In his book 'Postwar' the historian Tony Judt wrote of the ‘largely un-European mental universe of most Europeans’. Yet, he also identified one ubiquitous exception: sports – and especially football, ‘a game without frontiers, for players, managers and spectators alike’. He even wrote: ‘What really united Europe, is football.’
Whether or not that’s true, it’s hard to deny that sports are a major part of social and economic life in Europe. How sport is governed, how it is regulated and by whom, is a question that is worth taking seriously. And it’s a question on which EU law has something to say. There is a modest amount of case-law from the European Court of Justice on sports and there are several more cases currently pending: the Royal Antwerp Football Club-case, the International Skating Union-case and, of course, the Super League-case.
My guest in this episode definitely takes football seriously. His name is Miguel Poiares Maduro. He’s an academic and political commentator, a former minister in the Portuguese government, a former member of the European Court of Justice, and an incurable fan of football. He recently wrote an essay called ‘EU Law and Sports: A Match Made in Hell or in Heaven?’ The essay draws on his expertise as an EU constitutional lawyer, on his acuity as an observer of political institutions, and on his personal experience as Chair of the Governance Committee of FIFA.
He argues that the way in which European football is governed today needs to change and that the European Union is best placed to bring international sports organisations in line with principles of democracy and good governance. We talk about the European Model of Sports. About the Super League case. About the conflicts of interest that currently plague sports governance bodies. And about the Court of Arbitration for Sport. I ask him what he thinks the EU should do, and why he believes that discussing sports governance can help us gain a deeper insight in the soul of European integration.
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FELIX RONKES AGERBEEK: Welcome back to Europa Felix. In his book 'Postwar' the historian Tony Judt spoke of the ‘largely un-European mental universe of most Europeans’. Yet, he also identified ‘one ubiquitous exception’: sports. And especially football, ‘a game without frontiers, for players, managers and spectators alike’. He even wrote: ‘What really united Europe, is football.’
Whether or not that’s true, it’s hard to deny that sport is a major part of social and economic life in Europe. So how sports is governed, how it is regulated and by whom, is a question that is worth taking seriously. And it’s a question on which EU law has something to say. Already there is a modest amount of case-law from the European Court of Justice on sports and European law. And right now, there are several more cases pending: the Royal Antwerp Football Club case, the International Skating Union case and of course – and this one has drawn a lot of media coverage – the Super League case.
My guest in this episode definitely takes football seriously. His name is Miguel Poiares Maduro. He’s an academic, a political commentator on Portuguese tv, a former minister in the Portuguese government, a former member of the European Court of Justice – and an incurable fan of football. He recently wrote a paper called: ‘EU Law and Sports: A Match Made in Hell or in Heaven?’. The paper draws on his expertise as an EU constitutional lawyer, on his acuity as an observer of political institutions, and on his personal experience as the Chair of the Governance Committee of FIFA.
He argues that the way in which European football is governed today needs to change. And that the European Union is best-placed to bring it in line with principles of democracy and good governance. We talk about the European Model of Sports. About the Super League case. About the conflicts of interest that currently plague sports governance bodies. And about the Court of Arbitration for Sport. I ask him what he thinks the EU should do, and why he believes that discussing sports governance can help us gain a deeper insight in the soul of European integration.
Two things before we start. First, I promise you: you don’t have to be a football fan or know much about football to enjoy this conversation. And second, our conversation was recorded long distance and unfortunately you can notice that in the sound quality. If there’s anything you have trouble understanding, you can find a transcript on the website.
And now, without further ado, here is Miguel Poiares Maduro.
Miguel, welcome to the show!
MIGUEL POIARES MADURO: Thank you so much for the invitation, Felix. Really a pleasure.
FELIX RONKES AGERBEEK: I think many listeners will know that you have a passion for EU law. Some of them may know that you also have a passion for football. Before we start looking at where those two intersect, may I ask you, what is it that football means to you? Where does your love for the beautiful game come from?
MIGUEL POIARES MADURO: So I love football as a fan and I strongly support my team. I go and see football matches. I wake up in the middle of [the night in] Asia in a different time zone to see an important match. But I’ve also played it when I was a young kid. And at a pretty decent level in a very good team of young players in Portugal that almost won the youth championship. I’ve never tried to rationalise it. It’s a little bit like having to explain: why do you love a particular woman? I think I’ll keep this part of my life as a matter almost of faith. I love it as a matter of faith and I am passionate about it.
