UK Government criticises the EC's White Paper on Sport

The Department of Culture, Media and Sport (DCMS) has released a report criticising the European Commission's White Paper on Sport for its failure to express concrete views on the interrelation between EU law and the specificity of sport, particularly in relation to the selling of broadcasting rights and free movement of players.

In compiling the report, DCMS sought the views of numerous UK sports governing bodies, rightsholders and associations, including the FA Premier League, the RFU, the ECB, the BOA, the Professional Players Federation and the Sports Rights Owners Coalition.

The EC published the White Paper in July 2007 and at the time described the publication as "the first time that the Commission is addressing sports-related issues in a comprehensive manner". While the European Union has historically had no competence to deal with sport under the European Treaties, the Lisbon Treaty signed on 13 December 2007 states that the EU wants to contribute to the promotion of European sporting issues "while taking account of the specific nature of sport".

Under EU law, sport is no different from any other activity which has an economic or social value and therefore EU law should in theory apply to it without exception. However, the fact that sport is largely self-regulatory and in Europe is generally not governed by Member States means that it is in conflict with certain aspects of European legislation. The White Paper acknowledged that the reason for this was the unique nature of sport but also warned that sport "cannot be construed so as to justify a general exemption from the application of EU law."

DCMS disagreed with this second assertion, believing that the simplest way to acknowledge the specificity of sport would be to create a specific exemption for it from the jurisdiction of EU law as otherwise there is a lack of legal certainty for all stakeholders. It believed that the White Paper had failed to establish which types of sports-related activity would and would not be likely to be seen by the European Court of Justice as being compliant with the Treaty.

In relation to playing quotas, the White Paper highlighted the need for rules requiring teams to include a certain quota of locally trained players to ensure compatibility with the Treaty provisions provided that there was no direct discrimination based on nationality. Having received a mixed response from those stakeholders consulted (with the FAPL in particular demonstrating a reluctance to introduce quota systems, particularly in light of FIFA's proposed "6 + 5" rule), DCMS stated that individual sports governing bodies should be free to decide whether or not to introduce such quotas.

In relation to the selling of broadcasting rights, the principal driver of income for most major professional sports, DCMS believed that the collective selling of media rights by sports governing bodies (rather than the sale by individual clubs of the rights to broadcast their matches) in theory amounted to a restrictive practice in breach of EU competition law. Highlighting the importance of collective selling rights to safeguard funding for grassroots sport, DCMS suggested that sports stakeholders should have a "seat at the table" in all consultations regarding intellectual property and rights selling and criticised the White Paper for not paying more attention to this issue. It should be noted that DCMS did not advocate clear proposals for the selling of sports broadcasting rights.