Three ways to build an online media business to $50m in revenue

Great article from jeremyliew from Lightspeed VC:

Three ways to build an online media business to $50m in revenue February 26, 2007

Posted by jeremyliew in startups, VC, user generated content, Consumer internet, start-up, Entrepreneur, web 2.0, Venture Capital, advertising, Digital Media, Internet. trackback

As a venture capitalist, I’m interested in investing in companies that could be big one day, that could get to at least $50m in revenue.

Here are three ways to get to $50m in revenue as an online media business; indulge me in some math:

1. Be a site with a broad reach (say general social networking, communications, news). At large scale, without a great deal of targeting possible, a startup’s “run of site” or “run of network” advertising might be able to get to the $1 RPM range (Revenue per thousand impressions, including CPM, CPC, and CPA models). To get to $50m in revenue you would need 50 billion pageviews in a year, or just over 4 billion per month. According to Comscore, Bebo had the 10th most Pageviews in the US in Janurary 1007, with 3.4bn, so you would need to be bigger than that.

2. Be a site with demographic targeting (say a Latino portal, or a sports site (targeted at men) or a social network targeted at baby boomers). Although in TV and in magazines, demographic targeting can generate double digit CPMs, online at scale, RPMs tend to be in the low single digit range. Lets assume a $5 RPM. To get to $50m in revenue you would need 10 billion pageviews in a year, or just over 800 million per month. According to Comscore, Microsoft had the 22nd most Pageviews in the US in January 2007, with 792 million, so you would need to be bigger than that. [Microsoft isn’t a demographically targeted site - i just use it as a comparison point for overall traffic size.]

3. Be a site with endemic advertising opportunities (say a site about movies that movie studios will want to advertise on, or a site about cars that auto manufacturers will want to advertise on, or a site about travel that hotels and airlines and online travel agencies will want to advertise on). If you have a highly targeted audience that is interested in buying a specific product, you can command RPM’s well into the double digits. Lets assume a $20 RPM. To get to $50m in revenue you would need 2.5 billion pageviews in a year, or just over 200 million per month. According to Comscore, Adelphia.com had the 125th most Pageviews in the US in January 2007, with 198 million, so you would need to be bigger than that. [Adelphia isn’t an endemically targeted site - i just use it as a comparison point for overall traffic size.]

Admittedly, all these Comscore #s are US only, and all businesses will have international traffic as well, but the principle still holds.

Which do you think is easiest?

UPDATE: If you liked this post you will likely like my prior post on why new forms of advertising are hard

UPDATE II: To all new visitors, if you like what you read, subscribe to the Lightspeed Venture Partners blog RSS feed. Its at the bottom of the Right Hand Side column. We post 2-3 times per week on topics including consumer internet, web 2.0, lead gen, ecommerce, startups and venture capital.

UPDATE III: I’ve posted more on the difficulties in building a media business to $50m in revenues here.

Talicious – gives talented people an opportunity to showcase their talents

Talent is like a floodlight which makes things clearer only when you hold it in the right direction. Proper exposure and publicity turns a talent into a star. Only you need the exact channel that would share your talent and communicate it in an interesting way with the world. So start looking out for an agent. No. Just click onto talicious.com and find a place to showcase your talent and skills. A talent website born out of the idea to give talented people an opportunity to showcase their talents and get discovered by the right person, talicious.com is the right place to be.

So now on can upload their profile as well as for their friends and family members and scouts can find them. These profiles are uploaded categorically based on the field the talent is. Any person who is talented can upload a media file like an audio scratch, video scratch, picture album, or word document that would display his/her talent in the particular group or category. Agents or scouts can perform a search and then find the required talent in that particular group or category.

The talents are viewed and then rated by the users. The ranks go up according to the ratings. So whenever anyone looks up for you, they know whether the person is good or not based on the performance as well as the numbers of ratings and rankings they have got. Here they only vouch to keep original talents from people who would like have an outlet. The rating system also makes it easier for people to know which a better one is through ranking which keeps gong up and down like music charts.

It is very seldom that you get a chance to show how capable you are to the world without someone backing you. Lobbying is at its peak when it comes to entertainment industry. Talicious comes across as a source that will not only help you lobby your own talent and flair but also help you showcase it in front of the world.

The categories at talicious.com consist of art, dance design, fashion, literature, modeling, music, photography, screen media, sports and tuning. These categories are further subdivided into groups which go into details of every category. To tell you something frankly and upfront, it is a very smart way to promote your talent and let the world know how capable you are.

Sport and the Human Body

Sport and the Human Body

By Nicholas MacGowan von Holstein 

IntroductionThe benefits of sport are well document. A fit and healthy nation is encouraged by the state and significantly reduces the financial burden on the NHS[1]. Sport is also part of British heritage, and one that
Britain can be proud of. Whether
Britain actually invented any sport discipline in its own right is open to debate. There is evidence of football being played as part of rituals across the globe for over thousands of years[2] and indeed boxing has been traced back to
Ethiopia. Similarly, Polo was introduced to the ‘Western’ world by the 10^th English Husaren regiments of the British army, but it was first played in
Persia. However, there can be no argument that
Britain played a significant role in shaping the modern sports of today, and indeed the sports governing bodies that now regulate them.[3]  

It is therefore paramount that we protect the essence of sports, unless they are in themselves extremely unreasonable, even if this comes at a cost to the bodily security of its participants. Equally, participants’ bodily security should be protected from culpable invasion in as much as this is possible without interfering with the essence of the sport. Furthermore, it must be recognised that in certain contexts protecting bodily security indecently protects the essence of sports and vice versa.  

DefinitionsFor the purpose of this coursework, the ‘essence of sport’ will be regarded as the actual rules and regulations that shape and go to the heart of a particular sport. They are the rules of play, and impact directly on the participant undertaking that sport. Examples of these rules include the ‘off-side’ rule in football or the CTPE[4] rule in rugby. Furthermore, bodily security will be concerned with the protection of flesh, limbs and bones of a sports participant.  

Protecting the essence of sports rather then bodily security To state that we as a society should concentrate to ‘protect the essence of sports…rather than the bodily security of its participants’ is undoubtedly controversial and some might argue that the law of the land should not stop at the touchline when it comes to protecting bodily security[5], even in the name of sport. Edward Grayson argues this very point[6] and states that acts of violence[7] committed in the name of sport should be dealt with in the same manner as acts of violence in every day life.  

The truth is, however, that it has long been recognised that sport holds a special place in the law. This is confirmed by the lack of prosecutions of ‘on field violence’ cases and by the ruling in R v Brown[8]. Even though Brown[9] is not a sport related case, it confirmed the general view that sport has a special place in English law. When the House of Lords upheld the decision[10] of the Court of Appeal it also stated that for public policy reasons, injuries which were inflicted during the course of sporting activities would normally fall outside the ambit of unlawful violence.  

David McArdle[11]:  

This favourable treatment of sports violence has arisen because law sees sport as ‘special’ and thus meritorious of special treatment. The deliberations of the House of Lords in Brown reflect this: injuries inflicted in private during homosexual sadomasochistic encounters are unlawful and the victim’s consent affords no defence, but for injuries of a greater severity inflicted in public during sporting encounters, the defence of consent is usually accepted.  