FELIX RONKES AGERBEEK: Fair enough. So where do football and European law intersect?
MIGUEL POIARES MADURO: Football, and sports in general, we came to see it from a framework of analysis that is somehow idealised but doesn’t correspond fully to what sports is. That idealised framework of analysis comes from our own practice of sports, the kids playing in the yard, sports as a grass roots movement. But in fact with time sports became also the source of very relevant economic activities. People buy tickets for sports events. People buy sports merchandise. People bet on sports matches. People see sports events. And as sports became more and more susceptible to that monetisation, they are the basis of economic activities of extremely high relevance: a study of the European Commission mentioned that the impact of football on Europe’s GDP was almost close to 3% if one would take into account all those related economic activities. And the regulation of sports by sports associations, or regulation of these economic activities, intersects with EU law in a variety of ways. If a team is not allowed to compete in a certain championship, if an athlete is prohibited or suspended from competitions, this is a prohibition on the exercise of an economic activity. So that is what is at the origin of the relationship between sports and EU law and of the fact that EU law increasingly became engaged in addressing, supervising, scrutinising and regulating sports questions.
FELIX RONKES AGERBEEK: So there’s now a body of EU case law on sports. And of the course the classic example is the Bosman-judgment, right? And the Opinion of Advocate General Lenz in that case.
MIGUEL POIARES MADURO: Yes. That is the most visible [example] of the impact that EU law could have in sports. And what is interesting to think about, and I think it’s crucial for us to understand the importance of EU law in the area of sports, is why the questions raised in Bosman were only decided at the level of the European Court of Justice and EU law when they could have been raised as questions of limits to the freedom to contract or to the right to work that are usual provisions in the constitutions of many states. And the reason has to do with the fact that if Bosman would be decided only on the basis of national law by the judicial system of a particular state FIFA and UEFA would never have accepted the jurisdiction of that court and would never have complied with the decision of that court. They would never even accept to go to that court and participate in those proceedings. Yet they did accept the jurisdiction of the Court of Justice and they complied with the decision of the Court of Justice. And the reason is simple: they can threaten an individual legal system, a particular state, by saying that if the state tries to regulate and intrude on what they see as their private autonomy of regulation, they can easily threaten that state, as they have done in the past very often, of exclusion of its national teams and its club teams and its athletes from their competitions. But they cannot do that to the Court of Justice, because that would mean the same as saying: we will exclude Spain, Portugal, Italy, France, Germany, the 27 Member States – they cannot do that. So it's a very interesting case where EU law and the European Court of Justice, contrary to the usual way that people see it, it’s not imposing limits on Member States, it’s not imposing limits on national sovereignty, it is instead reinstating that sovereignty. It is reinstating public and democratic control over transnational processes of decision making – in this case it’s regulation of these big sports entities – that individually Member States and their national legal orders can no longer do.
FELIX RONKES AGERBEEK: Basically, you have an economic actor that is so powerful that national governments, states, they don’t have effective authority over them. In fact, those private economic actors, they end up setting the rules, instead of being governed by rules.
MIGUEL POIARES MADURO: Yes. So sports is a classic example of that. A classic example of an area of life, social life and economic life, that is de facto subject to the governance, not of public authorities, but of private entities. In this case FIFA and UEFA in the case of football, or the International Olympic Committee in the case of other sports. But we see that in other areas that are not sports. We see that increasingly in the digital domain. What digital platforms do is to govern the public sphere, to regulate freedom of speech in the public sphere, through what they call ‘content moderation’. It’s a very similar thing. They are areas of social and economic life that, because of the increased interdependence that we have beyond our states, are subject to forms of governance that are not public forms of governance but that are private forms of governance. And the question that this raises is: To which forms of accountability should this be subject? How can we reintroduce some mechanism of democratic control? And I think that what the example of sports and football in particular makes clear is that you need transnational bodies such as the European Union in this case to actually reintroduce those forms of democratic accountability and public scrutiny.
FELIX RONKES AGERBEEK: So, to control these forms of transnational private governance you need supranational organisations, like the European Union, that have sufficient counterweight.
