Interaction of the rules in sports law and the laws and treaties made by public authorities*

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1 Sport and law On 14th July 1976 the Court of Justice of the European Communities pronounced a judgement of interest to the European sports world. What was the case about? The facts are simple. Mario Mantero (ITA), former President of the Rovigo FootbaII Club (ITA), had commissioned Gaetano Dona (ITA) to put out feelers in foreign football circles with a view to finding a player willing to play for Rovigo. Gaetano Dona incurred the cost of inserting advertisements in a Belgian sports paper, received a number of offers, and asked for the repayment of his expenses. Mario Mantero refused to consider the offers and to pay the expenses. Gaetano Dona started proceedings. He was told that the statutes of the Italian Football Federation were against the transfer of a foreign player as membership was granted only to players of Italian nationality. The conciliating judge referred the case to the European Court of Justice for a preliminary ruling on four questions. The first two questions were to discover whether the EEC Treaty conferred on all nationals of member countries the right to offer their services in any part of the Community, and second/y, whether football players also enjoyed this right in the event of their services being of a professional character. The third question was whether this right could also be invoked to obtain the non-application of rules to the contrary issued by a sports federation competent to control the game of football on the territory of one member state. The fourth question, raised in the event of affirmative replies to the other three, was to discover whether such a right could be directly invoked in the national courts and whether the latter were bound to protect it. The Court replied as follows: Rules or a national practice, even adopted by a sporting organisation, which limit the right to take part in football matches as professional or semi-professional players solely to the nationals of the State in question, are incompatible with Article 7 and, as the case may be, with Articles 48 to 51 or 59 to 66 of the Treaty, unless such rules or practice 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. Article 48 on the one hand and the first paragraph of Article 59 and the third para- 618

2 graph of Article 60 of the Treaty on the other the last two provisions at least in so far as they seek to abolish any discrimination against a person providing a service by reason of his nationality or the fact that he resides in a Member State other than that in which the service is to be provided have a direct effect in the legal orders of the Member States and confer on individuals rights which national courts must protect. by Luc Silance* IOC legal adviser Interaction of the rules in sports law and the laws and treaties made by public authorities* The Treaty of Rome is aimed at bringing about the economic integration of member countries; it implies the development of trade in a single market and the free movement of products and men. By multiplying business relations and helping to break, so to speak, a national framework that has become too small, the Treaty opens up to firms and workers the wider field of action of the whole Community; this goal is achieved by doing away with all restrictions: to the right of establishment in another country, to the right of exercising professional activities (industrial, commercial, agricultural or liberal) under the same conditions as the nationals of the country concerned, to the right of freely offering services without restriction within the Community. The Court has recognised in various judgements that Article 7 of the Treaty prohibits any discrimination exercised on grounds of nationality and sets forth a rule of law which is directly binding both on the institutions of the Community and on member countries. The judgement in the case of Dona versus Mantero confirms earlier decisions (in particular Walrave and Koch versus the Union Cycliste Internationale, 36/74 of 12th February 1974, J.T., 1975, p. 63 and observations Mac Gillavry). It points out that the provisions of Articles 7, 48 and 59 of the Treaty confer on all nationals of countries belonging to the Community the right to perform a job in any part of the Community. Any national of a member country, whatever his place of residence, is entitled to obtain a wage-earning activity and to exercise it on the territory of another member country. Article 59 abolishes any restriction on the right to exercise an independent activity enjoyed by nationals of member countries living in a country of the Community other than the one of the person benefiting from the service. Article 60, para. 3, allows the person offering his services to exercise his temporary activity in the country where the services are required, under the same conditions as those that this country imposes on its own nationals. Politics and sport The particular interest presented by the judgement dated 14th July 1976 is due to the fact that it is operative in a field outside the Photograph opposite: Aerial view of the buildings occupied by the European institutions in Brussels. * Observations on the judgement of the Court of Justice of the European Communities dated 14th July 1976, published in the Journal des Tribunaux No printed in Brussels. 619

