.

One might ask whether it makes sense to talk about governance networks in a generic sense. Because there are 'a number of distinctive features of network-types of governance that permit us to define governance networks as a general category that captures different forms of public-private interaction', Sorensen and Torfing (2009, p. 284) believe that this does make sense. They define the term as follows:

 'A relatively stable horizontal articulation of interdependent,
 but operationally autonomous actors, who interact through
 negotiations, which take place within a regulative, normative,
 cognitive and imaginary framework that to a certain extent is
 self-regulating and which contributes to the production of
 public purpose within or across particular policy areas'
 (Sorensen and Torfing 2005, p. 197).

The authors of this article agree with the arguments of post-liberal theorists that governance networks are an essential part of today's society. We should therefore focus on the opportunities they give us. Sorensen and Torfing (2005, p. 201) state on this note that 'we should rather ask ourselves how we can improve the democratic performance of governance networks, instead of writing them off for being inherently undemocratic'.

Evolution in the governance of European football: from autonomous self-governance to mixed governance

Political, legal and economic driving forces leading to a governance network

Since there already exists a large body of literature on how the current situation in football governance has emerged, we limit ourselves in this section to a summary of the political, legal and economic driving forces that are gradually leading to the emergence in European professional football of a governance network as defined by Sorensen and Torfing (2005).

The hierarchic pyramid network of football (Croci and Forster 2006, Garcia 2007b) can be characterised by the concept of 'government' in the sense that football's governing bodies use coercive power to unilaterally make and implement decisions. This highly undemocratic network (Siekmann 2005, 2006) first came under pressure due to a changing media landscape and increased merchandising (Andreff and Staudohar 2000, Holt 2007, Szymanski 2006). Football became increasingly commercial and more and more the target of, and integrated with, transnational business interests. It created a complex network with growing interdependence between business interests and the football world (Sugden 2002). This process of commercialisation also made clubs and national competitions powerful stakeholders, who were no longer satisfied with their lack of participation in the hierarchical pyramid network. The richest clubs and leagues in particular therefore started contesting the legitimacy of football's governing bodies (Holt 2007).

Commercial factors have largely contributed to the growing internationalisation of sport, making it a cross-border activity for which sports bodies have established rules (Parrish 2003b). Many of these rules are captured by EU's Internal Market competences, making the Court of Justice of the European Union (ECJ) a suitable venue for unsatisfied stakeholders to challenge the decisions made at the top of the governing networks of their sports. In Walrave (2), the first ECJ case concerning sport in 1974, the ECJ ruled that EU law is only applicable to the economic aspects of sports. It is however very difficult to define non-economic sporting regulations, which in principle fall outside the scope of EU law. The Meca-Medina (3) ruling in 2006 anchored the approach followed by the Court in sports issues since 1974 that restrictive effects on competition that are inherent in the organisation and activities of sports bodies are not in breach of EU law, provided that these effects are proportionate to the legitimate genuine sporting interest pursued. The assessment of the latter can only be made on a case-by-case basis (European Commission 2007b).

In the Bosman case, the ECJ ruled that certain restrictions on the mobility of professional football players in FIFA's transfer rules were not proportionate to the legitimate interest pursued. As Garcia (2007b) describes, the long and intense negotiations between UEFA and the European Commission on new FIFA transfer rules eventually resulted in a strong partnership. The Bosman case proved to be a watershed in the sense that it established a definitive EU involvement in sports, placing it on the 'high politics' agenda (Garcia, 2007a). The Declarations on sport, added to the Treaty of Amsterdam and issued at the Intergovernmental Council of Nice, which called on the institutions to take into account the social significance of sports, are the most obvious manifestations of the latter (Niemann and Brand 2008, Parrish 2003c). These non-binding documents are also an expression of the lobbying power at the highest EU level of the so-called 'football community', generally aimed at minimising EU intervention in the sector (Niemann and Brand 2008).

On the occasion of the conclusion of the agreement in 2001 between FIFA, UEFA and the European Commission on new FIFA transfer rules following the Bosman judgement, the involved Commissioners invited FIFA and UEFA to encourage clubs to start or pursue social dialogue with the representative bodies of football players, and they offered the Commission's assistance in this matter. Ever since, the Commission has been supporting projects for the consolidation of social dialogue, not only specifically in the football sector, but also in the sport sector globally. (4) The 2007 White Paper on Sport (European Commission 2007b) further encouraged social dialogue in professional football, which in 2008 resulted in the creation of a EU sectoral social dialogue committee in the Professional Football sector. The White Paper furthermore acknowledged the emergence of new stakeholders in the governance of professional football and implicitly questioned the traditional hierarchic pyramid structure of football governance (Garcia 2009).