The reason why sport has a special place in law has been touched upon in the introduction; namely that sport has positive effects on society and thus it must be encouraged. If sport would not be allowed a special autonym, it would be impossible to perform some of the most popular sports in
England such as football and rugby.  

This is even though, under English law, every person’s body is inviolate. Any touching of another person, however slight, may amount to battery, notwithstanding allowance made in criminal law for normal contacts inherent to everyday life[12].  

However, unlike the criminal law, tort does not distinguish between different degrees of injuries. It totally prohibits the first and lowest degree of non-consensual touching.[13]Thus, in theory, every participant playing a full game of football or rugby, for example, would at some point in the game commit the act of battery.[14] However, there is an implied term which means that participants in sport will, by taking part, consent to injuries which fall within the culture of the sport, and thus cases involving claims for battery are very rare[15]. 

Barwick CJ: 

By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime[16] 

In R v Coney[17], Hawkins J held that: 

It may be that consent can in all cases be given so as to operate as a bar to a civil action; upon the ground that no man can claim damages for an act to which he himself was an assenting part.  

It is impossible to have a concrete rule of when consent by a particular player stops. By taking part in a particular game consent is implied. The level at which the game is played (i.e. amateur / professional) as well as experience and age are all considerations taking into account by the courts. By doing so, the courts will get a clearer picture of what level of injury or violence is acceptable within those circumstances or within the ‘playing culture’ of a game.   

The fact that participants give their implied consent to some forms of violence in sport, and the fact that the state encourages sport as developing a healthy nation and positive values,[18]goes some way to show that the protection of the essence of sports often comes before the protection of bodily security.  

The case of Elliott v Saunders and Liverpool Football Club[19] and
Caldwell v Maguire and Fitzgerald[20] support this view. In both cases the injury sustained by the plaintiff were sever,[21] yet on both accounts the defendants were acquitted. The actions of the defendant’s were within the acceptable parameter of the sport, that is to say, the defendants duty of care did not fall so low as to say that they could not reasonably be held to be reckless. As Tuckey LJ said in
Caldwell, “Accidents and the risk of injury, sometimes catastrophic, both to horses and riders, are an inevitable concomitant of every horse race. All National Hunt jockeys know the risks…[22] 

Therefore it can be argued that as long as a player is playing the sport in a manner that is accepted to other players, then liability would not follow unless it is in the public interest for it to do so.[23]That is not to say that there have been no cases where courts have felt that they ought to intervene in cases of negligence in sport[24].  

Thus, it is established that the protection of the essence of sport often takes precedence over the protection of its participants[25].   

However, if the courts are endeavouring to protect the essence of sport, it is implied that sports governing bodies (SGB) are implementing rules that will not only protect the bodily security of the participants, but also protect them from culpable invasion.  

Generally speaking, SGB have realised their autonomy in deciding on rules for their various sports and have tried to make their sports safer without affecting the essence of their sport. Some examples have already been mentioned, but some major changes are listed below.  

• Cricket: limiting the number of bouncers in an over to protect the batsman.[26].
• Football: outlawing the tackle from behind from the 1998 World Cup.
• Boxing: introducing ‘weigh-ins’ 24 hours prior to a boxing bout in order to stop boxers de-hydrating themselves immediately before a match in order to make their weight category[27].
• Rugby: introducing the crouch-touch-pause-engage phased sequence (CTPE) for colts matches to protect the player’s spine and neck.

 

Playing Culture However, a question mark remains whether some SGB are doing enough to outlaw certain cultural habits within their sport. One such example is punching in both ice hockey and in rugby. It cannot be justified that the trespass to a person due to an act that is outside the essence of a sport is to be allowed. Clearly, the SGB responsible for ice hockey and rugby are turning a blind eye to certain aspects of what is known as the ‘playing culture’ of their sports.   

Mark James defines ‘playing culture’ as: 

The playing culture of a sport is the way that it is accepted as being and expected to be played by those who are intimately involved with the particular sport. It is not limited to the rules of the game but would include codes of conduct, tactics and commonly occurring incidents of foul play[28]. 

Thus, if there are different opinions, the question is where does one draw the line in regards to what is acceptable as being part of the ‘playing culture’, and what is sheer thuggery. Evidently, most people would accept an occasional late tackle; even it had some element of disregard to an opponent[29]. Nonetheless, punches thrown which are so late as to be regarded as away from play, or included repetitive punches administered to the victim[30], cannot be excused as ‘part of the game’. Likewise, the same goes for punches that are so sever that the perpetrator ought to have known that serious injury would result.[31]   

Two ice hockey cases in
Canada give us some indication as to how Canadian courts judge where the level of consent stops and potential liability to the perpetrator starts.  

In R v Cey[32], during a junior match, the victims face was pushed into the boards by the defendants stick, causing injury to his mouth and nose as well as whiplash and concussion. It was held that consent could be extended not only to contacts and resultant injuries that are permitted by the rules of the game but also to contacts and resultant injuries arising from breaches of the rules that fall within the accepted standards by which the game is played. Furthermore, it was held by the majority, that consent of the victim should be implied and determined objectively[33]. 

The conditions under which the game in question is played, the nature of the act which forms the subject-matter of the charge, the extent of the force employed, the degree of risk of injury, and the probabilities of serious harm are, of course, all matters of fact to be determined with reference to the whole of the circumstances. In large part, they form the ingredients which ought to be looked to in determining whether in all of the circumstances the ambit of the consent at issue in any given case was exceeded[34].  

The second case in question, R v Ciccarelli[35] was a National Hockey league match. The defendant hit his victim with his stick three times on the head, following an accidental body check by the victim on the defendant.  

The court developed and extended the scoop of implied consent that was set out in R v Cay to include: 

a)      The nature of the game played; whether armature or professional, league and so on;b)      Nature of the particular act or acts and their surrounding circumstances;c)      The degree of force employedd)      The degree of risk of injury; ande)      The state of mind of the accused.[36] 

Even though Ciccarelli did not cause his victim any serious injury, the potential to do so by such an act was deemed to be outside the playing culture and thus liability was imposed.  

Contrary to the Lord Advocate’s instructions to the Scottish Chief Constables in 1996,[37] it cannot be argued that only violence that are ‘well beyond’ what is considered normal play should be investigated. That raises problems, as in the current climate, punching in ice hockey and rugby are outlawed by the SGB (i.e. the player will receive a time penalty) but are treated by the SGB so lightly as to imply that they are part of the sport, or in other words, considered part of normal play. Clearly, when SGB are not trying hard enough to rid their sport of acts of violence such as punching, then the courts should intervene on their behalf. The law has a duty to rid sports of such acts and protect the participants.  

Freedom of action v paternalismThe question then arises, how far should we go to protect sport participants, i.e. ‘freedom of action v paternalism’. In western democracies, there is clearly a leaning towards liberalism; we as human beings have the autonomy to decide what happens to our bodies.  Conversely, the imposition of a criminal sanction represents the most sever infringement of a person’s liberty, and as such, should be available only where there is a clear social justification.[38] Thus, one could argue that if a person decided to take up a particular, or potentially, dangerous sport, the law should not intervene in him doing so. This is clearly accepted in sports such as mountaineering, climbing, and extreme scuba diving, yet the debate about boxing still continues.[39] What will antagonise professional boxing supporters is the fact that mountaineering, for example, killed more people between 1969 and 1980, in
Britain[40], then boxing did[41]. Furthermore, horse trials also saw more deaths in 1999 then boxing, with 5 people being killed.[42] Yet, there is no debate about either mountaineering or horse trials.   