3 usual concerns of jurists sport. Does the development of sports relations also contribute to economic integration? For the second time within the space of 18 months (see judgement in case of Walrave and Koch versus UCI), the Court of Justice has therefore had to give preliminary rulings relating to sport. It gave its second verdict in this field on 14th July 1976, three days before the opening ceremony of the Games of the XXIst Olympiad in Montreal. Such interest is characteristic but not new. While sport never used to concern public authorities and was very seldom brought before judicial authorities, this voluntary activity has for a long time ceased to be considered purely as relaxation. As early as 1936, Hitler had understood the benefit he could gain, from the point of view of propaganda, from the gathering of the youth of the world on the occasion of the four-yearly staging of the Olympic Games. Nearer to today, East Germany has recognised sport as a constitutional right (followed by Switzerland and Portugal in this same field); it has organised sport in such a way as to impose it on the whole population and to train a remarkable sporting elite; its purpose was mainly political. Everyone remembers with horror the attack made by a Palestinian terrorist commando in 1972 against the Israeli Olympic team in the Olympic village in Munich, during the Games organised in that town (Serge Groussard, The Blood of lsrael, William Morrow, 1975, New York; Lord Killanin and J. Rodda, The Olympic Games, p. 20; Monique Berlioux, The History of the lnternational Olympic Committee ). It was a particularly atrocious but effective way of calling the attention of the whole world to the Palestinian cause. In 1976, no tragedy came to mar the Games in Montreal but they were notable (apart from the competitions of a very high level) for their increased politisation. They will for ever remain notorious because the Canadian Government, going back on its word to the International Olympic Committee (IOC), refused to allow the athletes of the Republic of China Olympic Committee onto its territory on the pretext that Canada maintains relations with the People s Republic of China and that the latter had threatened to break off these relations if the Chinese from Taiwan (Formosa) were allowed to take part under a name mentioning the word China. Later, the governments of most African countries staged a walkout, recalling the athletes representing the Olympic Committees of their countries on the pretext that the IOC refused to ban New Zealand even though the latter maintained sporting relations (in rugby football) with South Africa, a country that practises racial discrimination (rugby is not one of the Olympic sports and other countries, such as Great Britain, Ireland and France, have the same relations). In these political discussions, sport became an accessory concern. It is not sport that is becoming politicised, but politics that are taking more and more interest in sport and not always for the best reasons. Penal law and sport The rapid development of a liking for and the practice of sport in all countries and among all classes is one of the most typical features of contemporary social life... This sentence, which might have been taken from a recent article, served as an introduction to a study published in 1924 by Garraud ( Les sports et le droit pénal ) in the Revue internationals de droit pénal of 1924, p The interest shown by jurists in sport is therefore not new. As long ago as 3rd December 1912, the Douai Court of Appeal decided a lawsuit on a matter of principle concerning the legality of exchanging voluntary blows in boxing (Benoit Carpentier and Descamps versus Baur and Roux, Rec. Gaz. Trib., 1916, 2, 137; D., 1913, 2, 198 and note; S., 1914, 2, 217 and note Roux; R. crit., , pp. 262 et seq., and note Demogue). George Carpentier s father and his manager had agreed to let him take part in three boxing matches in Paris from 1st October to 31st December They claimed that the contract signed on 11th May 1911 could not be legally binding as its cause was not a lawful one (organisation of meetings for the purpose of exchanging blows). The Court of Douai rejected this argumentation and recognised the validity of the contract, on the grounds that the blows exchanged by boxers in a match cannot be likened to the blows provided for by the legislator in Articles 309 et seq. of the Penal Code. ln 1913, Carton de Wiart, Belgian Minister of Justice, in a ministerial circular to the At- 620

4 torney Generals, ordered boxers to be prosecuted for voluntary blows and injuries (circ. min. Just. 1913, p. 142; Raymond Charles, Le sport et le droit pénal, report to the Belgian and Luxembourg Union of Penal Law in Luxembourg, 6th June 1953, Rev. dr. pén. crim., , p. 852). The circular remained ineffective. Under almost identical titles, three articles appeared, devoted to the problem of the relationship between sport and penal law (Garraud, Les sports et le droit pénal, Rev. int. dr. pén., 1924, p. 212; Charles, Le sport et le droit pénal, Rev. dr. pén. crim., , p. 852; J. Constant, Droit pénal et sports, Rev. dr. pén. crim., , p. 277). Their authors tried to find a justification for the favour in which the law and the legislator hold sport and the reason for which obvious infringements of the penal law are not punished by the courts. Blows are exchanged voluntarily in boxing, involuntary blows and injuries are wrongly inflicted in other sports, and yet the few cases brought by certain magistrates were doomed to failure. After asserting the legality of all sports, even that of violent sports, Garraud considered as early as 1924 that as a general thesis and from a social point of view the law allowed in ordinary cases, the penal and civil responsibility of the authors of voluntary lesions to be waived, and the fully valid character of any contract having as cause or for object the practice of a sport, even a violent one, to be admitted. In 1953, Charles