MIGUEL POIARES MADURO: Exactly. That have the bargaining power. A decision such as Bosman could only be taken and actually enforced, and complied with by FIFA and UEFA, if taken by a supranational court like the European Court of Justice.
FELIX RONKES AGERBEEK: You mentioned digital platforms which are of course economic enterprises, with profit motive, and I think that’s also how intuitively we see them, as businesses not as regulators. But with most sports organisations it seems to be a bit different, we do see them – and we do accept them – as regulators. And I want to quote your friend Stephen Weatherill here. He wrote that: the conflict of interest between regulatory concerns and profit-making is an endemic problem in sports governance, and the rising commercial value of sports – which you also mentioned – has made this worse. What’s your take on that?
MIGUEL POIARES MADURO: I absolutely agree with him. There is a systemic conflict of interest at the heart of how sports organisations function today because they are the main economic actors active in the markets that they themselves also regulate.
FELIX RONKES AGERBEEK: I want to get back to that conflict of interest and how that plays out in practice. But just to be clear, you aren’t saying that we should get rid of the private governance of sports, right?
MIGUEL POIARES MADURO: No. I think that there are reasons that may justify giving some degree of autonomy, some degree of private governance, to these bodies. But certainly not the extraordinary level of autonomy that they have, that basically means that they are totally and almost fully unaccountable.
FELIX RONKES AGERBEEK: I guess the counter-argument is that these organisations, they are made up of sports associations and sports clubs, they hold elections, and so they are best-placed to regulate the sport, better than other institutions at least.
MIGUEL POIARES MADURO: Yes. So basically they say: well, we are in a better position to represent everybody that is involved in the game of football. But then you look at reality and you look at their bodies, governance bodies, and it’s not so. You don’t see that. I mean: women amount to 2% of the presidents of the football associations. So much for gender diversity. We would not accept that in other areas of governance of our society. Two percent. Players, athletes, fans, other stakeholders don’t really have mechanisms of participation and in fact when you look at the details of how these bodies operate, they actually work as cartels – as political cartels. And you see that when you see the votes. I mean FIFA just changed its rules to allow its president to be voted by acclamation – not even secret ballot – by acclamation. Their votes are almost always unanimous. A recent study demonstrated that 75% of the sports federations, their most recent elections, the incumbent not only had one again, but had run unopposed. These are all very strong indications of lack of democracy, of lack of representation. And then we know that the level of concentration of power is extremely high in these organisations. So on the one hand they are not really representative, they don’t really comply with democratic principles. But the other aspect of good governance that we would expect is mechanisms of checks and balances. Of accountability. Of separation of powers. They don’t exist. Their so-called independent bodies – and I’ve had an experience of that – are not really independent. Let me give you even an extreme example: CAS, the Court of Arbitration for Sport. That is the ultimate judicial body of sports. All sports appeals are supposed to go CAS. And in theory, even appealing to ordinary courts is a violation of those rules. Only courts like the Court of Justice have been able to protect athletes from that. Remember that Mr. Bosman, because he appealed to the European Court of Justice, was prevented from playing football while the process was pending for several years. He was sanctioned that way because he went outside this system of arbitration and this judicial monopoly that the sports associations impose. The last two presidents of CAS have been former members of the governing body of the International Olympic Committee. This is the same thing as if we had had the Prime Minister of a government becoming the Chief Justice of the Supreme Court or the President of the Constitutional Court. This tells you the extent to which these organisations don’t comply with principles of good governance. And therefore you have, as I said, problems both at the level of the democratic character of these organisations and as to the absence of rule of law, separation of powers and checks and balances.