Figure 2 depicts the emergence of the governance network in European professional football. The intertwined political, legal and economic driving forces are assumed to be enduring. Therefore, the model shown below has a dynamic nature, as we can expect that the evolution from a hierarchic pyramid network to a governance network will continue in the future.

The stakeholders in the governance network of European football

The intertwined political, legal and economic driving forces led to the empowerment of certain stakeholder organisations in European football. Besides this, it is also important to emphasise the role of the European Commission in the emergence of representative organisations with the organisational capacity to influence the governance of football. The Commission's promotion for the establishment of a EU sectoral social dialogue committee in professional football necessitated the presence of valid representative organisations for workers and employers in the sector. This has certainly benefited the representative organisations for players and leagues, respectively the International Federation of Professional Footballers Associations- Division Europe (FIFPro) and the Association of European Professional Football Leagues (EPFL). The latter was founded only in 2005 (EPFL 2010). In 2008, European Club Association (ECA) was founded as a result of the dissolution of the G-14, which was an association of 18 of the leading professional football clubs in Europe, constituted in 2000 but originating from an informal network founded in 1997 (Garcia 2008).

FIFPro, EPFL and ECA are now officially recognised by UEFA as the representative organisations for their members (UEFA 2007, 2008, 2009a). Since 2007, they have received a place on UEFA's Professional Football Strategy Council (PFSC), a purely consultative body created to build a network for (social) dialogue and consultation with other stakeholders in the governance of professional football. The PFSC informs the Executive Committee, the actual decision making body of UEFA (UEFA 2010, art. 7bis).

In March 2008, a new sectoral social dialogue committee was created at the EU-level, bringing together FIFPro (employees), EPFL and ECA (employers). The aim of the committee was to improve employment relations for all players and reduce disputes through dialogue (European Union 2008).

The rise of stakeholder organisations FIFPro, EPFL and ECA (hereafter: 'the stakeholder organisations') is consolidated by their official recognition by UEFA and the EU. Together with these two organisations, they operate within a network with, at least prima facie, the same characteristics as a multi-actor, multi-level governance network. The strict application of EU law by the Commission in the period right after the ECJ's Bosman ruling can be described as the exercise of government. Extensive lobbying by the football community and the Council declarations of Amsterdam and Nice swiftly averted this threat to the football bodies' autonomy (Niemann and Brand 2008). Yet, at the same time, the emergence of the stakeholders organisations and the involvement of high politics in the football sector prevented FIFA and UEFA from returning to the initial situation of self-governance. Figure 3 depicts these transformations in European football governance.

As can be witnessed, FIFA is not included in the multi-actor, multi-level governance model pictured above. However, because FIFA still imposes general rules and regulations on UEFA (e.g. the transfer regulations), its importance in the governance of European professional football cannot be underestimated. It is nevertheless obvious that especially UEFA has an important place in the governance network of European football (GNEF).

The governance network of European football compared with governance networks in the traditional sense

Economic driving forces have created a complicated web of interrelationships in the professional football sector, making it increasingly complex (Henry and Lee 2004). As stressed by Holt (2007), this mirrors the events in modern society that have caused governments to govern more horizontally in order to deal with the complex reality in today's society. The current abuses in professional football are embedded in a complex football sector that can no longer be efficiently governed by one central governing body. Thus, there is a strong similarity between governance networks in the traditional sense and the governance network in European football (GNEF) in terms of their raisons d'etre.

When comparing the characteristics of the GNEF with the definitions of governance networks by Sorensen and Torfing (2005), more similarities arise. First, one can definitely recognise a relatively stable horizontal articulation of interdependent, but operationally autonomous, actors in the relationship between UEFA and the EU. However, when we consider the stakeholder organisations' role in the network, this can certainly not be said about the GNEF as a whole. The stakeholders' lack of real decision power within UEFA's structures definitely creates asymmetrical power relations that lead to formal, hierarchical patterns. It is clear that the different actors in the network are interdependent. The European Commission, for example, has a coordinating and supportive competence in the field of sport, making a collaboration with UEFA necessary to ensure an effective policy. UEFA in its turn is dependent on the Commission firstly to consolidate its legitimacy which came under pressure due to the emergence of new stakeholders (Garcia 2007b); and secondly because football's regulations are subject to European law. ECA and UEFA are in their turn interdependent since clubs cannot leave UEFA because they would no longer be allowed to play in UEFA's competitions (e.g. the Champions League) and because UEFA obviously cannot exist without clubs. Due to the interconnectedness of professional football (Holt 2007), a similar logic applies to the relationships between the other actors.

Second, due to the venues for (social) dialogue with and between stakeholders created in recent years, and UEFA and the European Commission's good relationship, interactions within the network are increasingly conducted through negotiation.