The difference between the above mentioned sports and that of boxing, and indeed other combat sports, is that other dangerous or extreme sports still promote the essence of health, well being and good social virtues of team work, fair play and leadership. No doubt supporters of boxing would claim that boxing also promotes positive virtues such as self-discipline and a strong body and mind. However, when one analysis that the aim of boxing is to hit one’s opponent so hard in order for his brain to shake with such a force as to cause a black, or ‘knock’ out, any health argument would seem to be fundamentally flawed.[43] Thus, where most other sports promote a healthy body, the essence of boxing causes the exact opposite. Furthermore, deaths that result in mountaineering are not the result of the actions of an opponent. They are tragic accidents in a mountaineer’s quest to conquer the summit of a mountain.    

There is also a social stigma attached to the sports mentioned. Sports such as solo yachting, mountaineering and scuba diving require substantial sums of money and therefore are often carried out by people from a middle class background.[44] Thus, it is assumed that these activities are planned, well thought out and the participant’s have made an educated assessment of the risks involved and have weight them up against the benefits.  Boxing, however, is mainly seen as a sport for inner city, lower class youths,[45] with an educational knowledge that would not necessarily give them the ability to assess the long term risks involved, or indeed, are told of all the risks involved. Boxing however, splits people’s opinions as it is often argued that it is merely glorified violence in the name of sport[46] and for the financial benefit of the promoters.  

Boxing With boxing splitting society’s views, it will be worth to take a closer look at the sport.During a boxing bout, the contestants receive a variable number of blows, with the lightest a mere flick of a glove and the heaviest may be as much as half a ton. As the inner surface of a muscular young male’s skull is not smooth and has sharp inward projections it will result in the tearing of the thin superficial veins and thus surface damage to the brain will occur as the brain collides with the skull and its sharp inward projections. This will give rise to acute subdural haematoma that is responsible for serious cerebral compression and death that occasionally follows the boxing match[47].  

This was supported by Dr Helen Grant, who is an expert on diseases of the nervous system, when she examined the dead boxer Steve Watt. Dr Grant found that Watt died of acute bleeding from a severed vein that led to rapid accumulation of blood squashing the brain stem down against the base of the skull. She concluded that even before the fight, Watt was close to reaching punch-drunk syndrome[48].  

Clearly the evidence from the British Medical Association and from Dr Grant illustrate that the damaged caused to a boxer cannot be justified by arguing that it encourages a healthy, well balanced and disciplined human being, as Dr Adrian Whitson[49]once stated. Furthermore, there are less dangerous sports which promote the same values.[50] Consequently, the debate continues of how SGB should intervene to make the sport safer for its participants whilst still protecting the essence of the sport. The debate has mainly focused on three issues; thickening the cloves, introducing headgear into professional boxing and shorting the number of rounds. However, more medical evidence is needed to determine that these measures would actually reduce long term injuries[51].  

The debate should then turn to the question whether boxing should be outlawed and for what reason? Is it to actually protect the participants from severe health damage or to protect others from the bad examples that boxing sets?  

If the argument is that we should protect others (and especially minors which might try and copy what they see without understanding the mechanics of their actions) from seeing the images created in a boxing bout, then clearly the objectives would be met by banning the sport. This would have the effect however, of driving the sport underground. Thus, participants would probably suffer more and severe injuries due to the inadequate medical facilities now available to them. However, as the British Medical Association’s argument for banning the sport is reasoned on the damage to the boxer,[52] banning the sport would be counter productive, if not disastrous to the participants.  

Therefore, the answer is to make the sport safer for it s participants. The Government has declined the opportunity of reviewing the legality of boxing.[53] Whether this is in contradiction with outlawing sports such as ‘Ultimate fighting’ is a debate for the medical profession[54]. There is evidence that such sports are indeed safer then boxing,[55] yet they are not being made legal. This could be due to our moral rights and wrongs based on Victorian ideals.  

However, as long as boxing is regarded as legal, it will be the task of the medical profession employed by the SGB to safeguard boxers whiles not interfering with the essence of the sport. It might not necessarily be the duty of the law to protect participants of boxing from resulting injuries, but that of the SGB’s medical advisors. However, it might prove an impossible task to safeguard a boxer’s health when the very nature of boxing is to cause as much injury to your opponent as possible. The only answer might be to try and educate boxers of the consequences of stepping into a ring and enforcing the SBG to be pro-active in their quest to safeguard their members.   

Safeguarding bodily security can incidentally protect the essence of a sport, and vice versa. Safeguarding bodily security however, can in some sports incidentally protect the essence of a sport, and vice versa. Introducing or maintaining safety measures that will allow a participant to carry out particular skills that are required in a sport, will therefore protect the essence of that sport. A batsman that is protected from numerous bouncers in an over, will not only allow him to perform the skills required to play the sport, but will essentially allow the game to be played in the first place. 

The same could be said for banning drugs in sport. The World Anti Doping Agency (WADA) states[56] that the taking of drugs gives athletes an unfair advantage, could be potentially damaging to the athletes health and damages the integrity, image, value and spirit of the sport. Some would argue that there are fundamental flaws in those arguments and question the strict liability imposed on athletes.[57]  However, there can be no refuting that by banning drugs it protects the very values of events such as the Olympic Games.[58]  Allowing drugs in the Olympics would damage the very core values of the games and thus damage the essence of the sport. Furthermore, a sport riddled with damaged athletes due to drug taking, would not only reduce the level and inconsistency of performances, but also the integrity of the sport. The fact that there is still too much inconsistency in regards to drug testing does not justify allowing drugs into sport as a matter of principle. Again, the emphasis should be on the medical profession to prove the answers to questions raised by public lawyers such as Simon Boyes[59], but when it comes to the essence of a particular sport, the ‘law should stop at the touchline’, even when this comes at the cost of the bodily security of the participant.  

Conclusion When it comes to protecting bodily security, it should be done without interfering with the essence of sport. Participants have a responsibility to make themselves aware of the risks involved inherent in a particular sport.  

Only in the most extreme cases should the very essence of a sport be interfered with. This might be to protect the live of its participant’s or when SGB fail to protect participants from violence which is outside the essence of a sport and thus a participant could not have consented to. Thus, it is accepted that SGB have a responsibility to be pro-active in seeking medical advancements to protect participant’s health and safety. This has clearly been the case in football with measures such as the ‘tackle form behind’ and the banning of metal studs, and in Formula 1 numerous safety measures are being implemented every year in order to make the sport safer. However, this has not always been the case and Watson[60] is a clear reminder that medical advancements as well as preventive safety rules need to be constantly up-dated and reviewed.  

Furthermore, it must be the responsibility of SGB to adhere and introduce rules that will allow participants to play the game and will protect their bodies from culpable invasion.  By allowing participants to execute various skills without the fear of culpable invasion, it protects the very essence of a sport.  

