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ASSER International Sports Law Series

European
Sports Law
Collected Papers
2nd Edition

Stephen Weatherill
ASSER International Sports Law Series

For further volumes:

http://www.springer.com/series/8858
Stephen Weatherill

European Sports Law

Collected Papers

Second Edition

123
Stephen Weatherill
Somerville College
Oxford
UK

ISSN 1874-6926 ISSN 2215-003X (electronic)

ISBN 978-90-6704-938-2 ISBN 978-90-6704-939-9 (eBook)
DOI 10.1007/978-90-6704-939-9

Library of Congress Control Number: 2013955566

 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors 2014

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl

Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg

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Series Information
Books in the ASSER International Sports Law Series chart and comment upon the
legal and policy developments in European and international sports law. The
books contain materials on interstate organisations and the international sports
governing bodies, and will serve as comprehensive and relevant reference tools for
all those involved in the area on a professional basis.
The Series is developed, edited and published by the ASSER International Sports
Law Centre in The Hague. The Centre’s mission is to provide a centre of excellence
in particular by providing high-quality research, services and products to the
sporting world at large (sports ministries, international—intergovernmental—
organisations, sports associations and federations, the professional sports industry,
etc.) on both a national and an international basis. The Centre is the co-founder and
coordinator of the Hague International Sports Law Academy (HISLA), the purpose
of which is the organisation of academic conferences and workshops of international
excellence which are held in various parts of the world. Apart from the Series, the
Centre edits and publishes The International Sports Law Journal.

Series editors

Dr. David McArdle

e-mail: [email protected]

Prof. Ben Van Rompuy

e-mail: [email protected]

Marco A. van der Harst, LL.M.

e-mail: [email protected]

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www.sportslaw.nl
Foreword to the Second Edition

The 2009 Treaty of Lisbon corrected the apparent constitutional anomaly inherent
in EU sports law which saw the EU play a significant role in shaping how sport is
regulated in Europe without Treaty guidance informing how that should take
place. For the first time in its history, the EU is now constitutionally competent to
promote European sporting issues, ‘while taking account of the specific nature of
sport’. As competences go, Article 165 is rather soft but as this book so skilfully
explores, its significance lies in the recognition that European law exerts a con-
siderable influence on sporting practices and that this influence should be
respectful of, but not subservient to, the specific nature of sport. Fine words, but
how can EU law respect the autonomy and specificity of sport whilst ensuring that
sport, as with all other economic activities, operates within the limits of the law?
This question has generated much literature, none finer than the work presented by
Prof. Stephen Weatherill in this updated and expanded collection of his works.
Since he first began writing in this area in the ‘distant 1980s’, Weatherill’s
message has been consistent, persuasive and above all influential. His work reveals
not only a deep appreciation of the peculiarities, and commercial realities, of
modern sport but also a masterful dismantling of the widespread perception that
European law is so beset with rigidities as to render its application to sport
unworkable. Indeed, quite the reverse. Weatherill’s work, captured so brilliantly in
this book, has educated a generation of sports professionals, lawyers and aca-
demics on how the EU’s legal order has offered sport sympathetic treatment,
although as Weatherill highlights, not always in an entirely consistent way. Yet
Weatherill also reminds us that sport is not so special as to expect, or merit,
removal from legal scrutiny. Sport is not, and should not be, above the law. Again,
fine words, but how to deliver this sympathetic treatment within the limits of the
law? Weatherill’s treatment of the Meca-Medina doping litigation displays the
author’s prescience. Less than satisfied with the reasoning of the Court of First
Instance (now General Court) to dismiss the claim brought by two swimmers,
Weatherill presented an alternative vision of how to reconcile sporting practices
with EU law, a vision subsequently followed by the Court of Justice. Legal crit-
icism is empty if one cannot present a coherent alternative.
The Meca-Medina case, and Weatherill’s writing generally, reminds sports
bodies that their claim of autonomy is conditioned on the presentation of strong
arguments, the acceptance of good governance and coherent engagement with the

