The possible implications of its 'Sport Article' for Sport in the new streamlined Europe.

Blackshaw, Ian

After eight years and much wrangling and politicking, the Lisbon Treaty of 13 December, 2007 was finally ratified with the signature of the Czech President on 3 November 2009 and is effective as of 1 December, 2009.

This is not only a milestone in the history and evolution of the so-called European Project, but also - to some extent - for the regulation of sport within the twenty-seven Member States of the Union, comprising some 500 million people. For the first time, the governing Treaty contains a specific provision on sport giving the Union competence in the sports arena. The Lisbon Treaty now contains a so-called 'Sport Article' in Article 165, which in sub-paragraph 2 of paragraph 1 of this Article makes the following provision: "The Union shall contribute to the promotion of European sporting issues, which taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function."

In effect, the Article recognises the social and political role and importance of sport at the European level.

Sub-paragraph 2 of the Article makes further provision as follows:

"Union action shall be aimed at:

* developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen."

Finally, sub-paragraph 3 of the Article looks at the wider relationship between sport in the Union and beyond its borders and provides as follows: "The Union and Member States shall foster cooperation with third countries and the competent international organizations in the field of education and sport, in particular the Council of Europe."

In fact, the Council of Europe has been very active over the years in the sporting arena -not least in the area of doping in sport. For further information on the scope of the activities of the Council of Europe in sport, see 'The Council of Europe and Sport: Basic Documents', edited by Robert C R Siekmann and Janwillem Soek, 2007, The TMC Asser Press, The Hague.

So, what difference will such a general and rather vaguely worded 'Sport Article' make to the existing and future body of European Union Law in the sporting field?

In my opinion, very little! In fact, perhaps the more important EU text on sport is that to be found in the EU 'White Paper' on Sport, published by the European Commission on 11 July, 2007 (COM(2007) 391 Final).. This provides a framework in which the EU operates in sport and recognizes - as does the new 'Sport Article' - the 'specificity of sport'. A term which - no doubt - will be the subject of further clarification in the future.

However, according to Sepp Blatter, President of the World Governing Body of Football, FIFA, who recently met with the Vice-President of the European Parliament, Pal Schmitt, whom he has dubbed as the 'EU Ambassador on all Sports', the new 'Sport Article' will make it easier for FIFA to introduce the so-called 6+5 rule. For a long time, it has been considered - a view to which the writer of this Opinion subscribes - that the 6+5 Rule was incompatible with EU Law. When recently questioned on this point, in the light of the Lisbon Treaty, Blatter had the following to say: "Contrary to what may have been said, the '6+5' rule does not contravene the European Labour Law on the freedom of movement. Clubs will still be free to take on as many foreign players as they want. When a match kicks off however, they will have to have six players on the pitch who are eligible for the national team of the country in question."

Under current FIFA rules, a player can live in a foreign country for only two years before he can claim that nationality. The 6+5 rule will also seek to change this and move the limit to five years to stop the misuse of the loophole in the previous ruling.

Currently, many South Americans and Africans are being 'nationalised' by a whole host of countries across the world. FIFA are, therefore, trying to stem this flow of talent by the introduction of the new ruling.

UEFA are also considering introducing their own version of the 6+5 rule, namely, the 4+4 rule! They are also currently looking at the possibility of banning transfers of players aged 17 and under. This latter provision may pass legal muster under sub-paragaph 2 of the 'Sport Article' quoted above, which seeks to protect the physical and moral integrity of the youngest sports persons. In other words, a general rule against the exploitation of minors involved in sport!

Be all the above as it may, it seems to me that the main effect of the new 'Sport Article' will be to add some legitimacy to the intervention of the EU in the sports arena - if, in fact, any is needed! After all, the EU has successfully managed without the 'Sport Article' for more than 50 years and the existing rules will continue to apply!