FELIX RONKES AGERBEEK: Just to put this in context. The Court Arbitration of Sports is a private system of arbitration set up by the International Olympic Committee. It has its headquarters in Switzerland. And clubs or athletes who want to compete professionally, in any sport basically but certainly in football, they have to accept the jurisdiction, the exclusive jurisdiction of CAS, right? And there’s relatively little public oversight. Swiss courts generally don’t interfere with the decisions of CAS…
MIGUEL POIARES MADURO: There has been actually a decision of the European Court of Human Rights on CAS itself, because someone challenged CAS under Article 6 [ECHR], the right to a fair trial. The good side of that decision was that the Chamber [of the European Court of Human Rights] did say that [CAS] had to comply with the principles that the European Court of Human Rights had developed in the context of Article 6. And then the other good aspect of that decision was that they went on to assess variety of aspects of CAS and highlighted that they really do not guarantee the independence of CAS. Because basically, to put it very simply, the CAS board members that then select the panellists of CAS, they are to a large extent chosen by the sports federations themselves. So their independence is questionable. But contrary to what the European Court of Human Rights does in other cases, the majority said that even if that was the case, the parties were required to demonstrate that that lack of systemic independence meant that the panel had been biased on that specific case and they hadn’t met that burden. That is a surprise burden because the European Court of Human Rights never requires this in respect to any other… I mean we now have cases on Poland for example and the European Court of Human Rights, similar to the European Court of Justice, limits itself to see whether or not the institutional conditions under which judges are appointed for example guarantee or not their independence. Perhaps the judges in that Chamber were afraid of the impact of blowing up the entire system of arbitration in sports. But there is indeed a problem there and a problem that sooner or later in my view will arrive at the European Court of Justice too.
FELIX RONKES AGERBEEK: You mentioned already your own experience. Because you have first-hand experience with the inner workings of FIFA, right? You were Chair of the Governance Committee of FIFA.
MIGUEL POIARES MADURO: For a very brief period of time.
FELIX RONKES AGERBEEK: For a very brief period of time. Can you tell us something about that? This was after the 2015 corruption scandal at FIFA, right?
MIGUEL POIARES MADURO: Yes. After that scandal of 2015 there was an attempt to reform FIFA and one crucial aspect of those reforms was the creation of the Governance and Review Committee. And I was asked at that period in time to be the Chair of that committee and I was the Chair of that committee. Actually, it included another well-known figure of EU law, Joseph Weiler. And it was a very interesting job, but we lasted only ten months in office.
FELIX RONKES AGERBEEK: What happened?
MIGUEL POIARES MADURO: Well, basically, we took seriously our job. We were not open to doing something that is usual in sports and in football in particular, that is: to do a selective application of the rules. For example, a very well-known and famous case was the fact that we excluded the then Vice-Prime Minister of Russia. The reason why we excluded him was that in our view the rule that requires that any FIFA official should be neutral with respect to governments obviously prohibits a member of government from being both in a government and governing in FIFA. That seemed to us almost the most obvious violation of that rule. But the President of FIFA strongly opposed that, because moreover we decided that one year before the World Cup in Russia and basically he stopped speaking with me from that moment onwards. But there were many other issues. I mean one very interesting one was that we were supposed to supervise the election of the AFC, the Asian Football Confederation, and one of the rules that was new – that they had to implement – was a rule that had been agreed in that reform package, requiring that in the elections to the FIFA Council that were to be conducted in the different confederations, among those to be elected at least one needed to be a woman. And what some confederations did – and particularly AFC did and not only – they basically implemented this rule by creating what they called the ‘female position’ and then making all women candidates, candidates to that single female position. So they transformed the ‘at least one woman’ in ‘not more than one woman’. And when we told them you cannot go ahead like that because you are transforming a rule that is aimed at promoting women representation into a rule that actually discriminates against women – that creates a ceiling on female representation – they refused to change the rules. And they actually postponed the Congress claiming that we were interfering in their autonomy precisely. And that led ultimately to a decision of CAS on a slightly different version of that rule whereby they forced women to choose whether to run for a ‘female position’ or whether to run for all the positions – what is also a form of discrimination, because men are not limited by that. CAS issued an award saying: yes, there is discrimination but we cannot do anything about it. And surprise, surprise: I’ve just seen that UEFA is organising its current confederation elections with the same model, forcing women to choose whether to apply for the one or the other position.
FELIX RONKES AGERBEEK: You’ve highlighted now problems of representation, problems of the functioning of the justice system – such as it is in the context of these sports organisations – and also problems of political influence. These are the kind of examples that I’ve heard you mention.