Third, interactions in the GNEF take place within a framework with regulative, normative, cognitive and imaginary aspects. According to Sorensen and Torfing (2004, 2005), the regulatory aspect provides rules, roles and procedures; the normative aspect creates norms, values and standards; the cognitive aspect ensures shared concepts, codes, discourses and specialised knowledge; and the imaginary aspect creates collective identities, ideologies and visions. The problem within the GNEF is that interaction takes place in different institutional frameworks, each with their own normative, cognitive and imaginary aspects. These are, for instance, the PFSC, the EU social dialogue committee and the European Sport Forum under the umbrella of the EU, and finally the informal interactions between actors (e.g. the lobbying by UEFA). Needless to say, these institutional frameworks and the roles that the actors play in them, differ greatly.

Fourth, the self-regulatory effect of horizontal networks is lost if the formal authority regulates the network too much. If we consider the EU as the regulatory body in the network, there can be no question of an excess of rules in the network because of its limited powers in the field of sports. However, the atypical sports sector is historically -and still mostly- regulated by sports bodies. Within UEFA's structures, the stakeholder organisations have a mere consultative role and therefore, UEFA still strongly regulates the GNEF. This probably results in an excess of rules and procedures in the network.

Altogether, we state that the relationship between UEFA and the EU largely corresponds with Sorensen and Torfing's (2005) definition of a governance network. The principal differences that emerge when comparing the GNEF as a whole with the latter definition are to be found in the lack of a real horizontal relationship between UEFA and the stakeholder organisations. Table 1 summarises these and other differences as well as the resemblances between the GNEF and the governance networks definition given by Sorensen and Torfing. It can be expected that due to the above described driving powers, the number of similarities will further increase over the next years.

Governance networks Resemblances Differences
definition

A relative stable Is the case for the Is not the case
horizontal relationship for the
articulation of between UEFa and relationship
interdependent, but EU between UEFA and
operationally FIFPro, ECA,
autonomous actors; EPFL

Who interact True, especially Not all actors
through for UEFA and EU always involved
negotiations; in negotiations

Which take place Partly true Different
within a institutional
regulative, frameworks with
normative, various
cognitive and regulatory,
imaginary normative,
framework; cognitive and
 imaginary
 aspects. Only
 UEFA has a place
 in all of them

That to a certain EU as formal UEFA as central
extent is self- authority is unable body of authority
regulating and to unilaterally likely gives an
which contributes regulate the excess of rules
to the production network due to its and procedures
of public purpose limited competences within the
within or across in the field of network
particular policy sport
areas.

Table 1: Comparison of the GNEF with the governance networks
definition given by Sorensen and Torfing

Democratic legitimacy of the Governance Network in European Football

Policy makers consider the use of governance networks more and more as a legitimate and effective governance tool, and social scientists and politicians praise their contribution to 'efficient governance'. The scientific literature on the subject thus focuses mainly on the advantages of the networks rather than discussing the potential lack of democratic legitimacy they may entail (Sorensen and Torfing 2005). Only in recent years, a second generation body of governance network literature has emerged, focusing on the democratic performance of governance networks (see e.g. Bogason and Musso 2006; Edelenbos, Steijn, and Klijn 2010; Pierre 2000; Skelcher, Mathur and Smith 2004; Sorensen and Torfing 2005; Wolf 2002). This new field of theory mainly focuses on the anchorage of governance networks in traditional democratic institutions and generally accepted principles of democratic procedures.

Sorensen and Torfing (2005) claim that in order to improve the democratic performance of governance networks, we must enhance their democratic anchorage in elected politicians, the membership basis of the participating groups and organisations, a territorially defined citizenry and a democratic grammar of conduct. Their 'Democratic Anchorage Model' is the first holistic proposition in governance network theory for a ready-made model, applicable to any specific governance network in order to measure its democratic legitimacy. In this model, the discussion about the democratic character of the governance networks comes down to the level of 'democratic anchorage' of the network: how does the network relate to traditional democratic institutions on the one hand; and to the generally accepted principles of democratic procedures on the other hand (Edelenbos et al. 2010). More specifically, it assesses four dimensions that re-invoke classical themes in liberal theories of democracy, which assures a rather innovative holistic approach on democratic legitimacy that, in our opinion, stands out in the recent academic literature on the subject. For instance, the centrality and density model by Rowley (1997), used by Holt (2009) in a recent study on football governance, focuses merely on the intra-network relations and their functioning and therefore necessarily fails to assess the (democratic legitimacy of) the network as a whole.

Sorensen and Torfing further refined their Democratic Anchorage Model by offering operational definitions of the four dimensions of the model, and by demonstrating how the assessment criteria can be applied in an empirical case study of a governance network involved in the recent decision to build a bridge between Denmark and Germany (Sorensen and Torfing 2009). This recent study is used in this article as a signpost in the application of the Democratic Anchorage Model to the governance network of European football.