Clearly the medical profession has a great role to play in safeguarding the health and safety of sport participants. It is only when the medical profession fail in doing so or when the very nature of a sport is such that it places participants in great danger, should the law review the essence of a sport or even the very existence of a sport.   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography  

Books: 

• Brasch, R, How did sports begin? (Sydney: Angus and Robinson, 1986)
• Gardiner, S, Sports Law, (Cavendish publishing, 2001)
• Gunn & Ormerod, Despite the Law: Prize-fighting and Professional boxing, Law and Sport in Contemporary Society (Frank Cass publishing)
• The British Medical Association, The Boxing debate (The Chameleon Press Ltd, 1993)

 

Web material: 

• The Olympic philosophy -http://multimedia.olympic.org/pdf/en_report_122.pdf
• The Hurlingham Polo Association – www.hpa-polo.co.uk
• Rule on doping – www.fina.org/dopingrules
• www.wada-ama.org

 

Journals  

• David McArdle, A few card cases? Sport, Sadomasochism and the public policy in the English courts, (Canadian Journal of Law & Society, 1995)
• Elliott v Saunders: drama in court 14, (Sport and the Law journal 1, 2 (2), 1994)
• Grayson and Bond, Making foul play a crime, (Solicitors Journal, 1993)
• James, M, and Gardiner, S, Touchline and Guidelines: The Lords Advocate’s Response to sports field violence (Criminal Law Review, 1997)
• Kerr, T, Is Sports Special?, (Sport and the Law Journal, 2001) Vol.9, pp78-80
• Miller,S, Criminal law and sport in
  Scotland: the Lord Advocate’s Instructions to the Chief Constables, (Crim LR 38, 1997)
• Neil Parpworth, Boxing and Price fighting; The Indistinguishable Distinguished? (Sport and the Law Journal)
• Neil Parpworth, Boxing and Prize fighting: The indistinguishable distinguished? (Sport and the Law Journal, 1994) Volume 2
• Parpworth, N, Boxing and Prize Fighting: The Indistinguishable distinguished? (Sport and the Law Journal, 1994) Vol. 2 pp5
• Schmid-Olsen, Jensen and Mortensen, Amateur Boxing in
  Denmark (American Journal of Sports Medicine 18, 1990)
• Sheard, K, Aspects of boxing in the western ‘civilising process (International Review for the Sociology of Sport, 34, 1997)
• Sutcliffe, P, The noble art? (Total Sport, February 1996)

 

Newspapers 

• Tom Usher, Awareness and application of rules is paramount, (The Guardian, 20/04/1996)
• Bond, C, Tackling Violence as a legal issue (The Sunday Times, 1994)
• Olympic prospect’s fatal fall ruled as accident, 25/08/2000, The Herald (Glasgow)
• Gorman, E, MacArthur back on record pace, (The Sunday Times, 15/12/04)
• Marcel Berlins, The new ball in your court, (The Guardian, 02/04/1996)

 

 

Lecture hand out  

• Simon Boyes, Law and the Regulation of Drugs and Doping, Lecture hand out, Seminar 9, Sport and the Human Body, Nottingham Law School, 02/12/2004

 

Other 

• Commons Hansard, 2 March 1995, col.246
• Parliamentary debate on a Private Members bill in 1991

 

 

---

[1] www.kentandmedway.nhs.uk/

[2] Hutchinson, R, Empire Games: The British invention of Twentieth Century sport, (Mainstream, 1996)

[3] For example, the worlds governing body for polo is the Hurlingham Polo Association in
England: www.hpa-polo.co.uk

[4] Crouch-touch-pause-engage phased sequence

[5] Grayson and Bond, Making foul play a crime, (Solicitors Journal, 1993)

[6] Grayson, E, Sport and the Law, today and why and how (Legal Executive, 1997) pp38-40

[7] violence such as punching rather then violence broad about whilst adhering to the essence of sport

[8] 1993, 2 All E.R. 75, A.C

[9] Brown concerned the appeals against conviction of a group of sadomasochistic homosexuals who, over a ten-year period, had willingly participated in the commission of acts of violence against one another for the sexual pleasure which those individuals gained from the giving and receiving of pain.

[10] It was asked: Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under the 1861 Act, ss20,47? The House of Lord said it did not by a majority of three to two.

[11] David McArdle, A few card cases? Sport, Sadomasochism and the public policy in the English courts, (Canadian Journal of Law & Society, 1995)

[12] Collins v Willcock, [1984], 1 WLR 1172

[13] Gardiner, S, Sports Law, (Cavendish publishing,  2001),Chapter 16, page 694, 

[14] For more information on
Battery please see Sports Law, Ibis FT 13Chapter 16, page 694.

[15] Even though cases are rare in this country, their have been a number of cases in Australia such as McNamara v
Duncan [1971] 26 ALR 584

[16] Rootes v
Shelton, [1968] ALR 33.

[17] [1882] 8 QBD 534

[18] Brasch, R, How did sports begin? (Sydney: Angus and Robinson, 1986)

[19] Elliott v Saunders: drama in court 14, (Sport and the Law journal 1, 2 (2), 1994)

[20] [2001] EWCA Civ 1052

[21] In both cases the claimant had to retire from his sport as a result of the injuries sustained.

[22] Caldwell v Maguire and Fitzgerald, [2001] EWCA Civ 1054,

[23] Mark James, Sports Law, op. cit. FT13 Chapter 16.

[24] examples include Leatherland v Edwards [1999] unreported(HC) and Pearson v Lightning [1998] unreported (CA)

[25] This is not to be confused with the larger quantity of sports related cases involving violence which is outside the essence of the sport, e.g. a calculated punch thrown away from the play of the game, rather then legitimate tackle with no reckless disregard to the health and safety of the recipient.

[26] Tom Usher, Awareness and application of rules is paramount, (The Guardian, 20/04/1996)

[27] Sutcliffe, P, The noble art? (Total Sport, February 1996), pp92-94

[28] Gardiner, Sports Law, op. cit. FT13 Chapter 15, page 668.

[29] Marcel Berlins, The new ball in your court, (The Guardian, 02/04/1996)

[30] R v Ciccarelli [1989] 54 CCC (3d) 121

[31] McNamara v Duncan [1971] 26 ALR 584

[32] op. cit.FT 29

[33] Mark James, Sports Law, op. cit. FT 13, Chapter 16.

[34] Ibid, p491

[35] [1989] 54 CCC (3d) 121

[36] per Corbett DCJ at p 126

[37] Miller,S, Criminal law and sport in
Scotland: the Lord Advocate’s Instructions to the Chief Constables, (Crim LR 38, 1997)

[38] Gunn & Ormerod, Despite the Law: Prize-fighting and Professional boxing, Law and Sport in Contemporary Society (Frank Cass publishing).

[39] Neil Parpworth, Boxing and Prize fighting: The indistinguishable distinguished? (Sport and the Law Journal, 1994) Volume 2

[40] There were 2 deaths in boxing, and 93 in mountaineering.

[41] Parliamentary debate on a Private Members bill in 1991.