MIGUEL POIARES MADURO: In terms of political influence, in a book that celebrates the 30th anniversary of [the Bosman ruling], Advocate General Lenz recalls that when he was working on the Bosman case and writing his Opinion he was contacted by multiple sources – political sources – trying to influence him. He actually says: in my whole life at the European Court of Justice I was never subject to as many attempts at pressuring me as in the Bosman case. And he adds: one cannot overestimate the extent to which football organisations have political influence. And I think that’s a very good example of the extent of that political interference and, to a large extent unfortunately I think of capture of political institutions by sports organisations.
FELIX RONKES AGERBEEK: Would you also say that European institutions are better able to resist that kind of capture than national political institutions?
MIGUEL POIARES MADURO: Well, I would like to think so. The European Court of Justice has certainly shown that. I have to say I think the Council, the Commission and the Parliament have not lived up to the same standards as the European Court of Justice in this area. They haven’t done enough in this area and I think that some of the issues that we are going to face in the future highlight the need for those institutions to step up their game, because the European Court of Justice cannot be left alone in dealing with the scope of the challenges that the regulation and the governance of sports raises.
FELIX RONKES AGERBEEK: So if we look at UEFA, the governing body of European football… The problems that you have just sketched, and especially the conflict between regulatory and business activities, how does this play out in UEFA?
MIGUEL POIARES MADURO: UEFA has as its most profit-making event the Champions League, but at the same time is also the regulator of clubs, for example in terms of trying to preserve the competitive balance, to introduce mechanisms of redistribution, and to protect financial fairness for example.
FELIX RONKES AGERBEEK: UEFA has issued rules on financial fairness, the Financial Fair Play rules. Would you mind saying a bit more about those rules? What do they try to do?
MIGUEL POIARES MADURO: Yes, it’s a little bit almost like state aid rules, basically they say that football clubs have to live within their means and cannot benefit from the injection of outside capital. Their level of expenditure needs to correspond to the level of income that they can generate. I don’t think this is the best way, actually, of introducing renewed competition. It’s an additional source of distortion. We are favouring those that were… the so-called incumbents of football. But whatever is our view on that, that is the rules that UEFA itself adopted. And the question is: to what extent do they have an interest in guaranteeing an equal enforcement of those rules to all clubs when some of those clubs can have Mbappé, Neymar, Messi? And therefore if Mbappé, Neymar, Messi would not play on the Champions League, the Champions League’s economic value would be reduced. And that’s the conflict of interest.
FELIX RONKES AGERBEEK: You mentioned Mbappé, Neymar, Messi. That’s not a coincidence. These are all star players of PSG, of Paris Saint-Germain.
MIGUEL POIARES MADURO: Yes. Maybe some of the people who are listening to us don’t know, but the Financial Fair Play Body of UEFA has an investigative and adjudicatory chamber and in theory is independent. And in its previous composition they sanctioned Paris Saint-Germain. Now Paris Saint-Germain is not only extremely important in terms of revenues for the Champions League because it’s a big club and therefore liable to generate more interest, more commercial interest. But in addition to that Paris Saint-Germain is owned by the person that is now the president of ECA [the European Club Association] and that sits in the Executive Board of UEFA itself, and that moreover is the chairman of one of the companies that owns the broadcasting rights of the Champions League. When Paris Saint-Germain was sanctioned Paris Saint-Germain appealed to the Court of Arbitration for Sport. Publicly the only thing was known at the time was Paris Saint-Germain ended up not being sanctioned by the panel of CAS. But later the New York Times had access to the proceedings of the case and we found out that, surprisingly, the lawyers for UEFA went to the case and argued not in favour of the position of its own independent Financial Fair Play Body, but argued in favour of the position of PSG [Paris Saint-Germain]. And therefore they reached an agreement and PSG was not sanctioned. Now we cannot say for certain what were the motivations of UEFA in the case. What we can say for certain is that the position of conflict of interest allows all kinds of suspicions on this decision. And moreover this case is also an example of the extent to which sports federations don’t respect the authority and don’t respect the independence of their independent bodies.
FELIX RONKES AGERBEEK: I want to talk about the Super League.
MIGUEL POIARES MADURO: Yes.