Application of the democratic anchorage model to the governance network of European football

The Democratic Anchorage Model claims that governance networks are democratically anchored to the extent that they:

'1 are controlled by democratically elected politicians;

2 represent the membership basis of the participating groups and organisations;

3 are accountable to a territorially defined citizenry; and

4 facilitate interaction in accordance with a commonly accepted democratic grammar of conduct' (Sorensen and Torfing 2005, p. 201).

It is assumed that none of the above anchorage points alone can assure the democratic performance of the governance network. In fact, the four anchorage point compensate each others' shortcomings and combined, they provide a strong source of democratic legitimacy (Sorensen and Torfing 2009).

First anchorage point: democratic anchorage in elected politicians

The first anchorage point expresses the need of a close linkage between representative democracy and a specific governance network. It is important to ensure that democratically elected politicians are capable of monitoring and influencing the policy-making that takes place in the network. This way, it is ensured that the structure, procedures and decisions of the network are in line with the popular will expressed by the political majority of elected assemblies. To this end, elected politicians must have access to information about the governance network's processes, outputs and outcomes. They must assume the role of meta-governors, define the objectives of their meta-governance and combine different meta-governance tools to achieve these objectives (Sorensen and Torfing 2009).

Meta-governance can be broadly defined as 'the governance of governance'. It creates conditions in which the network must operate and involves the attempts of politicians and administrators to construct, structure and influence the game-like interaction within particular governance networks (Sorensen and Torfing 2005). This 'steering' of the network should not be confused with 'government'. Sorensen and Torfing (2009) state that public metagovernors should avoid regulating governance networks in ways that eliminate their capacity for self-regulation, but instead, via a series of more or less subtle and indirect forms of governance, seek to shape the free actions of the network actors in accordance with a number of general procedural standards and substantial goals defined by the metagovernors.

The governance network of European football was not voluntarily initiated by elected politicians. Rather, the Bosman ruling involved the EU in football-related issues as a mediator in an internal labour-related dispute between stakeholders (Garcia 2008). Therefore, as a consequence we state that elected politicians at the EU-level were never really aware of the presence and role of the governance network, although it is nevertheless highly visible. Lobbying by football's governing bodies focused on the concept of 'autonomy' (Garcia 2007a), expressed in e.g. the Declarations on sport, and also the EU's limited legal competence regarding sports, have clearly made the EU wary of intervening in the sector. As a result, politicians at the EU level clearly failed to realise the meta-governance potential in the network and no clear meta-governance objectives were defined. Apart from the stimulating of (social) dialogue in the professional football sector, the EU has a very passive role in the network and as a consequence, it is UEFA that steers the network. This is clearly demonstrated by UEFA's proactive dialogue/lobbying strategy to introduce its new rules on locally-trained players to European institutions as described by Garcia (2007b).

Over recent years, UEFA has consolidated its meta-governance over the GNEF by building up a pragmatic relationship with the EU institutions, more specifically with the Commission (Garcia 2007b), the Parliament through the creation of the Parliamentary Group 'Friends of European Football' (Holt 2007) and the Member States via the European Sports Forum (Willis 2010). The stakeholder organisations on the other hand have been integrated in UEFA's system, yet at the same time they did not receive genuine decision-making power. This has averted the threats to UEFA's legitimacy as the governing body for European football and certainly also strengthened its control over governance developments (Holt 2009).

One direct consequence of UEFA's meta-governance of the GNEF is the 'special status' of football, which some find 'exaggerated' (Van den Bogaert 2006, pp. 18-19). The redefinition of football from a mere economic activity to an activity including social values and an accepted specificity can be considered as a great success for football's governing bodies (Garcia 2008). However, finding the right balance between treating football (and sports in general) as 'normal' economic activity and taking into account the notion of 'specificity' is important yet very difficult. The recognition of too few 'specificities of sport' may lead to an ineffective sports market, while the recognition of too many will undermine the fundamental rights of stakeholders within the sector (Van den Bogaert 2005; Siekmann, Parrish, Garcia and Miettinen 2010). The increase in labour related legal disputes in professional football, often concerning contractual stability issues (see e.g. Van Megen 2010), indicates that the right balance in this matter has not yet been found. With UEFA's meta-governance of the GNEF, the balance has certainly been tipped in favour of the specificity of the sector.