vii
viii Foreword to the Second Edition

various justificatory regimes located within the EU’s legal framework. In other
words, the realms of sport and EU law overlap but within that space the pecu-
liarities of sport can find comfortable accommodation. As is revealed in his later
work, this message remains even more germane following the entry into force of
Article 165. In short, Prof. Weatherill has provided sports bodies with an intel-
lectually robust and legally credible strategy for engaging with European law
rather than their traditional approach of denying, disputing and ignoring the
influence of Brussels and Luxembourg. Accessing legal advice of this quality is
beyond the financial means of most sports bodies. Buying this book is not a second
best option.
It is a tribute to Prof. Weatherill that his work in this area is of such importance
that a collected edition of his papers is considered necessary. It is therefore
remarkable, and hugely welcome, that this honour should now extend into a
second edition. I congratulate Steve and the T.M.C. Asser Press for continuing to
lead the development of this fascinating field of enquiry. I would also like to echo
the words of appreciation extended to Prof. Robert Siekmann by Jean-Louis
Dupont in the foreword to the first edition of this book. Professor Siekmann is
himself a remarkable pioneer of this discipline whose contribution, now his time at
the Asser International Sports Law Centre has drawn to a close, should be
acknowledged.

Ormskirk, Summer 2013 Richard Parrish

Foreword to the First Edition

I am deeply honoured and very pleased to have been invited by Dr Robert

Siekmann, the Director of the ASSER International Sports Law Centre in The
Hague, The Netherlands, to contribute this Foreword to Professor Stephen
Weatherill’s collection of writings on European Union law and sport. 1
We have one important thing in common: we are both, in our respective ways,
humble pioneers in this evolving field of law. He is a distinguished academic and I
am an enthusiastic practitioner. As such, we are, in a sense, in a symbiotic rela-
tionship. In practising before the European Court of Justice as a sports lawyer, I am
always pleased to draw on his insights and ideas in testing my arguments; and he,
of course, draws on the actual decisions of the Court itself, to provide a coherent
and critical legal analysis of how sport is being regulated at the European level and
a European sports law policy is emerging, despite the fact that the present Treaty
does not – at least as yet – contain any so-called ‘sport article’. For this reason –
and indeed many others – I very much welcome the opportunity that this book
offers me and others with an interest in sports law of being able to have access in
one place to his scholarship, insight and learned writings, which I am pleased to
acknowledge have contributed to my knowledge and understanding of the
development of European Union law in the field of sport. As a lawyer practising in
the civil law tradition, I would remind readers of the fact that the opinions of
textbook writers and academics, such as Stephen Weatherill, are one of the sources
of the law – and an important one at that!
I would also like to congratulate Robert Siekmann, who is also a pioneer in the
field of international sports law, having set up and continuing to lead with dis-
tinction the International Sports Law Centre at the prestigious T.M.C. Asser
Institute in The Hague, for having had the constructive idea for this book and
organising its publication through Philip van Tongeren, Publisher of T.M.C. Asser
Press. And, last, but by no means least, I would like to salute and warmly
congratulate Stephen Weatherill for providing us with such interesting, thought-
provoking and compelling reading.

1
The first edition was realised with the cooperation of the International Olympic Committee and
FIFPro.

ix
x Foreword to the First Edition

This book will, I am sure, quickly establish itself as a leading work on European
law and sport and become a vademecum for all those involved in a variety of ways
and functions, as administrators, managers, researchers, academics, marketers,
broadcasters, advisers and practitioners, in the exciting field of international sport
and the ever unfolding challenge s that the interface between European Union law
and sport provides in daily life, especially now that sport is big business
accounting for 2 per cent of the combined gross national product of the enlarged
European Union of 27 Member States.

