‘Sporting merit’ in European Union law

Abstract

‘Sporting merit’ played a central role in the judgments of the Court of Justice of the European Union (CJEU) in European Super League Company and Royal Antwerp, However, the concept has been undertheorised, and its role in the so-called ‘European sport model’ (‘ESM’) has been understudied. This article seeks to address this literature gap by understanding both the meaning and role of ‘sporting merit’ in EU law. It begins by analysing the Court’s use of ‘sporting merit’ in its recent case law, arguing that the concept has become a cornerstone of the ESM. It then attempts to conceptualise ‘sporting merit,’ arguing that there are two possible ways to define this concept: a ‘static’ one, which prioritises the reward of immediate sporting achievements; and a ‘dynamic’ one, which places a greater emphasis on the promotion of long-term competitive balance. To understand the respective implications of these definitions, this article then explores how sporting merit is approached in both Europe and the USA. It argues that, whereas the ESM places a greater emphasis on the ‘static’ understanding of sporting merit, its North American counterpart embraces a ‘dynamic’ approach thereto, for example through financial redistribution and through sport-related corrective mechanisms such as draft systems. Building on the above, this article queries whether – and if so how – such corrective mechanisms could be incorporated into the ESM; whether doing so would lead to a more coherent approach to the promotion of ‘sporting merit,’ and whether it would be more in line with Article 165 TFEU.