Concluding, from a democratic point of view, UEFA's meta-governance of the GNEF and the EU's lack of it is problematic. Therefore, democratic anchorage in this dimension is weak. In its recent (January 2011) Communication 'Developing the European Dimension in Sport', the European Commission seems to demonstrate a more proactive approach to professional football. Remarkably, where in the White Paper the Commission praised the 2001 FIFA transfer system as 'an example of good practice that ensures a competitive equilibrium between sport clubs while taking into account the requirements of EU law' (European Commission 2007b, p. 15), it now states that 'the time has come for an overall evaluation of transfer rules in professional sport in Europe' (European Commission 2011a, p. 12). The Commission will launch therefore a study on the economic and legal aspects of transfers of players and their impact on sport competitions. Also, in the search for ways to improve the situation with regard to the activities of sports agents, the Commission will organise a conference bringing together representatives of the sport movement; and finally, the Commission plans an evaluation of the rules on locally trained players. While this approach by the Commission is certainly positive for the network's democratic performance, the proposed actions do not yet indicate a comprehensive meta-governance approach.

Second anchorage point: democratic anchorage in participating groups and organisations

In order for the governance network to obtain democratic legitimacy, the network actors must advance valid claims to represent specific groups and/or organisations (Sorensen and Torfing 2009). The relationship between the network representatives and the constituency which they claim to represent, should be evaluated in terms of the degree to which those represented identify with the representatives (Saward 2005). To this end, the concrete performance of the representatives and the conditions of the possibility for the represented to critically evaluate this performance should be scrutinised (Sorensen and Torfing 2009). More specifically, represented groups and/or organisations must have the capacity and opportunity to critically evaluate the pursuit of their interests and the representatives must be sensitive to any criticism on this subject (Sorensen and Torfing 2009). The rationale behind the anchorage in this dimension is that the represented groups and/or organisations constitute a 'demos' of directly affected people that the different network actors must represent (Sorensen and Torfing 2003).

In recent years, the GNEF has made great progress regarding its anchorage in this dimension. UEFA, like FIFA, claims that it represents the concerns of all football's stakeholders and that it defends the interests of football as a whole (Holt 2007). With the rise of the stakeholder organisations, the legitimacy of football's governing bodies was increasingly being questioned. Today, FIFPro, EPFL and ECA all recognise UEFA as the European governing body for association football at all levels in exchange for a place in its PFSC (UEFA 2007, 2008, 2009). UEFA itself has changed its attitude towards the EU from hostility to cooperation (Garcia 2007b). Despite the fact that the EU territory does not cover the whole UEFA territory, which comprises 53 member associations, UEFA now recognises the consequences and impact EU law can have in professional football and as a result it recognises the EU as the elected political body in the governance network.

Progress has also been made regarding the validity of the stakeholder organisations' claim to represent the particular groups and organisations in the network. At the time of the negotiations on new FIFA transfer regulations after the abolition of the old rules because of Bosman, FIFPro was severely struggling with representativeness issues, both internally and externally. These difficulties were actually one of the reasons for its eventual lack of involvement in the new regulations of 2001. First, British officials argued that most English footballers had never heard of the organisation, while other trade union organisations even reported that FIFPro was not the universal representative of all players; and second, there were strong internal divisions regarding the contractual stability issue between player unions from bigger and smaller leagues (Irving 2002). Today, FIFPro is recognised by both UEFA and the EU as the organisation that defends the interests of all professional football players and together with the improvement of its organisational strength - thanks to the European Commission's (financial) support (see supra)-, this has certainly benefited the perception of FIFPro by the represented players and unions as their representative organisation in the GNEF.

The ECA was founded as a result of the dissolution of the G-14, an organisation that claimed to defend the interests of all European clubs, which was rather questionable considering that its members were the richest and most successful European clubs. ECA membership however is not restricted to a small number of successful clubs, which makes its claim of being the sole representative body for all football clubs at European level more legitimate than that of its predecessor. Still, its membership is based on the UEFA ranking of its member associations so that wealthy and powerful clubs are clearly overrepresented. Thus far, however, there have not been any significant protests against ECA's conduct in the GNEF from smaller clubs.

Finally, thus far, EPFL has not experienced any protests from its constituent organisations regarding its validity which is only natural, considering its origin and membership composition. The organisation was created in 2005 out of its predecessor EUPPFL (Association of European Union Premier Professional Football Leagues), an organisation created on the initiative of the English and Italian football leagues, as there was a need for an organisation to represent the views and positions of Leagues and clubs on matters of mutual interest and concern. EPFL is thus an umbrella organisation for the national football league organisations that organise national competitions.

As we do not have extensive information about the opinions and views of the represented organisations and groups, a thorough evaluation of whether they accept the validity of the stakeholders organisations' claim to representativeness cannot be made here. However, it is clear that a lot of progress has been made in this dimension. It seems that at present, the GNEF has a rather strong anchorage in participating groups and organisations.