Belgium, March 2007 Maître Jean-Louis Dupont

Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Stephen Weatherill

2 Discrimination on Grounds of Nationality in Sport . . . . . . . . . . . 21

Stephen Weatherill

3 European Football Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Stephen Weatherill

4 Annotation [Bosman Case] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Stephen Weatherill

5 0033149875354: Fining the Organisers of the 1998 Football

World Cup. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Stephen Weatherill

6 Sports Under EC Competition Law and US Antitrust Law . . . . . 149

Stephen Weatherill

7 The Helsinki Report on Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

Stephen Weatherill

8 Resisting the Pressures of ‘Americanization’: The Influence

of European Community Law on the ‘European Sport Model’. . . 177
Stephen Weatherill

9 ‘Fair Play Please!’: Recent Developments in the Application

of EC Law to Sport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Stephen Weatherill

10 Sport as Culture in EC Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

Stephen Weatherill

xi
xii Contents

11 Anti-Doping Rules and EC Law . . . . . . . . . . . . . . . . . . . . . . . . . 283

Stephen Weatherill

12 Is the Pyramid Compatible with EC Law? . . . . . . . . . . . . . . . . . 295

Stephen Weatherill

13 The Sale of Rights to Broadcast Sporting Events

Under EC Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Stephen Weatherill

14 Anti-doping Revisited: The Demise of the Rule

of ‘Purely Sporting Interest’? . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Stephen Weatherill

15 On Overlapping Legal Orders: What is the ‘Purely

Sporting’ Rule? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Stephen Weatherill

16 The White Paper on Sport as an Exercise

in ‘Better Regulation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
Stephen Weatherill

17 The Influence of EU Law on Sports Governance . . . . . . . . . . . . . 443

Stephen Weatherill

18 Article 82 EC and Sporting ‘Conflict of Interest’:

The Judgment in MOTOE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
Stephen Weatherill

19 The Olivier Bernard Case: How, if at all, to Fix

Compensation for Training Young Players? . . . . . . . . . . . . . . . . 485
Stephen Weatherill

20 Bosman Changed Everything: The Rise of EC Sports Law . . . . . 497

Stephen Weatherill

21 EU Sports Law: The Effect of the Lisbon Treaty . . . . . . . . . . . . . 507

Stephen Weatherill

22 Fairness, Openness and the Specific Nature of Sport:

Does the Lisbon Treaty Change EU Sports Law? . . . . . . . . . . . . 527
Stephen Weatherill
Contents xiii

23 Is There Such a Thing as EU Sports Law? . . . . . . . . . . . . . . . . . 543

Stephen Weatherill

24 Engaging with the EU in Order to Minimise Its Impact:

Sport and the Negotiation of the Treaty of Lisbon . . . . . . . . . . . . 555
Stephen Weatherill
Abbreviations and Acronyms

AG Advocate General
BAF British Athletics
CMLR Common Market Law Reports
CMLRev. Common Market Law Review
CAS Court for Arbitration for Sport
CFI Chamber of the Court of First Instance of the Court of Justice of the
European Communities
CFO Comité Français d’Organisation de la Coupe du Monde de Football
DG Directorate-General
ECLR European Competition Law Review
ELRev. European Law Review
ETS European Treaty Series
EBU European Broadcasting Union
ECHR European Convention on Human Rights
ECJ Court of Justice of the European Communities
ECR European Court Reports
ECSC European Coal and Steel Community
EEA European Economic Area
EEC European Economic Community
EP European Parliament
ESF European Social Fund
EU European Union
FFF Fédération Française de Football
FIA Fédération Internationale d’Automobile
FIBA International Basketball Federation
FIFA International Association Football Federation
FIFPro Fédération International de Footballeurs Professioneis
FINA Fédération Internationale de Natation
Fn. Footnote
IAAF International Association of Athletics Federations
IIHF International Ice Hockey Federation

xv
xvi Abbreviations and Acronyms

IOC International Olympic Committee

IRB International Rugby Board
ITC Television Independent Television Commission
J Judge
MEP Member of the European Parliament
OJ Official Journal
RPC Restrictive Practices Court (UK)
S Section
SEA Single European Act
UCI Union Cycliste Internationale
UEFA Union of European Football Associations
WADA World Anti-Doping Agency
WLR The Weekly Law Reports
Chapter 1
Introduction