FELIX RONKES AGERBEEK: In 2021, there was an attempt by 12 European clubs, prestigious clubs, including Real Madrid, Manchester United, and Juventus, to create what was called a European Super League. And a key feature of the Super League was that it would have been a closed league, like what you see in American sports – like the NFL [National Football League] or the NBA [National Basketball League]. So no promotion or relegation. But a core group of permanent clubs with a guaranteed place in the league, and maybe a few places for other clubs. That created a huge uproar and a very fierce reaction from UEFA. UEFA and FIFA announced all sorts of measures to prevent the Super League from being launched. And then the company that owns the Super League brought proceedings against UEFA and FIFA in a Spanish court, saying that UEFA and FIFA violated EU law, and especially the competition rules. Now, as we are having this conversation, the case is still pending at the Court of Justice. But there’s been an Opinion of the Advocate General. We’re of course still waiting for the judgment of the Court. And of course then the case will go back to the Spanish courts. Still, would you mind saying something about the Advocate General’s opinion and could you maybe start by explaining what UEFA and FIFA actually did that triggers concerns under EU law?
MIGUEL POIARES MADURO: They threatened to exclude those clubs. Initially they threatened to exclude the athletes too – that is so blatantly against EU law, even the Advocate General also says that, that they gave up on that. But they said, basically, they would exclude the clubs competing in the Super League from the Champions League but also from the national leagues. And the question is: can they do that? And if so, under which conditions can they do that? And basically what the Opinion – I am simplifying here – but what the Opinion of the Advocate General says, whether one agrees with it or not, is: yes in principle they can do it, if the decision is subject to an independent review, is proportional, and if indeed the league that is applying to organise the event is a closed league.
FELIX RONKES AGERBEEK: Can we zoom on that last aspect for a moment? Because the Super League was portrayed by UEFA and in the media as the end of European football as we know it. But in your chapter, your paper, you challenge that narrative. You write that the Champions League has de facto already become a Super League. Can you explain what you mean by that?
MIGUEL POIARES MADURO: Well, some years ago 50% of the clubs that participated in the last stages of the Champions League came from leagues outside the big five leagues. Nowadays it’s only 5%. Most of the final eight clubs tend to be more or less the same. The new rules of the Champions League even further entrench this because they create historical rights that allow clubs that have been successful to stay on. So to a large extent the open character of the Champions League – that is required by the European Sports Model of the European Champions League – it’s a fiction. It is so on paper, but the way the rules are organised leads to a de facto almost closed league.
FELIX RONKES AGERBEEK: You mentioned the European Sports Model, which I think it’s fair to say, the EU Treaties recognise as something that is worth preserving. How would you describe the European Sports Model?
MIGUEL POIARES MADURO: Yeah, I think that the European Sports Model has two main characteristics. One is the open character of the leagues. And this open character of the leagues has in itself also two conditions or two elements. The first one is that it should not be a closed league, it needs to be an open league with promotion, relegation, with clubs coming in and others going out, and so on. And the existence of European and national leagues – that’s the second dimension in my view of the open character of the European Sports Model. The Champions League should not undermine the existence of the national leagues. And that by the way is one of the other problems of how the Champions League is organised. Because particularly for medium and small leagues what happens is that only one club increasingly makes it to the Champions League. This club acquires a huge financial advantage by making it to the Champions League. And it’s a financial advantage that will tend to self-reinforce. Because once they make it to the Champions League they have more money to make it the next year, and so on and so on. And we are seeing that. All the studies indicate a huge decrease in the level of competitive balance within national leagues. The other aspect of the European Sports Model, as the Treaty [on the Functioning of the European Union] itself mentions, is fairness. And this means, for example, in my view, the inexistence of the kind of systemic conflicts of interest that we were mentioning, that put into doubt an equal application of the rules, that is the rule of law. This means also guaranteeing some level of competitive balance, that is with mechanisms of redistribution, because if the financial resources are hugely different between clubs and you have no forms of redistribution then you don’t really have a fair competition.
FELIX RONKES AGERBEEK: Can you say something about the connection between the European Sports Model and the Super League case? Because, essentially, the Super League case is about whether and to what extent an undertaking/regulator like UEFA can be trusted with the power to authorise competing commercial sports events. That’s the key issue I think. But you write that many people have largely bought into UEFA’s framing of the case as being about the Super League threatening the European Sports Model…
MIGUEL POIARES MADURO: We are currently discussing the European Sports Model in the worst opportunity possible to do it. Because the Super League case has led to a discussion on the European Sports Model that results from the current model being challenged by a closed league – the Super League – that is in itself in my view strongly contrary to the European Sports Model. But the risk that we are seeing is that because the Super League is itself so blatantly against the European Sports Model we are ignoring that the current model already doesn’t fit the European Sports Model. And that’s the sad thing about the entire debate. We may end up implicitly validating a current model that in my view does not comply with the European Sports Model because who is challenging it is so blatantly opposed to the European Sports Model itself.