Third anchorage point: democratic anchorage in a territorially defined citizenry

The rationale behind the introduction of this dimension is that in order to obtain democratic legitimacy, the governance network should be accountable to the citizens who are directly affected by its decisions (Sorensen and Torfing 2009). This prevents the network from becoming a closed and secret club, 'operating in the dark' (Dryzek 2007, Fox and Miller 1995, Newman 2005). In order to ensure democratic anchorage in this dimension, the tasks, remit and composition of a governance network must be fully visible to concerned publics, the governance network must produce regular narrative accounts that seek to justify its decisions, actions and results in the eyes of the broader citizenry and it must engage in a constructive dialogue with those who are publicly contesting their decisions, actions and results. Finally, the governance network must display some level of responsiveness towards criticisms and alternative proposals raised in the public debate (Sorensen and Torfing 2009).

The emergence of the GNEF has certainly benefitted UEFA's transparency (Garcia 2007b; Holt 2009). In its 2011 Communication 'Developing the European Dimension in Sport', the European Commission stresses that its respect for the autonomy of the sports sector -within the limits of the law- is 'conditional on the commitment of the sector to democracy, transparency and accountability in decision-making' (European Commission 2011a, p. 10). Should UEFA not respect to a certain degree these principles of good governance in its internal functioning, its autonomy might quickly be contested by the EU and the stakeholders organisations. However, according to Holt (2009), the chronology and process of decision-making within UEFA remains hard to detect for the stakeholders. The overall process of decision-making within UEFA remains vague, making it impossible to track down the influence of stakeholder input (Holt 2009). Considering our lack of extensive data on UEFA's decision making procedures, we cannot make a thorough evaluation of UEFA's openness and decision-making transparency. Therefore, we restrict ourselves on this note to the assumption that improvements have been made in recent years, but as decision-making within UEFA still goes through convoluted and unclear processes, there still is a need for greater transparency in UEFA's functioning.

We can also make a few comments on the openness of the network as a whole. As stressed above, interactions within the GNEF take place in different institutional frameworks, so that the remit and composition of the network is not fully visible to concerned publics. Moreover, UEFA's relationship with the EU institutions is to a high degree characterised by lobbyism, which is illustrated by its strategy to promote new rules regarding locally trained players (Garcia 2007b). These rules were finally implemented without much opposition and without a narrative account that seeks to justify why they were not scrutinised for a possible breach of EU law, i.e. an indirect restriction on the freedom of movement. Altogether, it is very hard to see where and how decisions are made in the GNEF and it does not produce regular narrative accounts that seek to justify its decisions, actions and results.

The GNEF does not display an acceptable responsiveness towards criticisms and alternative policy proposals raised in the public debate, nor does it engage in a constructive dialogue with its critics. We have already stressed the EU's passive role in the network and UEFA's metagovernance of it. UEFA as the metagovernor of the network has decided to show only a very limited -and if it did a rather slow- responsiveness towards criticism. In the past, journalists who were critical to the policy or decisions of FIFA or UEFA were reportedly sometimes banished from their events (Blanpain 2009). Football is very attractive to politicians. They often use it to win votes and they want to be seen at major football events. People within the football community are well aware of their power (Garcia 2007b). As a consequence, football's governing bodies were not put under sufficient pressure by governments to encourage them to take actions against certain abuses. The increased commitment of UEFA to good government principles has in principle improved this. A recently created Club Financial Control Panel, aimed at improving financial fair play in the UEFA club competitions, illustrates this (UEFA 2009b). However, football's governing bodies are bound by their own and stakeholders' commercial interests, which certainly has an impact on its responsiveness towards criticism. Because of UEFA's metagovernance of the GNEF, the lack of responsiveness towards criticism reflects on the network as a whole.

Our conclusion is that again, improvements have been made in recent years regarding the anchorage of the GNEF in this dimension. Although we lack the necessary data to evaluate this dimension more thoroughly, we can nevertheless assume that, because of the described issues, these improvements will not prevent the network from having a rather weak anchorage in this dimension.

Fourth anchorage point: democratic anchorage in democratic rules and norms

In order to ensure the democratic performance of the governance network, it must be anchored in a set of democratic standards regulating the processes and interactions proceeding within the network. To this end, inclusion and exclusion must be subject to explicit criteria for admittance. Also, the degree of inclusion in the network should be a function of the intensity and extent to which actors are affected. Included actors should be able to influence decisions and participation in the governance network must contribute to the enhancement of the political empowerment of the participating actors. Interactions within the network should be based on democratic deliberation, that is on openness; agonistic respect for other people's opinions; commitment to reach a rough consensus; and a relatively transparent decision-making process (Sorensen and Torfing 2009). Network actors with conflicting views and interests should not regard each other as enemies to be eliminated by all possible means, but rather they should respect each others' right to voice and pursue their opinion (Mouffe 2005) and they should aim an inclusive compromise in the form of a 'rough consensus'. Finally the governance network must stimulate democratic innovation through self reflexive and experimental processes. Democracy must be constantly developed and governance networks should be judged on their ability to spur such a development (Sorensen and Torfing 2009).