[42] Olympic prospect’s fatal fall ruled as accident, 25/08/2000, The Herald (Glasgow)

[43] Sutcliffe, P, The noble art? (Total Sport, February 1996), pp92-94

[44] Gorman, E, MacArthur back on record pace, (The Sunday Times, 15/12/04)

[45] Sheard, K, Aspects of boxing in the western ‘civilising process (International Review for the Sociology of Sport, 34, 1997)

[46] Neil Parpworth, Boxing and Price fighting; The Indistinguishable Distinguished? Op. cit. FT 42

[47] The British Medical Association, The Boxing debate (The Chameleon Press Ltd, 1993)

[48] Sutcliffe, P, The noble art? Op. cit. FT 42, pp92-94.

[49] Dr Whiteson was chief medical officer for the former British Boxing Board of Control and chair of the World Boxing Council’s medical commission.

[50] Gunn and Ormerod, Prize-fighting and Professional Boxing (Law and Sport in Contemporary Society,
Greenfield and Osborn, Frank Cass publishing, 2000)

[51] Schmid-Olsen, Jensen and Mortensen, Amateur Boxing in
Denmark (American Journal of Sports Medicine 18, 1990)

[52] The Boxing debate, British Medical Association, 1993

[53] Commons Hansard, 2 March 1995, col.246

[54] i.e. more medical evidence is need to either state that Ultimate fighting creates more or less injuries then boxing does

[55] Sports Law,  Chapter 15 op. cit. FT 13

[56] http://www.wada-ama.org/docs/web/communications/publications/newsletter/dec_04.pdf

[57] Simon Boyes, Law and the Regulation of Drugs and Doping, Lecture hand out, Seminar 9, Sport and the Human Body, Nottingham Law School, 02/12/2004

[58] ‘Olympism is a philosophy of life, exalting and combing in a balance whole the quality of body, will and mind. Blending sport with culture and education, olympism seeks to create a way of life based on the joy of effort, the educational value of good example and respect for universal fundamental ethical principles’ Source: http://multimedia.olympic.org/pdf/en_report_122.pdf

[59] op. cit. FT 57

[60] Watson v BBBC, 2001, QB 1134.

European Sports Law & Policy

Introduction 

Even though it is well established under Art.81 E.C. that all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their objective or effect the prevention, restriction or distortion of competition within the common market are prohibited as incompatible with the common market[1]. Despite this, the ‘Union des Associations Europènnes de Football’s’ (UEFA) recently approved plans[2] to limit the number of foreign players a club can register for Champions league and UEFA cup competitions (UEFA competitions[3]). It will implement rules by 2006 that four out of the 25 players that a club is able to register, for UEFA competitions will have to be ‘home grown players’[4]. This quota would rise to eight home grown players for the 2008 / 09 season.

This inevitably raises the question whether it will satisfy the demands of European Community law.

UEFA’s rule changes

The rule changes that UEFA will be implementing are as follows:

• The number of players that teams will be able to register on the ‘A’ list[5] will stay at 25 players.
• From the 2006 / 2007 season two members of the playing squad will have to been trained by the club’s own academy and another two players will have to been trained by a fellow association member club.
• In the following two seasons, one additional place for a club trained and one additional place for an association trained player will be reserved on the ‘A’ list, so that by the 2008/2009 season, each club will have in its 25 man squad four club trained and four association trained players.

A club trained player is defined as a player who has been registered for a minimum of three seasons with the club between the age of 15 and 21, whereas an association trained player is a player who has been registered for at least three seasons by the club or by other clubs affiliated to the same association of the said club between the age of 15 and 21[6].

A short History of the relationship between sport and the EU.  

The Rome Treaty of 1957 established what is now known as the European Community. The Treaty[7] and much of EC law is concerned with the elimination of obstacles to the free movement of goods, services, persons and capital. Sport seemed to have escaped the scope of the EC for a number of years and there are relatively few cases which are sports related. However, in the 1990’s it became apparent that many aspects of Community law (and in particular competition law) were in need of modernisation[8], and it is no surprise that the same period saw the infamous Bosman[9] case.  Before looking at case law pre and post Bosman, it will be important to set the scene in which they where played out. Thus, the Lariv report and the Pack report will be an important starting point.

The reports  

There have been a number of reports into sport in Europe[10], but the two important reports published by the European Union (EU) that are of interest have become know as the Lariv report [11] and the Pack report[12]. Not only are they interesting because the EU makes several comments on the regulation of sport and in how far sports rules are contra to EU law, but also because one was produced pre-Bosman (The Lariv report, 1994) and one post-Bosman (The Pack report, 1997). Thus, it will give us a good indication of whether the EU’s policy to sport has changed, and if so, how much.

The Lariv report[13] was a result of the resolution by Mrs Ewing on the protection of popular sporting traditions in
Europe. The report was charged with looking at; inter alia, the reappraisal of the EC’s policy towards sport.

Even though neither the Treaty of Rome nor the Maastricht Treaty mentioned sport, the EC became increasingly concerned by the refusal of sports governing bodies (SGB) to change their rules so to come in line with the EEC treaty. As far back as 1989 it was decided by Mr Janssen van Raay[14] that clubs and SGB are to be considered as undertakings and their restrictions on foreign players was contra to the EEC treaty. It becomes clear from the Lariv report that the lack of respect shown by clubs and SGB, especially to Art. 39, 81 and 82, are major concerns to the EC. The tone of the report is extremely strong with little indication that compromises are to be negotiated. In regards to bringing sport in line with the Treaty it states that [t]he rule of law must prevail not only in the stands but also on the pitch. Sports clubs and national and international sports associations continue to show no respect for the EEC Treaty in general and for Articles [39], [81] and [82] in particular. …These restrictions are often, if not always, blatant and unacceptable[15].

In regards to the transfer system it states that [t]hese restrictions are so obviously in conflict with the operation of the European Communities competition system that the adverse consequences they have must be eliminated immediately[16]. Furthermore, it states that [t]hese obstacles to the freedom of movement [transfer fees] to join sports clubs and federations are incompatible with the Treaty of
Rome and must be systematically removed[17].  

It is clear then that the stance towards the abuse of sports federations and clubs towards the Treaty of Rome is one that will not be tolerated by the EC and that it will do everything in its power to bring them in line with other industries. It must be noted that this report was written in an environment where the construction of a Single Market[18] was seen as paramount and therefore the ECJ’s jurisprudence paid less attention to the socio-cultural significance of sport[19].

However, following the Bosman case, this approach somewhat softened. The Pack report has a much softer tone and in several paragraphs acknowledges the positive influence of sport on culture, society and education. It even goes as far as saying that ‘…the European Union must recognize the specific nature of sport and the autonomy of the sports movement’[20]. It is also much more open for discussions between the various parties and states the need for the EC and the sport community to work together. Furthermore, it suggests ‘to draw up, after consulting the entire sports movement, a Green Paper with a view to the elaboration of a full-scale action plan in the field of sport’[21].

Interestingly and in support of the UEFA proposed rule changes, it also re-emphasise the importance of clubs to train young players and states that the EC should give active support in this field.

However, the most powerful acknowledgement of the autonym of sport, in as far as sporting matters and regulations are concerned (rather then activities which are of a purely economic nature) is made in part B; Explanatory Statement. In part B the rapporteur talks about the effects of the Bosman case and states that ‘it showed, unintentionally, that sports was not merely an economic activity and that its specific nature and, within the aforementioned limits, its independence must be duly acknowledged’.

