It is often claimed that ‘sport is special’ and should not mix with law and politics. This argument is frequently used as a claim for the self-regulation of the sports sector. However, sport is a sizeable economic activity and participants in it have rights protected by law.
Equally, although sports bodies are private entities, they exercise functions that engage public interest. Separating sport from law and politics is not only difficult, it is undesirable. But how far should the law reach into the activities of sports bodies and to what extent should public authorities resist the temptation to use sport for political purposes?
These questions have been explored by Professor Richard Parrish, Director of Edge Hill’s Centre for Sports Law Research. Through his research and senior advisory roles for national governments and the EU, he has changed thinking and practice in this area. Three case studies highlight his engagement – his work on the regulation of football agents, his examination of nationality discrimination in European sport and his role in persuading the EU to integrate sport into its foreign policy.
Football agents: the need for reform
Football may play a special role in our society, but it is also an industry. The role football agents play within it receives a bad press. Generally, they are not valued for the important role they play in contract renewals and the transfer of players. However, there are legitimate concerns regarding the conduct of some agents and the fees they command.
In an attempt to address these concerns, FIFA, the world governing body of football, introduced new football agent regulations in 2015. Professor Parrish’s research highlighted a number of flaws and legal tensions within these new regulations. In a study funded by the EU, he urged a re-think and made a series of recommendations on agent reform including: a return to an agent licensing system, better regulation of agent payments, greater stakeholder involvement in the reform process, and stronger dispute resolution and sanction procedures. These recommendations have been accepted by FIFA and new regulations based on the above are being introduced.
The value of this work has been confirmed in testimonies provided by FIFA, the European Football Agents Association and the European Commission. Whilst some conflicts still exist, particularly around the issue of pay regulation, Professor Parrish’s work has played an important role in raising professional and ethics standards which will help the global football transfer system operate more effectively and legally.
Tackling nationality discrimination
The special nature of sport is often invoked to justify discriminatory practices. For example, in Europe, sport is often structured along national lines with national leagues and national teams being a common feature of the sporting landscape. To protect this model, the nationality of athletes is often used to determine their eligibility to participate. Through membership of high-level groups in the European Commission, Professor Parrish has highlighted the need for the EU to consider how to reconcile this model with the requirements of EU law which generally prohibits nationality discrimination.
A ground-breaking study for the EU assessed the nationality-based eligibility regulations of 26 Olympic Sports across all 27 EU member states. It identified that many sportspeople were being denied access to sporting competitions based on their nationality, a characteristic protected by EU Law.
The research argued that sporting competitions should be ‘open’ unless ‘the specific nature of the sport could be invoked to justify the proportionate exclusion of non-nationals.’ The grounds for exclusion discussed in the study were then relied upon by the European Court of Justice in a case concerning nationality discrimination in German athletics. The study fundamentally re-framed how the case and its arguments were presented in court and the basis on which the judgement was determined.
In a second study for the EU, Professor Parrish explored the compatibility of UEFA’s home-grown player rule with EU Law. Concerned at the impact of the European Court’s famous Bosman judgment, UEFA, the European governing body of football, introduced a rule requiring European football clubs to reserve a number of squad positions for locally trained players.
The study backed UEFA’s legitimate right to preserve special sporting values but questioned whether the rule went beyond what was necessary to achieve its objectives. The study informed the European Commission’s thinking into similar rules being adopted in other sports and the findings of the study have been at the heart of litigation in the Belgian courts, including being used as justification for a case referral to the European Court of Justice.
The soft power of sport
The above two examples highlight that although sport possess special features, there is a limited to how far the law can recognise this specificity. In other work for the EU, Professor Parrish has advised the EU on how it can harness the special appeal of sport in order to advance its foreign policy objectives.
The war in Ukraine reminds us that some states deploy ‘hard-power’ to secure foreign policy objectives. Others seek to influence overseas publics through attraction and not force. Working within a High-Level Group in Brussels for the European Commissioner responsible for Education, Youth and Sport, Professor Parrish advised the EU to harness the soft-power of sport to develop a sport diplomacy strategy to sit within its wider foreign policy. The argument presented was that European sport has a special resonance with overseas publics and can be used to amplify core EU policy messages.
Following delivery of the resulting report, the EU embarked on a number of legislative, administrative and political initiatives resulting in sport diplomacy becoming a new area of EU activity and a “permanent pillar of EU sports policy” (European Commissioner Navracsics).
Our research means that:
- Sports bodies have a clearer understanding of the legal boundaries of self-regulation and have a greater appreciation of the need to improve governance and protect the rights of sports participants.
- Public authorities, including judicial bodies, have a better understanding of the special features of sport and an appreciation of how and when the law should recognise this specificity.
- The soft-power of sport has been harnessed by the EU to forge more peaceful and prosperous relations with the rest of the world.
Find out more about Richard Parrish’s research by viewing their profile on Pure:Professor Richard Parrish