Contents

1.1 Where Lies the Interest in ‘EU Sports Law’? ................................................................ 2

1.2 The European Court of Justice Sets the Scene ............................................................... 3
1.3 The Papers Contained in this Book................................................................................. 6
1.4 Concluding Remarks ........................................................................................................ 18
References.................................................................................................................................. 20

I am immensely flattered and honoured that the Asser Instituut has undertaken to
publish a collection of my writing in the area of EU law and sport, and I am
delighted to see it move into a second and extended edition. I thank the Asser
Instituut most warmly for this generous mark of approval. I am delighted too to be
given this opportunity to write a short Introduction designed to sketch just why I
have always found this area to be intellectually rewarding. ‘Sport and the law’ is,
for sure, something of a niche interest – though, thanks to Jean-Marc Bosman (and
Jean-Louis Dupont too) it is a good less esoteric to claim an interest in sport and
the law today than it was back in the distant 1980s when I first grappled with the
complexities – but it is one that repays the investment of time and energy.
Researching the field tells us something about sport, of course. But it tells us
something about EU law too. Examination of the special character of sport when
placed under EU law’s microscope reveals the scope of EU trade law’s adapt-
ability to the particular context in which it is applied. And the story of EU sports
law told through the case law illuminates the way in which EU law is exploited by
actors as a lever to prise open sometimes long-established organisational patterns.
Sport has in recent years become more commercialised and more juridified too.
The challenges to its self-regulatory preferences have strengthened, and EU law
plays a significant part in this narrative. But how to assess the quality of the EU’s
contribution? That has been an abiding concern for me.

S. Weatherill, European Sports Law, 1

ASSER International Sports Law Series, DOI: 10.1007/978-90-6704-939-9_1,
 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors 2014
2 1 Introduction

1.1 Where Lies the Interest in ‘EU Sports Law’?

What began life as the EEC Treaty and became in 1993 the EC Treaty does not
refer to sport at all. The EEC, later the EC, was therefore not constitutionally
competent to adopt legislation with the explicit aim of regulating sport. But the
Treaty contains provisions that exert a broad control over the functioning of the
whole economy. These include, most significantly, the provisions on free move-
ment of persons and services and the rules on competition. Since sport has an
economic dimension, sporting practices fall within the broad scope of the Treaty.
Therefore sporting practices must comply with these Treaty rules. In this way EU
law has overlapped with ‘internal’ sports law.
Today we deal with the EU, not the EC, and we must reckon with the Treaty of
Lisbon, which entered into force on 1 December 2009. It has, at last, brought sport
within the explicit scope of the Treaty. It is the subject of comment towards the
end of this Introduction, and of new papers added into this second edition. But the
Treaty of Lisbon has not made any fundamental change in substance, and it
emphatically does not offer any sort of binding or comprehensive code. EU sports
law is still an ambiguous creature and its shape has been moulded incrementally
over many years, long before the rise of the Treaty of Lisbon.
It is the complex and ambiguous confluence between sporting practices and EU
law that has long stimulated my interest in this field. How legitimate is the EU’s
claim to subject sporting practices to the rules of the Treaty given that the Treaty
offers no guidance on the extent to which sport’s distinctive features should inform
the legal analysis? How legitimate are the frequent appeals of sports federations to
be permitted autonomy from legal intervention given that their decisions fre-
quently carry significant economic implications? In fact, the rapid increase in
recent years in the commercial significance of the sports sector, driven in part by
the technological and regulatory re-shaping of the broadcasting industry, has
brought with it ever more intense scrutiny of the role of law in influencing the
choices available to sports governing bodies.
My general feeling is that EU trade law should not be applied to sport in a way
that neglects sport’s undoubted special characteristics. For example, clubs in a
professional League are not competitors of the type found in normal markets.
Sports clubs need opponents – they need credible rivals. There is a pattern of
interdependence among clubs in a League which marks out organised sport as
culturally and economically distinct from sausage-making. Sport is, in some
respects, a special case, and the law should respect that, or else suffer justified
criticism for insensitive mishandling of the subject-matter. On the other hand I
have never been able to accept that sport is quite as special as is sometimes
claimed by sports federations. That is, I cannot accept that the mere fact that a
practice with economic implications is located in the sports sector is sufficient to
entitle it to immunity from legal control. Nor can I easily hide my occasional
frustration at the airily uncritical claims of those engaged in sports governance that
things are best done as they always have been done. So I have always favoured a
1.1 Where Lies the Interest in ‘EU Sports Law’? 3