The stakeholder organisations are now part of UEFA's structures through their membership of the PFSC and they are involved in its decision making procedures. Their participation in the GNEF has certainly led to their political empowerment and this is especially the case for FIFPro. However, according to UEFA's statutes, UEFA is not obligated to involve the stakeholders in its decisions (UEFA 2010, art. 3bis). As UEFA's decision-making procedures are quite obscure, it is not clear to what extent the stakeholders organisations can influence decisions.

There are no explicit criteria for admittance to the network. The specific nature of the driving forces behind the GNEF led to the empowerment of certain -very important- stakeholders. These, if you like, officially EU and UEFA sanctioned stakeholders are however not the only stakeholders in European professional football. Other stakeholders including referees, TV companies, corporate partners, football agents associations such as European Football Agents Associations (EFAA), supporters organisations such as Supporters Direct (SD) and the Football Supporters' Federation (FSF) are currently excluded from the GNEF. If the intensity to which actors are affected should be considered as the determining factor for participation in the network, supporters organisations especially deserve their place within the GNEF.

Interactions within the network are too often conducted in an atmosphere of hostility, often without the eventual goal of a broad consensus. The events within the context of the EU sectoral social dialogue committee are exemplary in this sense (see Colucci and Geeraert 2011). Recently, the committee was at a serious impasse, following the refusal from UEFA, EPFL and ECA to sign an agreement on minimum requirements for professional football players (FIFPro 2011). The impasse revealed a suspiciousness towards FIFPro's increasing influence in the GNEF and this is mostly connected to divergent views on contractual stability. A recent letter from FIFPro Division Europe president Philippe Piat (2011) to the ministers of sport of the EU Member States, despite displaying a one-sided view on matters, reveals less than friendly relations between FIFPro and the other stakeholders. There can be no doubt that this has a very negative impact on the functioning of the GNEF.

Since the Amsterdam Treaty, the European institutions see sports as a tool for a social and cultural policy. Through the educational, social and cultural role of sport the network can contribute to a democratic improvement of society (European Commission 2007a). In that respect, the EU sees the GNEF as a part of a broader democratic process. However, the network completely fails in producing policy outcomes that reduce social and political injustice. Although it must be said that a lot of the current abuses in professional football can directly or indirectly be linked to FIFA, it is clear that governance failures in European and world football have very negative socioeconomic consequences. Unscrupulous players agents who benefit from illegal circuits of African and South American footballers (Tshimanga 2001, Blanpain 2009), financial abuses, players who are not paid, laundering and corruption are only a part of the long list of abuses in professional football. Moreover, in the absence of financial redistribution, European football is increasingly dominated by a small number of elite clubs which creates great inequalities within and between European professional leagues. Some scholars therefore advocate a greater redistribution of revenue in European professional football (Findlay, Holohan and Oughton 1999; Conn 2005).

Overall, the GNEF has certainly contributed to a greater amount of democratic innovation in European professional football. However, there still remains a large body of issues related to the anchorage of the GNEF in democratic rules and therefore, the overall score of the GNEF on this criterion is weak.

Conclusion

A lack of extensive data requires us to be cautious when drawing conclusions on the democratic legitimacy of the GNEF. Further research is necessary to provide more detailed and empirically supported evidence which will ensure that more concrete recommendations can be made and specified. Although we are very much aware of this, we nevertheless feel that we can already make some general conclusions and recommendations.

The overall democratic anchorage of the GNEF is clearly weak, which is not surprising. First of all, Sorensen and Torfing admit they 'set the bar high' (2009, p. 294) and second, one must not forget that the governance of European football has come a long way. The recent shifts in European football's governing structures most definitely proved to be beneficial for its democratic legitimacy. Moreover, much unlike FIFA, which is absent from the network and still faces considerable challenges regarding its democratic functioning (Jennings 2006), UEFA has an improved commitment to good governance. The driving forces behind this shift to a governance network still have to work through, so that democratic legitimacy might increase even further. This organic shift will in itself however not suffice to enhance the democratic legitimacy of the GNEF to an acceptable level. Hereunto, actions must be taken in the network.

The unclear decision making structures in the network need to be clarified. More transparency from UEFA is an important precondition to this end, but the variety of forums in which negotiations are conducted is also problematic. Negotiations within the network are in serious need of more structure. A suitable solution could be a structured dialogue at the EU level, specifically intended for the European professional football sector with clear criteria of accession so that no stakeholders are excluded from the negotiations. Structured dialogue would also be an excellent tool of meta-governance for the EU.

There is also a strong need to ameliorate the current hostile relations between FIFPro and UEFA, EPFL and ECA. As these are mostly constructed around contractual stability issues, a full collective bargaining agreement between employers and workers in the professional football sector could be the solution to this problem. There are however many problems in this matter. For instance, such an agreement would concern FIFA's transfer rules, which means that UEFA as a continental affiliate of FIFA has no mandate to conclude such an agreement (FIFA 2010, art. 20(3) a).