stated that the initial purpose of sport is entertainment, recreation, play, relaxation of the mind. In his view, the law is the real basis for sports immunity, within the limits imposed by reasons of public utility which caused sport to be recognised (Article 1965 of the Napoleonic Civil Code). The value of sports rules comes from the social mission of sport. In 1967, Constant regretted the distortion of Pierre de Coubertin s ideas, practically all of which had been betrayed in the last 50 years. Pointing to the existence of two Belgian laws, one dated 31st May 1958 concerning boxing, the other dated 1st June 1965 aimed at stopping the use of stimulants (doping) in sports competitions, he considered that the legislator had done his best to prevent the crusade advocated by Pierre de Coubertin with a view to restoring the educational and moral value of sport from degenerating into a terrible rout. Penal law and football In Belgium, the Courtrai Court of Summary Jurisdiction gave judgement on 11th June 1968 in a lawsuit between two football players, one of whom had had his leg broken by a kick from the other player without it being possible to say categorically that the latter had deliberately kicked the former; the Court considered that the defendant had broken a rule of the game by tackling his opponent from the rear. The charge of unintentional blows and injuries had been upheld. The Ghent Court of Appeal confirmed the first part of the decision but rejected the charge of unintentional blows and injuries, the infringement of a sporting rule constituted by a tackle not being able to be considered as a wrongful act under the terms of Articles 418 and 420 of the Belgian Penal Code, even though it involved an infringement of the rules of the game of football, since these provisions had been accepted by agreement between parties within the framework of the practice of this sport and that in rugby, for example, a tackle of this kind is permitted. The Court of Appeal considered therefore that, in the game of football, the mere fact of tackling does not conflict in any way with the general rules of prudent conduct on the part of a man with regard to another. The referee, called as a witness, had pointed out that such incidents occur frequently during football matches. Appealed to, the Supreme Court of Justice decided on 16th June 1969 that according to the Court of Appeal it is not established that the deed referred to as a wrongful tackle in the dossier constituted wrongful behaviour coming under the terms of Articles 418 and 420 of the Penal Code; that the Court of Appeal noted in fact and consequently without appeal that no act contrary to the normal and customary rules of the game and the rules of prudence that govern a man s behaviour had been committed. 621

5 This decision applied the rules of the game and referred to them not only for examining the behaviour of the player but also for determining the behaviour of a prudent man towards his fellows in the practice of the game. The Court of Justice therefore applied the rules of football like other provisions of positive law. The juridical orders of sport The acquittal of a boxer or of a player whose act constitutes a breach of the rules of the game, penalised accordingly during the game, shows that courts recognise a special character in the rules of sport, extending beyond the contractual framework. The judge is in the presence of two quite distinct juridical orders, on the one hand that of the nation, on the other that of the sport practised by the athletes. If the judge allows the practice of boxing or other violent sports involving voluntary blows, if he exonerates voluntary blows and all involuntary blows even if they are infringements of the rules of the game, it is because in these sports, according to the rules applicable, the punishment of the fault if any is only a penalty in the game itself. There is therefore no civil or penal fault in the sense of the law; there is no reason to apply punishments other than sports penalties. The sports juridical system is applied in preference to the state juridical system. In a previous article, we called attention to the existence of rules of law in the field of sport and to their specific aspect (Silance, La formation de la règle de droit dans le domaine du sport, in La règle de droit, studies published by Ch. Perelman, Bruylant, 1971, p. 302). What distinguishes the rule of law in the field of sport is that it is laid down by an authority distinct from the usual legislator. Those in charge of sport do not possess any political power in one or more countries, but are elected from within the Olympic sports movement or the federation. The rule is laid down therefore by the voluntary sports movement, within an International Sports Federa- tion or the International Olympic Committee (see for example the rules governing eligibility or amateurism, Lord Killanin and J. Rodda, The Olympic Games, London, 1976, p. 143, Eligibility and Amateurism; Monique Berlioux, Olympica, d Olympie à Mexico, Flammarion, 1967, p. 405). These international sports organisations are modelled on the pattern of federal States, since they govern national sports federations and obey rules contained in Statutes. General Meeting or Session, Board of Directors or Executive Board, disciplinary measures: the International Olympic Committee and the lnternational Sports Federations are comparable to inter-state international organisations. Their written rules (statutes or regulations) comprise legal provisions (Sforza, La teoria degli ordinamenti giuridici e il diritto sportivo, Foro it., 1933, 1, 1381; Mirto, L organizazzione sportiva italiana. Autonomia e specialita del