FELIX RONKES AGERBEEK: The narrative that is spun around this whole case is that the Super League is actually destroying the European way of life when it comes to football, it’s turning it all into a capitalist enterprise, and that UEFA, supported by football fans, comes in here as the white knight and saves European football. But I have the impression that you think that that is a false narrative.
MIGUEL POIARES MADURO: It certainly doesn’t reflect the reality. I mean. Let’s assume the best of intentions of UEFA. The systemic conflict of interest in which it has to operate, and that we have discussed already, makes it very hard for it to do that. And in fact UEFA has caved in to the interests of the larger and the big clubs a lot. I would have liked UEFA to actually use this opportunity to reign in on sports and its economic dimensions. To really make prevail its regulatory dimension and the public goods that are implicitly allocated to it to pursue as the regulator of the sport, instead of the economic interests associated to its competitions. But so far that has not been the case.
FELIX RONKES AGERBEEK: I’m going to try to sum up the problems that you sketched. A first difficulty that you’ve talked about is the issue of representation and you can see that for example in leadership elections, you wrote also in your article that ‘the normal state of affairs for presidents of sports associations and governance bodies is to be for long periods in power, never to be challenged and to play a vital role in the choice of their successor from a limited pool of insiders’. So that’s the problem, that’s one aspect of it, the problem of representation. The second difficulty you talked about is the lack of checks and balances and separation of powers. And the third difficulty you mentioned is the problem of separating the business activities from the regulatory activities, the fact these two aspects are really entangled. You’ve also said that EU law can be the answer to these problems. What do you think that EU law should be doing?
MIGUEL POIARES MADURO: As I mentioned right at the start of our conversation EU law is in a unique position to reinstate some form of public and democratic accountability and scrutiny over sports governance. First, what is necessary to be done, is not to transfer the details of sports regulation including in some of its economic dimensions to public bodies – I think that is not feasible. But I think what is necessary is to make sure that sports governance bodies regulate and exercise this function in a way that complies with principles of good governance. That is, that they are genuinely representative of all the stakeholders, that their elections are democratic and generally free. Second, that they respect the rule of law and have effective mechanisms of separation of powers and checks and balances. And third, that they resolve the systemic conflict of interest that is at the heart of the role that they have been exercising. And that, in my view, requires, basically, to separate the regulatory functions from the event organising, the economic activity that they undertake. And in my view these three requirements will only be effectively imposed on sports governance bodies from the outside. They won’t undertake these reforms on their own, because they are a political cartel – for the same reason that other political cartels don’t reform themselves. And so, this requires public intervention and that public intervention, as I said, can only be effectively promoted by the European Union. What I think has been missing is that unfortunately European institutions have left almost all the burden of dealing with sports governance bodies to the European Court of Justice. And the Court won’t be able to do all. First because many cases won’t come to the Court. Very few of those that are in sport have an interest or have the courage of challenging the sports governing bodies. And second, solutions that the Court can give require monitoring and enforcement by additional institutions. Think about precisely the question that is at the heart of the Superleague case that is: can sports governing bodies have the monopoly on licensing competing sports events and sports competitions. And the Court has basically said, in cases where that [monopoly] has been given to them by public authorities: well yes they can do it, so long as they do it under objective criteria, in a non-discriminatory manner, and subject to independent review. But then who monitors that that is the case? That’s the difficulty. Who actually guarantees that the Court of Arbitration for Sport corresponds to that independent review? And I think that that is what the European Union needs to do. It needs to [establish] an independent regulator, an independent agency. Or at least, if it doesn’t do that then it needs to adopt a licensing system, for example. Or to impose through more or less assertive application of competition rules on sports bodies, on them to do it and to do it in a genuinely and effective way.
FELIX RONKES AGERBEEK: Yeah. You wrote: ‘Sport is an entry point to discuss what ought to be the soul of European integration.’ Can you something more about what you meant by that?
