Economic models of sports policy : to promote sports politically, legally and financially, should funding be directed towards entities or activities ?
Jacob KornbeckIn comparing economic models of sport policy, which options are most apt to further sport politically, legally and financially? Against the backdrop of the question set, an analytical tool will be proposed involving the cross-tabulation of two options, one targeting sporting entitities, the other sporting activities. A ‘traditional’ sport policy approach will be identified (targeting sports NGOs which may often have been prequalified to receive public funding) and compared with an ‘alternative’ approach based on open calls for proposals, neutral evaluations and continuous evaluation exercises with no distinction made between different civil society stakeholders. The same analytical framework will be applied, subsequently, to questionslinked to the recognition ofsport, then to questions pertaining to the funding ofsport by public authorities. The combined analysis of these two policy approaches will lead to policy reflections including on the role played by ‘soft law’.
Modèles économiques de la politique sportive : pour valoriser le sport politiquement, juridiquement et financièrement, faut-il cibler les entités ou les activités ?
Jacob KornbeckPour comparer les modèles économiques de la politique sportive, quelles options permettent au mieux de valoriser le sport politiquement, juridiquement et financièrement ? Dans cette optique, la présente contribution propose une grille analytique basée sur deux options, ciblant les entitéssportives ou les activitésrespectivement. Elle identifiera une approche « traditionnelle » à la politique sportive (ciblant les ONG sportives, souvent pré-qualifiées pour recevoir des financements publics), laquelle elle comparera à une approche « alternative » basée sur des appels à propositions ouvertes, des évaluations inopinées et des évaluations continues, sans distinguer entre les différentes parties prenantes de la société civile. La même trame de lecture analytique sera appliquée d’abord aux questions liées à la reconnaissance du sport, puis à celles qui relèvent de son financement par les pouvoirs publics. L’analyse combinée des deux approches politiques aboutira sur quelques réflexions d’ordre politique, y compris sur le rôle joué par le « droit mou » (soft law).
When public authorities aim to promote sport, they may decide to direct funding either towards specific entities or rather towards specific activities. This paper will discuss the concepts underpinning these two policy options, as well as some of their implications. The choice is one between the ‘traditional’ policy style, where public funds follow specific legal entities, and an ‘alternative’ style where funding is made available contingent upon compliance with a set of policy-related objectives, such as public health, participation, etc. While the ‘traditional’ approach allows funds to be distributed using simplified, largely discretionary procedures, the ‘alternative’ policy style requires open, transparent calls for proposals and evidence-based decisionmaking. In its English Bridge Union ruling, the CJEU held that, for the purpose of VAT exoneration, a sporting activity must present a high degree of physical activity. In ruling thus, the Court had chosen to set aside the opinion of AG Szpunar, who had recommended making exoneration contingent upon recognition of the sports organisations concerned by worldwide sports governing bodies (SGBs) such as the International Olympic Committee (IOC) SportAccord. That the Court chose the ‘physical activity’ criterion instead, is evocative of an approach closer to the ‘alternative’ policy option proposed in this paper, while the AG’s recommendation was far more in line with the ‘traditional’ sports policy style, where certain sporting NGOs typically enjoy a privileged, pre-qualitified status, in many cases based on a decades-long legacy. The national legal framework of France is another illustrative example of this regulatory approach, including because it effectively enshrines the monopolistic ‘one federation principle’, of territorial exclusivity, which SGBs have enounced and with which they expect their national members (SGBs organising their sport within their own country) to comply, including by enforcing it vis-à-vis their members (clubs, athletes). As part of a European Commission antitrust investigation, this principle was recently found incompatible with Art. 101 TFEU. The ‘alternative’ approach to public funding of sports does not present such compliance challenges, though it requires solid administrative practice. Such practice, in turn, requires standards which can be applied across the board, such as the 2008 EU Pysical Activity Guidelines. This document has formed the basis for an EU soft-law process, aimed at providing Health-Enhancing Physical Activity (HEPA), including, but not limited to, organised, competitive sports, to the entire population. The national sports policies of EU Member States are not always HEPA-based, as illustrated by the national legal framework of Denmark, which provides for the automatic channelling of important amounts of funding, generated mainly by sports lotteries, towards pre-determined heritage NGOs. Other examples of a non-HEPA sports policy style include the organisation of the Olympic Summer Games in Athens (2004) and London (2012), the FIFA World Cup in Germany (2006) or the UEFA Euro in Portugal (2004). These practices have come under criticism for draining public funds, which explains why the Sport Ministers of the UNESCO Member States (MINEPS V) (Berlin 2013) adopted a number of commitments aimed at limiting the negative effects of the bidding systems organised by international SGBs for awarding the right to host such events. Little evidence has been found, so far, which would suggest that the UNESCO text has had much impact. The fact the IOC recently decided (2017), to simultaneously award the 2024 Summer Games to Paris and the 2028 edition to Los Angeles appears to owe more to the withdrawal of three other candidates from their bids. Yet while explicit HEPA policies may not appear very effective prima facie, implicit HEPA effects can be deduced from recent competition law decisions, such as the General Court’s Hamr Sport and Magic Mountain rulings (both state aid). Still, the soft-law approach continues within the EU Council and has produced two follow-up reports of Member States’ progress. However, as these reports are based on Member States’ self-reporting, the exact effects of the reported measures may be questioned. The ‘traditional’ versus ‘alternative’ sports policy style thus remain a useful heuristic tool for analysing national legal frameworks, policies and practices alike. They may also be helpful in informing decisions taken under competition law.