diritto sportivo, Riv. Dir. Sport, 1959, p. 6; Silance, La formation de la règle de droit dans le domaine sportif, loc. cit., pp. 296 to 312; Silance, Les règles du Comité International Olympique et le droit, J.T., 1971, pp ; Jean Claude Germain, Les sportifs et le droit, Liège, 1975, pp. 19 et seq.). Sport perhaps obeys the State juridical order but first of all various distinct juridical orders, one for each sport. Each sport constitutes an internationally organised social body and comprises a distinct juridical order (S. Romano, L ordre juridique, Paris, Dalloz, 1975, p. 12; J.C. Germain, Les sportifs et le droit, pp. 22 et seq.). The International Olympic Committee is considered as the highest sports authority; it governs Olympic sport which forms an extra juridical order. In social law, the specific character of the sports phenomenon appears too; sportsmen as such receive no special social protection. It is only when sportsmen become champions that they raise particular problems. Devoting a great deal of their time to training and competitions, these top level athletes need constant medical supervision, physical care, massage, kinesitherapy, a special diet worked out by a dietician, training courses, frequent top level competitions, a specific environment, comprising in addition to the doctor and the kinesitherapist, a trainer and officials, all naturally involving considerable expense. 622

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7 Social law and sport The social problems facing the top level sportsman are due to the fact that by sacrificing to a large extent his studies or his work till the end of his sports career, he will have great difficulty in taking up ordinary life again. These difficulties are different from those experienced by workers in general. While sportsmen have a normal fear of disablement or unemployment, they are very seldom afraid of sickness, which is practically never the consequence of their activity. Sportsmen are normally men of good health. Even the relationship between an athlete and the person or body that pays him is not a normal work relationship. The person or body that provides remuneration or that pays certain amounts may be either a club, an extra-sports firm, or the organiser of the match, and sometimes a sponsor, who may be either a patron of sport or a calculating businessman. The nature of the contract is not established with any degree of certainty. Top level athletes who wish to take part in Olympic competitions or non-professional championships are helped in most countries, and various solutions have been devised to make it possible to provide them with the assistance needed to allow them to carry out a strict training programme while remaining eligible to take part. In the United States, there are student athletes; in the USSR, State athletes; in France, Germany and even in Belgium, subsidised athletes. In every case, if the State steps in with financial assistance, it is for propaganda purposes, to attract the attention of the masses to sport, and to allow the country itself to share in the glory won by the sportsman. Status of the football player For nearly 100 years, the most popular sport, football, which is played by millions of young and not so young people has been governed in the world by the Fédération Internationale de Football Association (FIFA) and in Europe by the European Football Union (UEFA). 624 The power gained by the enormous number of its adherents has given rise to jealousy and criticism (Blanpain, Vers les indispensables réformes du football belge, Louvain, Libr. univ. Uytspruyt; Albouy, La profession du footballeur en France, 1. Une prison dorée pour les athlètes, 2. Un recyclage obligatoire, Le Monde, 11th August 1971, p. 13, and 12th August 1971, p. 15; Janssen van Raay, The legal position of the professional football player. A comparative study, London, Sijthoff, 1967). In reply to accusations of paternalism with regard to players, of misuse of economic power with regard to other organisations, the European Federation (UEFA) stated its defence in a report drafted by a group of jurists ( Rapport concernant le statut du joueur de football en Europe et à I intérieur du Marché commun, UEFA, 1972), and dealing with the problems facing professional players and those raised by the coexistence of so-called amateur football and professional or semi-professional football. The situation is complicated by the accumulation of a contract binding the player to his club or to his employer, the exact nature of which is not known and an additional notion, differing from those that exist in social law: membership. A player must in fact join, or become a member of, a national football association to which the club he is going to play for belongs. Depending on the country, this membership is made either directly with the federation with subsequent assignment to the club chosen by the player, or with the club and then to the national association, at the club s proposal. A professional player is bound to his club by a contract. Whether it is a work contract or an employment contract or even any other contract governing the hiring out of services, in any case there is a bond of juridical subordination. Even if a player exercises an activity of which he is master on the technical and tactical levels, and even if there exists no real control on the part of the employer during the activity performed by the player, that is to say even if there is no technical dependence, this subordination nevertheless exists. A football player may be bound by the ties of an employment or a work contract in the same way as a doctor, an engineer, a chemist, a music hall performer, a film actor, etc.