model which embraces an inevitable intersection between the EU’s legal order and
sports governance – that is, one according to which sport is subject to EU law but
in which sport’s special features are relevant to the legal analysis. The interest for
me then lies in deciding just where sport has a convincing claim to special
treatment at law which recognises its special social and economic characteristics
and where, by contrast, sports bodies are engaged in self-serving defence of a
status quo which deserves no place in modern life. Sport is special. But how
special?

1.2 The European Court of Justice Sets the Scene

Three major judgments of the European Court of Justice demonstrate an evolution

in the Court’s own depiction and understanding of the issues at stake. My writing
is by no means confined to the practice of the Court, for the challenge of under-
standing EU law and policy as it affects sport necessarily demands that account be
taken of the Commission and more generally of the range of public and private
actors who exploit the EU tier of governance in order to promote their interests and
who, in doing so, frequently induce adaptation in existing national, international
and predominantly self-regulatory patterns of sports governance. But the Court’s
judgments serve to structure much of the debate and the analysis. And they illu-
minate the awkward tensions involved in shaping EU sports law and policy.
In Walrave and Koch v. Union Cycliste Internationale the Court treated the
composition of national sports teams as unaffected by the (then EEC) Treaty’s
prohibition of nationality-based discrimination where their formation is ‘a question
of purely sporting interest and as such has nothing to do with economic activity’.1
The result was understandable. There is simply no international representative
football without restrictions on selection policies – a Dutch football team made up
of Germans or Scots or Peruvians is no Dutch team at all. Rules relating to
nationality define the very nature of the enterprise. But the Court, in showing
respect for the nature of the sport, employed a poorly crafted legal formula. Its
reference to ‘a question of purely sporting interest’ which ‘as such has nothing to
do with economic activity’ is unhelpful. Clearly selection rules governing inter-
national representative football are of sporting interest. But – equally clearly, I
think – such rules have plenty to do with economic activity. International football
is big business – players enhance their profile and popularity, and therefore their
earning potential, depending on their exposure as international footballers. In
reality the spheres of sport and economics commonly overlap, for most sporting
rules are of sporting interest and they also exert an economic impact. What is
really at stake is not a group of sporting rules and a separate group of economic
rules, but rather a group of sporting rules which carry economic implications and

1
Case 36/74 [1974] ECR 1405.
4 1 Introduction

which therefore fall for assessment, but not necessarily condemnation, under EU
trade law. This is the core of my thesis that EU law and ‘internal’ sports law
cannot be kept separate.
Walrave and Koch introduced an unfortunate claim to a separation between the
sporting and the economic sphere, while also accepting that sport’s special
expectations could be taken into account in the application of EU law. The second
landmark decision, Bosman, is thematically similar.2 The Court referred to the
problem in drawing attention to ‘the difficulty of severing the economic aspects
from the sporting aspects of football’. But it did not offer a clear solution.
[T]he provisions of Community law concerning freedom of movement of persons and of
provision of services do not preclude rules or practices justified on non-economic grounds
which relate to the particular nature and context of certain matches.

