Free movement of sportspeople
The right to free movement is one of the most important rights guaranteed by the European Union (EU) to its citizens. This right also applies to sportspeople, both professional as well as amateur. Consequently, any direct discrimination based on nationality or any unnecessary or disproportionate indirect discrimination and other obstacles that hinder the right to free movement of sportspeople are prohibited by EU law.
Freedom of movement is one of the fundamental freedoms guaranteed by the European Union (EU) to its citizens. Article 18 of the Treaty on the Functioning of the European Union (TFEU) prohibits discrimination on the basis of nationality, which also applies to situations where EU citizens exercise their right to freely move and reside within the territories of EU countries (Article 21 TFEU). Furthermore, the Treaty provides for the free movement of workers within the EU, which also entails the abolition of discrimination between workers of EU countries on the basis of nationality (Article 45 TFEU), and for the freedom of establishment and provision of services (Articles 49 and 56 TFEU).
These provisions also apply to professional and semi-professional sportspeople (as workers), other sports professionals such as instructors, coaches or trainers (as providers of services) and amateur sportspeople (as EU citizens). However, in the framework of implementing EU law, the Commission recognises the specific nature of sport, as established by Article 165 TFEU. Hence, it accepts limited and proportionate restrictions to the principle of free movement with regard to the:
- selection of national athletes for national team competitions;
- limitation of the number of participants to a competition;
- establishment of deadlines for player transfers in team sports.
Freedom of movement of professional sportspeople
Even though the entry into force of the Lisbon Treaty on 1 December 2009 provided the EU with a coordinating, supplementary and supporting competence in the field of sport (Article 165 TFEU), it remains a national competence, with sports federations often issuing the rules that govern sport. Nevertheless, these rules are subject to EU law on the free movement of workers when the activities of professional and semi-professional sportspeople involve gainful employment, as already ruled on several occasions by the Court of Justice of the European Union (ECJ).
The most notable of ECJ rulings was on the Bosman case in 1995, which also touched upon transfer rules as obstacles to free movement and nationality quotas as a form of direct discrimination. Mr Bosman, a Belgian footballer who had come to the end of his contract with a Belgian club, considered that the Fédération Internationale de Football Association (FIFA) transfer system had prevented his transfer to a French club. He brought an action against his club, the Belgian Football Federation and the Union des Associations Européennes de Football (UEFA), on the grounds that the transfer system and the rules governing nationality were discriminatory and invalid because they infringed the right to free movement of workers within the EU. The ECJ held that the rules governing transfers and nationality were indeed liable to prevent the free movement of players. Hence, the ECJ found that a club may not prevent a player who is a national of an EU country from being employed by a club of another EU country on the expiry of his contract or complicate matters by requiring that the latter club pay the former club a transfer, training or development fee. Besides, according to the judgment, rules on nationality whereby a club may field only a limited number of professional players who are nationals of another EU country are not authorised.
Freedom of establishment and provision of services of professional sportspeople
National training rules and qualifications for sports professions vary greatly. Depending on the circumstances, these rules may fall within the remit of federal sports authorities, school and university systems, public authorities or even professional organisations. In addition, requirements for exercising sports professions differ from country to country. In certain EU countries, access to jobs in the field of education and training is subject to possession of a state diploma, while in other EU countries a diploma is not necessary in order to work as a sports professional. In certain cases, these disparities may hinder the free movement of sports professionals and lead to conflicts: professionals in one EU country may consider that they have to face competition on their national territory from instructors from other EU countries who have received a different training or who have not received training at all.
Within the context of the freedom of establishment and provision of services, the general system for the recognition of professional qualifications goes some way to resolving this problem. This system applies to regulated professions, that is, professional activities reserved for holders of a diploma or any other qualification issued by the national education system. In this sense, it applies to certain professional activities in the field of sport (such as ski instructors). This is the case whenever the possession of a diploma is legally required to exercise a sports profession. This system implies that the host EU country cannot refuse permission to a national of another EU country to exercise a profession if s/he holds a qualification recognised by his/her own country for exercising that profession. However, exceptions are made when there are substantial differences in the level of qualifications or the duration of training.
Sports qualifications issued by national federations or other sports organisations also come within the scope of this system if these bodies have been formally authorised to issue these qualifications by a public authority.