8 It would seem therefore that the contract signed between a professional player and his club is a hiring out of services of a special nature, a contract sui generis distinguished by the existence of a triangular relationship: player-club-association. The rules of the game, of discipline, administration and management peculiar to football complete the provisions applicable to the ordinary hiring out of services. Coming under the law of association, they determine the methods of application of contracts between players and clubs. The legal experts of the UEFA consider that in case of conflict between the rules of the law of association and those coming under the law of work, both governing the relationships between the three parties, priority should be given to the law of association. The transfer of a player from one club to another often involves the payment of considerable sums. Football managers all over the world deny exercising a monopoly or constituting an economic agreement that might be incompatible with the provisions of Article 85 of the Treaty of Rome. They consider that they are in a unique position enabling them to govern football, in particular professional football, throughout the world. The national associations effectively controlling football in their country may, without racial, religious, or political discrimination, join the FIFA, which recognises one national association per country. The questions facing the UEFA s legal experts and the answers they gave are comparable to those arising in the Dona versus Mantero case submitted to the European Community s judges. The facts of the case summed up in the report of the hearing and in the judgement are simple: Manterò, former President of the Rovigo Football Club had commissioned Dona to put out feelers in foreign football circles with a view to finding a player willing to play for Rovigo. During his prospecting, Dona incurred the cost of inserting advertisements in a Belgian sports paper, had received a number of offers and was asking for the repayment of his expenses. Mantero refused to consider the offers and to pay the expenses. In answer to the case brought against him, he maintained that Dona had acted prematurely and that the statutes or organic regulations of the Italian Football Federation, Articles 16 and 28g of which lay down that only players belonging to the federation may take part in football matches and that membership is granted only to players of Italian nationality, were against the proposed transfer. Dona referred to the Treaty of Rome to claim that these two articles of the statutes of the Italian federation were discriminatory and contrary to Articles 7, 48 and 59 of the Treaty. The Dona versus Mantero case The conciliating judge referred the case to the Court of Justice of the European Communities for a preliminary ruling on four questions. Having heard the arguments of the parties involved and those of the Commission and the Assistant Public Prosecutor, the Court in answer to the first question replied that Articles 7, 48 and 59 of the Treaty conferred on all nationals of countries belonging to the Community the right to offer their services in any part of the Community. A problem peculiar to the practice of sport is raised as to whether football players enjoy identical rights to those of other workers, in the event of their services being of a professional character. According to the terms of the judgement, the suit is a disagreement on the compatibility, with the above-mentioned articles of the Treaty, of certain provisions of the organic regulations of the Italian Football Federation under the terms of which only players belonging to this federation may take part in matches as professionals or semiprofessionals, while membership in this capacity is granted only to players of Italian nationality. In the Common Market, any discrimination based on nationality has been abolished by Articles 7 and 48 of the Treaty. Regulation 1612/68 of 15th October 1968 relating to the free movement of workers within the Community entitles every worker, whatever his place of residence, provided he is a national of a Common Market country, to have a wage-earning activity and to exercise it on the territory of another member country. It still remains to be decided whether a sports activity as such can be considered as wage-earning. The same questions arise regarding the freedom to provide services 625

9 (Article 59) or regarding the actual provision of services by a giver of services in a temporary capacity (Article 60, para. 3). The Court considered that in view of the Community s aims, the practice of sports comes under Community law in so far as it constitutes an economic activity in the sense of Article 2 of the Treaty and, in addition, that such is the case of the activity of professional or semi-professional football players, as these exercise a wage-earning activity or perform remunerated services. The conclusion should be obvious: in theory, if the principles were to be applied strictly, football players having the nationality of a member state should benefit in all member states from the Community provisions relating to the free movement of people and services and should be able to play football as remunerated players in any member country. The same should apply to other sports qualified as professional. The Court however did not stop at these considerations but added an important detail that these provisions do not however prevent a regulation or a practice banning foreign players from taking part in certain matches for non-economic reasons, arising out of the specific character and context of these matches and therefore affecting sport alone as such, as is the case for example of matches between the national teams of different countries. The UCI versus Walrave and Koch case One cannot comment on the Dona versus Mantero decision without referring