The softening of attitude by the EC could be due to the fact that the EC, in retrospect, felt that the effect of the Bosman case might have had a too far reaching effect and did not take into account the very nature of sports, and indeed football. Furthermore, there is evidence[22] of more positive communication between the various parties, mainly the EC and UEFA and / or FIFA. 

Case Law

The question then arises whether case law has reflected the softening of the EC post Bosman and the Pack report.  When looking at early case law, the two most important cases are those of Walrave and Koch v Association Union Cycliste Internationale[23] and Donà v Montero[24]. Walrave and Koch challenged a rule change by their SGB that for the forthcoming paced cycling ‘World Championship’, pacemakers had to be the same nationality as the cyclist. They sought to challenge the ‘Union Cycliste Internationale’ (UCI) rule change on the grounds of Art.5, 39 and 48. The ECJ held, inter alia, that sports falls within the scoop of EC law only in as far as it constitutes an economic activity[25].  It is clear, and similar to the Lariv report, the ECJ took a strict economic biased approach rather then considering the socio –cultural benefits of sport. It did, however, acknowledge sports ‘special nature’ in as far as national teams are concerned and their being no economic interest[26]. Furthermore, the ECJ made it clear that SGB fall within the scope of the Treaty by ensuring that Art. 39 had direct (and vertical) affect. These findings, when referred back to the domestic court, but where never given the chance to be executed as Walrave and Koch did not pursue their case. It is widely believe that this was due to a threat by the UCI to remove paced cycling form the World Championship[27]. 

In Donà v Mantero, there is again an appreciation for the ‘special nature’ of sport. It is believed that this case was somewhat contrived for the sole purpose of opening up Italian football to foreign players[28], and concerned a claim by an agent for the cost of an advertisement for foreign players in a
Belgium sports magazine. To briefly summarise, the domestic courts asked the ECJ whether restrictions on nationality in football matches may be justified. The Advocate General, Mr Trabucchi, felt that even the rules of sporting organisations run as an economic concern may be exempt from the application of non-discriminatory Treaty provisions. Thus, sport may be a business, but it may still also be simultaneously practised as an activity of purely sporting interest[29]. Even more interestingly for UEFA was the ruling by the ECJ when it stated that ‘rules…which limit the right to take part in football matches …solely to nationals of the State in question, are incompatible with Art. 12 and …Art.39 to 42 or 49 to 55 of the Treaty, unless such rules …exclude foreign players from participation in certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only[30].

Thus, in both cases it is made clear that insofar as sport constitutes an economic activity, it falls within the scope of application of Community law.  It is also clear that the courts, however, struggled with accommodating sport’s peculiarities within the orthodox framework of EC law[31]. Therefore, in Walrave and Koch, in order to allow the practice of discrimination against athletes based on their nationality when selecting national teams, the court concocted a category of practices which it described as of ‘purely sporting interest’ and having ‘nothing to do with economic activity’[32]. It therefore acknowledged that ‘sport is special’ and the EC Treaty would cause major problems to international selection procedures and their competitions if applied strictly. However, as will be seen later, Advocate General Lenz would not be quite so generous in Bosman.

It is clear then, that the ECJ was trying to set the boundaries for EU’s intervention in sport. However, the lack of enforcement from the Commission limited the scoop of the rulings in Walrave and Koch and in Dona[33]. However, Bosman was to readdress this issue, and this time, the Commission was more determined in enforcing the ruling[34].

It will be assumed that the facts of the Bosman case are known and thus their will be no great in-depth analysis of the case. It suffices to say, that Jean-Marc Bosman challenged the legality of the then transfer system. In particular, he questioned two aspects; the (none) release of players after the conclusion of their contracts and the limitations imposed on the number of foreign players that where eligible to participate in any given match (the so called 3+2 rule). Unlike Cooke v The Football Association[35] this was one case that FIFA / UEFA was not able to ignore. It is believed that the EC was waiting for an opportunity to finally assert their authority on football[36], and Bosman gave them their chance. The hard law interference from the EU primarily focused on the removal of the ‘3+2 rule’ and the release of players once there contract was finished. However, in regards to the ongoing investigation into the transfer system, the Commission gave football the option to either regulate or be regulated[37]. Thus, FIFA / UEFA had to bring the transfer system in line with the Treaty, albeit leaving the concept of transfer fees intact. The biggest change was the so called ‘Bosman free’; which simply means a player is able to negotiate a new contract with another club six months prior the expiry of his current one and then is able to leave for free at the end of his contract[38]. The other major change (interestingly for this paper) was the abolition of restrictions on foreign players (the 3+2 rule).

In regards to restricting the number of foreign players, it was held that it was contra to Art.39(2). The Commission also rejected the argument from UEFA and URBSFA[39] that they were non-economic sporting rules. One argument was that restricting the number of foreign players maintained a link between club and country.  However, it is argued that this reasoning should be rejected today as it was in Bosman.  If there is no link between club and the actual town it plays in, then UEFA cannot argue that it is legitimate to artificially create a nexus between club and country. There is evidence that if restrictions were implemented that were to limit a club to only signing players from its own region, that a much better nexus would be established between the supporters and the club / player[40]. However, as restrictions are not in place to guarantee a minimum amount of players to play for their local clubs, nationality restrictions cannot be justified on these grounds. In line with the above, UEFA has not argued this point this time around. However, one aspect that was rejected in Bosman which is being argued again today is the idea of creating players for the national team. In Bosman it was ruled that as there are no limitations set on Football Associations calling up players that play their club football in another country, this argument would not be accepted. However, the globalisation and indeed commercialisation of football might have swayed the Commission to now accept this as a legitimate argument. At the time of the Bosman case, there where still a high percentage of players signed to clubs that were eligible to play for the national team to which the club was affiliated.[41]. This is not the case today and this might be what has changed the Commissions mind.  The footballing world also argued that the restrictions placed on foreigners maintain a competitive balance between ‘rich’ and ‘poorer’ clubs. This was again rejected by the Commission as clubs can purchase the best nationals despite these restrictions[42].  However, this has been argued again today[43], and it seems that the Commission is more sympathetic to this argument. UEFA has put a positive ‘spin’ on this argument this time around, stating that a competitive balance needs to be encouraged as well as the incentives to train young local players[44]. However, the ‘footballing reality’ is that the rules changes will not have much affect on the clubs with the highest spending power. It could actually have the opposite effect, with clubs merely purchasing the best players at a younger age (even foreigners) and then training them long enough (i.e. from the age of 15 up-wards) so to make them eligible.  Thus, the reasoning might seem sound, but the ‘footballing’ reality will be quite different.

When looking at case law post-Bosman, the two cases that are important to us are Deliège v Ligue Francophone de Judo et Disciplines Associées ASBL[45] (hereafter Deliège), and Jyri Lehtonen & Castores
Canada Dry Namur-Braine v Fédération Royale Belge des Sociétés de Basketball ASBL (herafter Lehtonen)[46].