As we have shown, UEFA's metagovernance of the network is in many ways problematic for the democratic legitimacy of the GNEF. Sorensen and Torfing (2009, p. 235) state on this note that politicians and public managers at different levels of government, charged with defending public interests, have 'a special responsibility for unleashing the potentials of governance networks'. Democracy forces them to justify their rule and legitimise the overall system of governance because public governance should be both effective and democratic (Sorensen and Torfing 2009). Therefore, we state that the EU, as the political body in the network, should seize the opportunity to steer the GNEF. The attempts of the public authorities to steer the self-regulating governance networks are ultimately backed by the threat of replacing the horizontal network governance with hierarchical rule, thus returning to a situation of 'government' (Sorensen and Torfing 2004). The EU has no legal competence to regulate sports, but it does have very strong Internal Market powers. Because of the enduring uncertainty regarding the conformity of football's transfer regulations with EU-law (see e.g. Egger and Stix- Hackl 2002, Drolet 2006, Olfers 2008), the Commission -as guardians of the treaty- in theory still has the power to threaten a return to the situation of 'government' as was the case right after the Bosman ruling. However, it must be said that regulation through Competition policy is difficult, as the ECJ -as mentioned- only rules on a case by case basis regarding the conformity of (international) sport regulations with EU (Competition) law, which might lead to an uneven regulation in the sector.

Much has already been written on the possible and/or desired role of the EU in the field of sports. According to Foster (2000), there are three possible models for the regulation of sport by the EU: regulation through the enforcement of private rights by the ECJ, self-regulation by sporting bodies or supervised autonomy. Currently, the latter model prevails. The Commission maintains a constructive dialogue with sports bodies with a view to striking the right balance between the specificity of sport and full compliance with EU law as interpreted by the ECJ (European Commission 2011b). However, the existence of a governance network in European football offers the EU new methods of policy steering within the model of supervised autonomy, using its new supportive and coordinative competence in the field of sport. (5) Foster recognises that sport authorities are best positioned to regulate their area of activity and ensure that sport, as a business, 'is still run partly for the love of the game' (Foster 2000, p. 64). We claim that this is only partly true, because we do not believe that sports authorities can do this unilaterally. Rather, sport bodies should be given an important role within sport governance networks. In the case of football, more openness, stakeholder participation and metagovernance by the European Union should help the network deal with the growing complexity of the football world. Football's governing bodies are not capable of dealing with this complexity unilaterally, just like governments are not able to deal with an increasingly complex society unilaterally. This way, governance networks in sport can be the solution to the failure in governance in the GSOs, just like governance networks were the solution to many examples of government and market failures.

* Previously published in the 2011 November Issue of the International Journal of Sport Policy and Politics.

Caption: Figure 1: Governance triangle

Caption: Figure 2: The driving forces behind the emergence of the governance network of European football

Caption: Figure 3: The governance of European football: from self-governance to multi-level, multi-actor governance

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RELATED ARTICLE: Hague Joint Proposal on the Definition of Sports Law

Whereas in the Jakarta Declaration on Lex Sportiva of 22 September 2011 the public and private dimensions of Lex Sportiva as well as the significance of both national and international perspectives in defining this concept is recognized; Whereas it is obvious that international academic consensus on the definition for "sports law" - with regard to its content as well as with regard to the terminology used - still is missing;

Convinced that the study of sports law needs a clear, workable definition of the concept of "sports law" in both respects (content and terminology);

We, the undersigned, propose to the sports law community to distinguish between the private and public parts of "sport law" - the public part referring to all sport(s)-related national and international legislation (laws and treaties and decision-making of intergovernmental organisations, customary law and case-law, etc.). and the private part referring to the rules and regulations of the national and international sport(s) governing bodies, their customary law practice and the jurisprudence of their arbitral tribunals and disciplinary organs, etc.;

And propose to use the following accompanying terminology - in the lingua franca of international sport relations: sports law ("umbrella" term)/public part: sporting law (lex sportiva); and private part: sportive law (lex ludica).

ASSER International Sports Law Centre, The Hague, 21 June 2011

by Arnout Geeraert, Jeroen Scheerder and Hans Bruyninckx **

** Arnout Geeraert: M.Sc. International and Comparative Politics, K.U. Leuven, Leuven, Belgium, LL.M. International and European Law, V.U.B., Brussels, Belgium; Jeroen Scheerder: Research Unit of Social Kinesiology & Sport Management, K.U. Leuven, Leuven, Belgium; Hans Bruyninckx: Institute for International and European Policy, K.U. Leuven, Leuven, Belgium.