to the judgement dated 12th December The argument maintained before the President of the District Court of Utrecht by the trainers of Dutch nationality on dernies (small motor cycles), was that the modification made by the Union Cycliste Internationale to its regulations (since 1973, the trainer must have the same nationality as his racer) was in contradiction with the prohibition of discrimination based on nationality, contained in the Treaty of Rome. Deciding in the case of an appeal against a decree (11th May 1973) ordering the UCI to allow trainers to take part in races, without applying the new rule, the Amsterdam Court of Appeal rejected (on 12th January 1974) the plaintiffs appeal provisionally. With regard to the main issue of the case, the District Court of Utrecht referred to the Court of Justice of the European Communities for a preliminary ruling on a series of questions (judgement dated 15th May 1974). In its judgement dated 12th December 1974, the Court decided that the prohibition to exercise discrimination based on nationality does not apply to the composition of sports teams, in particular in the form of national teams, the formation of such teams being a question affecting sport alone and, as such, unconnected with any economic activity. This part of the judgement is the solution to the problem of the interaction of the Treaty of Rome and the regulations of the sports federations. The Court allows that rules contained in the statutes of International Sports Federations may take precedence over the Treaty of Rome. To allow such derogations to the Treaty resulting from rules of private organisations, to allow the precedence of sports rules over the provisions of a treaty whose imperative character is imposed even on legislations of member countries, is a curious phenomenon worthy of note. It is the highest court in the Community, the Court, of Justice in Luxembourg, which in the sporting field has recognised the existence of specific elements outside Community law and the economic activity governed by the Treaty. Sport, even professional sport, obeys its own rules, in some cases even taking precedence over the Treaty. To allow as the Court did in 1974 that the practice of a sporting activity is subject to Community law only in so far as it constitutes an economic activity in the sense of Article 2 of the Treaty is to recognise the specificity of the sports phenomenon in general. If the exception of national teams of professional sportsmen is added, the derogations to the scope of Community law are quite considerable. What is the explanation? We think that the law (in this instance the Treaty of Rome) did not have the power to supercede rules that have kept all their value, in opposition to the legislation. The Court of Justice confirms implicitly but surely the juridical value of the rules of the International Sports Federations (and of the International Olympic Committee), the nature of which (they come under distinct juridical orders) means that they are to take precedence in certain cases over Community law. 626

10 Governing specific problems of a sporting nature, they are to be applied rather than the provisions of the Treaty of Rome, in case of conflict between the two sets of rules or laws. The rules contained in the statutes of the International Federations or the International Olympic Committee govern sport throughout the world. Being universally accepted, they never come into conflict with a principle of primary importance, essential to established moral, political or economic order, that is to say with the private international public order (Belgian Court of Justice, 4th May 1950, Pas., 1950, I, 1954; French Court of Justice, 25th May 1948, Rev. crit. dr. int. priv., p. 89). Everyone agrees moreover in attributing a series of qualities to sport: contribution to physical health and moral health, the training of the young, psychological equilibrium, fair play. To the public s favour is added the favour of the legislator (R. Charles, Le sport et le droit pénal, Rev. dr. pén. et crim., , p. 872). Professional sport is not excluded from this twofold appreciation and this popularity, and it is not surprising that since sport obeys rules of its own, they are complied with, even if they are sometimes in contradiction with State rules. The rules of the sports federations The Court distinguishes between the national regulations or practice, laid down by a sports organisation, and the international rules, issued by a sports authority. In the Walrave judgement (36/74), the Court examined a provision in a set of international regulations. In the Dona-Mantero case (13/76), it examined the validity of the regulations of a national federation. The distinction seems to us important: we are unlikely to find, in the statutes of the International Olympic Committee or an International Sports Federation, clauses in breach of the principle of non-discrimination. Let us point out that in Article 3 of the IOC s Statutes, which is followed by most International Sports Federations, it bases its movement on moral principles comprising the statement that no discrimination is allowed against any country or person on grounds of race, religion or politics. The Olympic Games are moreover competitions between individuals, not between countries or geographical regions (Article 8). The prohibition of discrimination based on nationality (Article 7 of the Treaty of Rome) is binding on public authorities and governs paid work and the hiring out of services. The exception provided for in the Walrave and Koch judgement, due to the exceptional nature of sport, must remain limited to its proper object. Sport must not be given as a pretext for including in regulations provisions contrary to the law of the land or to Community law. International regulations are the result of a consensus of representatives of different countries, putting forward