Lehtonen concerned a professional Finish basketball player who sought to move to a
Belgium club. However, transfer rules imposed by the Belgian Basketball Federation (BBF) did not permit him to participate in the remaining games of the season as he registered after the official transfer deadline. Lehtonen brought a case against the BBF arguing, inter alia, that the rules where contra to Art.39; freedom of movement. Even though the courts rejected the idea of self autonym on the SGB part, it did accept that there where sufficient sporting reasons to justify these restrictions. These where, inter alia, that rules would need to be in place to minimise distortional effects on the league and stop players competing in one league, and once that league has finished, offering their services to another league that might still be in progress.

Deliège also brought a case with ‘freedom of movement’ elements against her SGB. Deliège, who was at the time a fairly successful judokas, argued that her non-selection for her national team was contra to Art.39. As in the Lehtonen case, the SGB had to prove that their restrictions were of a sporting and not of an economic nature. This it did duly by arguing that it was a necessity, even pro-competitive, to restrict the number of athletes competing in a major competition from one national association otherwise the quantity of athletes would make it impossible to host the tournament.

It can be seen from the subsequent case law following Bosman, that the Commission has again set certain criteria’s for when they will intervene in the regulation of sport, and when they will give sport self-autonym.

Deliège is a good indicator of when this is the case. It is made clear in Deliège that rules which are of a sporting nature will be exempt from the scope of the ECJ, even if they have an adverse economic affect on certain participants. If the SGB can show that the rules are reasonable and justifiable (and no more then needed for the purpose[47]), in terms of preserving the sport, or it is for the greater good of the sport or indeed society[48], then they will be exempt. Furthermore, if the SGB can show that certain rules are there to promote solidarity in sport,  such as rewarding smaller football clubs for developing and training players, then again, they are likely to be exempt, in this case from Art.81(1)[49].

Treaty’s  

It is of interest to note that recent Treaty’s, such as the Treaty of Amsterdam and the Treaty of Nice[50], have acknowledged the special significance and nature of sport. However, this will again, only be of help to UEFA if their rule changes are deemed to be of a purely sporting reason and social-cultural benefits outweigh the economic effects they will have. 

Reasons given by UEFA 

Thus, it beggars the question, if one of the biggest changes FIFA / UEFA had to implement after Bosman was not to place any restrictions on the number of foreign players a club can field, as this is contra to Art. 39 and 81(1) of the Treaty, why is UEFA again introducing this very concept?

The reasons given by UEFA for introducing these rules can be split into two different headings; footballing and training reasons.

In terms of footballing reasons, it states that there is increasingly a link between spending power in the transfer market and success within its competitions, which they claim is anti-competitive. This in turn reduces the desire for clubs to play fewer locally train players. UEFA argues that by implementing the rules it will provide more incentive for clubs to train their own players and thus restore a competitive balance[51].   UEFA’s President, Lennart Johansson, has also stated that the current trend (of purchasing foreign players rather then developing home grown players) is dangerous for the development of football.

If young people in Bologna see three Yugoslavs sitting on the bench, and in addition all the players in the team are foreigners, that can have a negative effect on their will to dedicate themselves to football, when there are so many other alternatives for them.[52] 

UEFA has also stated that the rules would have positive effects on the various national teams as more home grown players would get the chance to develop within their clubs and have more ‘playing time’.

However, in order to have any chance of convince the EC that these rules should be exempt from the ‘normal’ application of EU laws, it will have to show deeper socio-cultural reasoning. Therefore, it is no wonder that the training reasons outweigh the footballing reasons given. 

When Johansson was recently interview by the BBC[53], he stated that the rules will mean that clubs will pay more attention to educational use, and to bring people up through the clubs youth structure. This has been echoed by his chief executive, Lars-Christer Olsson, who stated:

It is not so much the top clubs but it is those in the middle range who are importing cheap players instead of developing them. In Austria for example, even in the semi-professional leagues they are importing players from Slovakia, Hungary and
Nigeria[54]. 

Gianni Infantino, UEFA’s director of legal services, regards the proposal as ‘…a system whereby somebody with less money but a serious training programme has a better chance than today to compete at the top level. This project is not about quotas or foreigners or nationality or reversing Bosman[55]. 

It is also interesting to see UEFA mentioning several other reasons which closely correlate with possible challenges by the EC. This includes stating that these restrictions are not a restriction but a sporting rule (which would therefore not be contra to Article 48 and Art 82; abuse of a dominant position within the common market). UEFA also commissioned a study that showed that the current system is anti-competitive and the new rules would address this (evidence which would potentially clear them of a breach of Art. 81). UEFA have also reiterated the fact that they are a non-profit organisation and that money earned is re-invested into football and football development[56] (therefore not an economic undertaking as per Art. 2 of the EEC treaty). Thus, UEFA have been very quick in trying to show that these rule changes are of a purely sporting nature and thus have no economic elements.

Will the rule changes satisfy the demands of European Community law? 

The question is whether sport rules constitute ‘agreements’? The difficulty for the Commission and indeed the ECJ is in distinguishing between rules that are of a purely sporting nature (such as the off-side rule in football) and rules that have an economic or commercial nature or effect. The Commission will often examine the effect of the rule rather then the object in determining whether it is an agreement[57]. However, as seems likely, the Commission will deem these rule changes as of a sporting nature and will accept that the socio-cultural benefits out-weight the restrictions it will place of foreign players.   It seems likely that the Commission has meet with UEFA to discuss the rule changes and this would be in line with the common stance taken by the Commission. Due to the political and administrative pressure the Commission faces, its preferred route of policing is through informal channels. UEFA, like any other undertaking which seeks a negative clearance or exemption from Art.81, had to notify the Commission of its intentions so that informal discussions could take place. Once aspects that the Commission does not agree with are removed, a ‘comfort letter’ will be given to the undertaking stating that they are exempt from Art.81[58]. It should be noted that these ‘comfort letters’ hold no legal effect, but the cumulative impact of them in establishing de facto precedents is however considerable.[59]. However, the evidence suggests that the informal discussion route was chosen by UEFA and the Commission.

If the new rules changes are accepted as they are by the Commission, it will be a major move on from Bosman. However, subsequence case law has shown that certain rules or restrictions might be deemed acceptable should they actually benefit competition[60].  Thus, restrictions which will benefit competition within UEFA competitions (i.e. give smaller clubs a chance of success within UEFA competitions) might be deemed acceptable. However, it could be argued that this will only be truly successful if the rules are implemented into domestic leagues as well. For ‘smaller clubs’ to reach UEFA competitions in the first place, they have to be successful within the domestic leagues. Thus, it could be argued, in order for UEFA to meet its full objective, (greater competition) it has to implement its rules changes to domestic football also.

As the ECJ scored an own goal?  

It seems ironic that the ECJ forced FIFA / UEFA to change its transfers rules after Bosman for it not to have to minimise FIFA / UEFA’s self autonomy at regulating football. These rule changes have, however, allowed the biggest clubs to spend even more money on the best players by paying higher wages[61] and made the in-balance between ‘poorer’ and ‘richer clubs even greater. The Commission is now allowing UEFA to re-address this balance, but the feeling within football is that it has come too late[62]. The ECJ did not accept the truly ‘special and fragile’ nature of football at the time of the Bosman case, and now that it has, it is too late. The rich clubs will simply keep buying the best player, at an even younger age, and the ‘poorer clubs will be left behind.