MIGUEL POIARES MADURO: You know me well, Felix, and you know my work and you know that, for many years, a core aspect of my academic work and even my professional work as an EU lawyer and a European integration expert has been on trying to highlight what I call the democratic added value of the European Union. The European Union increasingly needs to make more visible to its citizens where, instead of taking power away from them or their national governments or their Member States, it’s actually giving them power back to them. And sports is a particularly good example of that, because as we discussed it’s an example of private transnational governance that, on their own, individual Member States can no longer effectively control and regulate. So if we want to bring back under democratic accountability, under public scrutiny and supervision, sports in its social and economic dimension we can only do it through the European Union. So it’s a very good example of the kind of democratic added value that the European Union can bring to European citizens.
FELIX RONKES AGERBEEK: I think that’s nice place to end. So the final question: name three books that have influenced you and that you would like to recommend to the audience.
MIGUEL POIARES MADURO: I ended up deciding by choosing three books – two of them academic, one that is not – that are linked to law. One of them is Neil Komesar’s ‘Imperfect Alternatives’. It was really very important for my understanding of the law and how law operates. His basic thesis is that underlying most legal questions is a choice between institutions. Between markets and the political process. Between the political process and courts, for example. And that therefore courts should not ignore these institutional choices but instead, when they are interpreting legal rules, to be aware of that more or less implicit institutional choice that they are making. That is, if they are exercising a stricter degree of judicial review, it means that they are considering themselves in a better position than the political process to decide that issue, for example. So that has been in my view a very eye-opening book and one that has defined a lot of my legal analysis.
And the other one is ‘The Constitution of Europe’ by Joseph Weiler – another kind of mentor to me, aside from being today a very good friend. I think The Constitution of Europe encapsulates a lot of his thinking about EU law and really the crucial work that he has done was ‘The Transformation of Europe’ and that’s the core of that book. But what I think is remarkable is the way he uses the knowledge and the insights of different social disciplines to make us better understand what the law is and how it operates. In The Transformation of Europe he starts by this apparent paradox between, on the one hand, legal literature celebrating the success of European integration in the 70s with direct effect and supremacy, and political science literature on European integration at the same time for the same period of time pointing to the failure of European integration because of the extent to which the political process was frozen. And instead of seeing that as a contradiction he uses one to understand the other. Whether we agree with it or not, I think it is a remarkable way of using different disciplines by saying: well the reasons why the Member States accepted supremacy and direct effect and therefore the success of the constitutionalisation of European law was precisely because, at the same time, they were gaining more control of the political process of European integration. And therefore the reason why it was necessary at that moment in time for Member States to have more control of the political process of European integration was because they were becoming increasingly subject to the supremacy of EU law. And I think that’s a remarkable piece of legal analysis. It’s not only a very good work on European law, it’s a very good work on law – and how you can better understand the law by looking and making use of different social disciplines.
And the final book I suggest, it’s a novel, is ‘Justiz’ by Friedrich Dürrenmatt. It’s the story of this Swiss politician that enters into a restaurant and shoots someone. And he hires a young lawyer and he asks the young lawyer to develop his defence by looking at who could make sense to have committed that crime if it was not him. And as the young lawyer finds out that there was someone that had all the interest, made much more sense that this person had committed the crime, and because no-one could make any sense why had he committed the crime people start changing their perceptions. And this novel is basically a reflection on the extent to which we need to make sense even of the most senseless of things. And the extent, also, of how that may mislead us. That our brain always wants to find a narrative that fits. And that is extremely insightful I think about human nature. Also for law: legal arguments are much more effective when you construe them as a story that makes sense. And ‘Justiz’ is a reflection on that but also a reflection on how humans we always need to make sense of things, even when sometimes there may be no sense at all to make of a particular act.
FELIX RONKES AGERBEEK: That’s so true – and it’s a topic we could easily fill another podcast episode with.
MIGUEL POIARES MADURO: Indeed, Felix, indeed.
FELIX RONKES AGERBEEK: Miguel, many thanks. It’s always a pleasure to talk to you.
MIGUEL POIARES MADURO: Thank you so much.
MIGUEL POIARES MADURO: Sporting is playing today. In 45 minutes. So we better stick to the time! (Laughs)