different points of view on a given subject. A national sports federation on the other hand governs sport in its own country. It must include in its organisation the rules laid down in the International Sports Federation that has recognised it. In adding other provisions of its own, it must, in our opinion, comply with the national legislation of which, in Common Market countries, Community law forms an integral part. In this particular instance, the Fédération lnternationale de Football Association issues a regulation applicable all over the world. Its provisions, in our opinion, apply only to sport. They are inherent in the specific character and setting of sports meetings. On the other hand, the rules of the Italian Football Federation could only be applied if first of all they comply with the FIFA s provisions and second if they are in contradiction neither with Italian law nor with the Treaty of Rome. Provisions contrary to a law or to the Treaty should, in order to be applicable, be based on criteria related uniquely to sport, that is to say based on noneconomic reasons. Can one imagine such reasons? Apart from true amateur sport, one may consider that in certain cases professional sport can be an example for the people or for the young, owing to its popularity. It may be worthwhile forming a team composed of a large number of sportsmen of the same country in order to encourage the young to emulate the champions. To allow the formation of sports teams composed entirely of foreign champions would certainly help preserve the popularity of the sport but would not have the same value by way of example as a 627

11 team composed entirely of leading national players. If young people, after learning the rudiments and the technique of sport, can themselves accede to the rank of champions without unnecessary fear of competition from foreign players, sport can be more widely spread. From this point of view, it would appear reasonable to limit the number of foreigners allowed to practise sport in professional teams. This is the opinion held by the French Attorney General, Touffait, writing in L Equipe (11th March 1976, Les Fédérations en conflit avec le Traité de Rome ), who considered that it is not possible to think of forming a team solely of foreigners and seeing it become champion of France. He thinks that sports officials should show a little imagination in order to avoid being criticised for discriminatory measures and that they should impose on national players certain obligations also borne by players belonging to other member states, for example by imposing the obligation on each team to keep a certain number of players native to the region in which the club is located. Conclusions The Dona-Mantero judgement, like the previous one (Walrave and Koch) has the great merit of showing that Community law, although comprising provisions of an imperative character, is not always imposed, even in Common Market countries. The practice of sport is subject to Community law in so far as it constitutes an economic activity; however it comprises regulations and practices contrary to the Treaty, which nevertheless remain applicable, owing to their specific character and the specific setting in which they occur: they affect only sport as such. In our opinion, the exceptions are a result of the simultaneous existence of distinct juridical orders, those of Common Market countries on the one hand and those of the International Sports Federations and the International Olympic Committee on the other. The written rules of the Sports Federations and the International Olympic Committee are juridical (Silance, La formation de la règle de droit dans le domaine sportif, in La règle de droit, articles published by Perelman, pp. 296 to 312; Silance, Les règles du Comité International Olympique et le droit, J.T., 1971, pp. 694 to 696; J.C. Germain, Les sportifs et le droit, p. 19, note 24 and references quoted). The allowing of voluntary blows in boxing, the application of the rules of football to unintentional blows and injuries in football, the limited application of social security to racing cyclists and other professional sportsmen, the formation of national sports teams in violation of the principle prohibiting discrimination based on nationality, all these different examples show the existence of juridical sports orders that are distinct from the Community order and whose rules sometimes take precedence over national legislations. What is solely of interest to sport is considered as outside economic activity, even if professional players for whom sport is a profession are involved. In addition the activity of non-remunerated sportsmen takes place outside the economic sector governed by the Treaty. The exceptions are too many not to become the rule. National jurisdictions and the highest Community jurisdiction have recognised the value of sports rules laid down by the relevant International Federations and consequently admitted the existence of sports juridical orders. A State, national or Community juridical order comes only seldom into conflict with the juridical order of a sports federation or of the International Olympic Committee. In cases of conflict, countries, just like the European Economic Community, recognising the educational value of sport, its favourable influence on man in general and on his culture in particular, do not look unfavourably on the sports juridical order (as they do for example on associations of terrorists or thieves). To allow the application of the rules of a game in preference to imperative provisions or provisions of public order constitutes implicit but certain recognition of the priority of the sports juridical order over the State juridical order in cases where the rules of the game are to be applied. The law of the State, whether national or Community, gives way before the law of sport in its own domain. L. S. 628