By Nicholas MacGowan von Holstein, 30.12.2006

---

[1] Egger, A, Sports and Competition Law: A Never-ending Story, European Competition Law Review, 2002,

[2] BBCi, UEFA has approved a rule to raise the quota of homegrown players in squads competing in European competition, (www.bbc.co.uk/sport, April 2005)

[3] There are other UEFA competitions such as European Championships but for the easiness of this eassay, ‘UEFA competitions’ will refer to the Champions league and the UEFA Cup)

[4] A definition for ‘home grown players’ will be given later on in the paper.

[5] When a club qualifies for European competition it has to submit a list to UEFA of players that the club wants to be register to be eligible to play, this list is called the ‘A’ list.

[6] Chaplin, M, Homegrown player plans revealed, uefa.com, 03/02/2005

[7] Renumbered by the
Amsterdam Treaty

[8] Whish, R. Competition Law, (Lexis Nexis Butterworths, 2003) pp.45-48

[9] Union Royale Belge des Soéitiés de Football ASBL v Bosman [1995] ECR I-4921

[10] Such as: ‘Sport and the Community’ A1-53/84, ‘Woman in Sport’ A2-32/87, ‘Vandalism and violence in Sport’ A2-70/85 etc.

[11] Report of the Committee on Culture, Youth, Education and the Media on the European Community and Sport, 27 and 29 April 1994

[12] Report on the role of the European Union in the field of sport 28 May 1997

[13] Named after the Rapporteur Mrs J. Lariv

[14] Report by the Committee on legal affairs and Citizens’ Rights, A2-415/87, 1-3-1989

[15] Page two of the report under Introduction, second paragraph. 

[16] Page three, fifth paragraph. 

[17] Page five, fourth paragraph.

[18] I.e. the free movement of goods, labour, services and capital

[19] Parrish, R, Sports law and Policy in the European Union, (Manchester University Press, 2003) pp. 80

[20] A Motion for a Resolution, Section 3.

[21] A Motion for a Resolution, Section 5.

[22] One such example comes from the current UEFA President Lennart Johansson in which he states that they are in discussion with the EC. BBCi Sport, Johansson presses for import restrictions, www.news.bbc.co.uk, 25/10/2004

[23] [1974] ECR 1405

[24] [1976] ECR 1333

[25] See paragraph four of the judgment.

[26] See paragraph eight of the judgment

[27] Weatherill, S, Discrimination of the Grounds of Nationality in Sport, (Yearbook of European Law), 55(9): 55-92

[28] Blanpain, R, and Inston, R, The Bosman Case: The End of the Transfer System?, (Peeters and Sweet and Maxwell, 1996)

[29] Parrish, R, Sports law and Policy in the European Union, (Manchester University Press, 2003) pp 88

[30] Parrish, R, Sports law and Policy in the European Union, (Manchester University Press, 2003) page 88-89. 

[31] Weatherill, S. Fair Play Please! Recent Developments in the Application of EC Law to Sport, (Common Market Law Review, 2003) 40, pp.51-93

[32] Case 36/7 [1974] ECR 1405 para.8

[33] Parrish, R. Sports law and policy in the European Union, (Manchester University Press, 2003), pp 80.

[34] Parrish, R. Sports law and policy in the European Union, (Manchester University Press, 2003), pp 80.

[35] [1972] The Times, 24 March

[36] Boyes, S, Law, Regulation and the ‘Europeanization’ of a Global Game, (Lecture hand out) pp eight, second paragraph.

[37] Boyes, S, Law, Regulation and the ‘Europeanization’ of a Global Game, (Lecture hand out) pp nine, first paragraph.

[38] There are now complicated exceptions to this, such as, if the player moved between two different associations (i.e. an international transfer) and is under 23, the club that trained the player is entitled to a training and development fee, as calculated by a FIFA tribunal. This will be a one-off payment. If he moves between clubs that are affiliated with the English F.A. this payment is on sliding scale, i.e. their will be additional payments if the player plays a number of times for the first team, if the clubs is successful, or if the player becomes an international.

[39] Union Royale Belge des Soéitiés de Football ASBL

[40] The Spanish team ‘Athletic Bilbao’ have self imposed restrictions only to sign players from its Basque region. As reported in the April edition of the official FIFA magazine, this has created strong link between the club and the supporters. However, even though they have produced some highly talented players over the years, it has not been very successful in terms of wining trophies.  Irnberger, H. No foreign lions, (FIFA magazine, April 2005), No4. pp36-39.

[41] Hall, R. Thinks will never be the same… (Football Associations Insight Magazine, Archive, not dated) and Talent Development, Some recently released statistics regarding young player development in
England, statistics released by the English Football Association in its Coaching Magazine ‘Insight’.

[42] Parrish, R. Sports law and policy in the European Union, (Manchester University Press, 2003), pp 97.

[43] Chaplin, M, Homegrown player plans revealed, uefa.com, 03/02/2005

[44] Chaplin, M, Homegrown player plans revealed, uefa.com, 03/02/2005

[45] [2002] ECR I-2549

[46] [2000] ECR I-2681

[47] Otherwise they would be contrary to Art.81(3)

[48] Plath, Individualrechtsbeschränkungen im Berufsfußball (1999) pp.91 Case C 51/96 & 191/97

[49] Cagier, A, Sport and Competition Policy, Sports Law, (Cavendish Publishing, 2001), pp400

[50] OJ [2001] C 80/1.

[51] Chaplin, M, Homegrown player plans revealed, uefa.com, 03/02/2005

[52] BBCi Sport, Johansson presses for import restrictions, www.news.bbc.co.uk, 25/10/2004

[53] BBCi Sport, Johansson presses for import restrictions, www.news.bbc.co.uk, 25/10/2004 

[54] BBCi Sport, UEFA out to trim foreign imports, www.bbc.co.uk, 16/12/2004

[55] Hart, S, Create level playing field, (uefa.com, 2004) www.uefa.com/uefa/news/Kind=128/newsId=242608.html

[56] This would appear to make little difference to the EC as it is established case law that the concept of an undertaking covers every entity engaged in an economic activity, regardless of the legal status …and the way in which it is financed. Furthermore, according to EC competition law, it is not a condition that activates are carried on with the view to making a profit in order to be susceptible to its scope. (Van Landewyck v European Commission [1980] E.C.R. 3125

[57] Ponds, J.-F. Speech to the Fordham Corporate Law Institute’s Twenty-Sixth Annual Conference on International Anti-Trust Law and Policy, (New York, 14-15 October 1999)

[58] It should be noted a ‘negative clearance’ cannot be obtained for an infringement of Art.82.

[59] Parrish, R. Sports law and policy in the European Union, (Manchester University Press, 2003), pp 112-117

[60] One such example is the Danish Co-operatives case.

[61] One such example is the signing of Sol Campell by Arsenal from Tottenham Hotspur where the fact that no transfer fee was paid allowed Arsenal to offer Sol Campell considerably higher wages.

[62] BBCi Sport, Johansson presses for import restrictions, www.news.bbc.co.uk, 25/10/2004 

European Sports Law & Policy

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