The Court is in general terms accepting there is an area of sporting autonomy

free of interference by EU law, but the precise nature and purpose of these ‘non-
economic grounds’ is not easy to discern. However, as in Walrave and Koch, the
Court in Bosman, though unwilling to rule out the possibility in principle of
sporting practices falling foul of the Treaty, was prepared to discover scope for the
promotion of sport’s special concerns. It stated that
In view of the considerable social importance of sporting activities and in particular
football in the Community, the aims of maintaining a balance between clubs by preserving
a certain degree of equality and uncertainty as to results and of encouraging the recruit-
ment and training of young players must be accepted as legitimate.3

The Treaty offers nothing that points explicitly in this direction. It did not at the
time even mention sport and even today, since the entry into force of the Lisbon
Treaty, the relevant provision (Article 165 TFEU) offers nothing sufficiently
concrete to resolve this type of dispute. But the Court, while finding that the
particular practices impugned in Bosman fell foul of EU law, showed itself
receptive to an interpretative approach which in effect writes into EU law an active
recognition of the special features of sport.
The third landmark case offers a clearer and intellectually more satisfying
explanation of the relationship between sporting rules and EU law, while main-
taining the thematic receptivity to sport’s special concerns in the application of EU
law. It is Meca-Medina and Majcen v. Commission, a decision of July 2006.4 The
applicants, professional swimmers who had failed a drug test and been banned for
two years, had complained unsuccessfully to the Commission of a violation of the
Treaty competition rules. The CFI rejected an application for annulment.5 So did
the ECJ. But whereas the CFI attempted to insist that anti-doping rules concern
exclusively non-economic aspects of sport, designed to preserve ‘noble

2
Case C-415/93 [1995] ECR I-4921.
3
Para. 106.
4
Case C-519/04 P judgment of 18 July 2006.
5
Case T-313/02 [2004] ECR II-3291.
1.2 The European Court of Justice Sets the Scene 5

competition’,6 the ECJ instead stated that ‘the mere fact that a rule is purely
sporting in nature does not have the effect of removing from the scope of the
Treaty the person engaging in the activity governed by that rule or the body which
has laid it down’.7 And if the sporting activity in question falls within the scope of
the Treaty, the rules which govern that activity must satisfy the requirements of the
Treaty ‘which, in particular, seek to ensure freedom of movement for workers,
freedom of establishment, freedom to provide services, or competition’.8 This
abandons the notion of the ‘purely sporting rule’ which has an economic effect yet
automatically falls out with the reach of the Treaty. The equivocation of Walrave
and Koch is set aside. A practice may be of a sporting nature – and perhaps even
‘purely sporting’ in intent – but it must be tested against the demands of EU trade
law where it exerts economic effects. But the Court did not abandon its themati-
cally consistent readiness to ensure that in the application of EU law sport’s
special concerns should be carefully and sensitively fed into the analysis. It took
the view that the general objective of the rules was to combat doping in order for
competitive sport to be conducted on a fair basis; and the effect of penalties on
athletes’ freedom of action must be considered to be inherent in the anti-doping
rules. The Court will not place such practices beyond the scope of judicial review
as a matter of principle, but it is appropriately wary of questioning the expertise
practised by sports federations in such sensitive realms. These are sporting rules –
not purely sporting rules – and they are examined under an interpretation of EU
law which is sensitive to sport’s special concerns for inter alia clean competition.
I am not suggesting that this arrival at a model which embraces overlap between
EU law and ‘internal’ sports law solves all problems. My argument is only that
Meca-Medina focuses attention in the right direction. Previous practice, initiated
by Walrave and Koch, has tended to generate unhelpful arguments about whether a
practice is purely sporting in nature, and therefore immune from challenge under
EU law. I have never believed this to be a helpful starting-point. Better to accept
that the vast majority of sporting practices have economic implications but then to
apply EU law to them with appropriate respect for the particular sporting context
in which they are used. In Meca-Medina the Court has taken a broad view of the
scope of EU trade law, but having brought sporting rules within the scope of the
Treaty it shows itself readily prepared to draw on the importance of matters not
explicitly described as ‘justifications’ in the Treaty in order to permit the continued
application of challenged practices which are shown to be necessary to achieve
legitimate sporting objectives and/or are inherent in the organisation of sport. That,
then, becomes the core of the argument when EU law overlaps with sports gov-
ernance: can a sport show why prejudicial economic effects must be tolerated? As
the Court put it in Meca-Medina, restrictions imposed by rules adopted by sports
federations ‘must be limited to what is necessary to ensure the proper conduct of

6
Para. 49 CFI.
7
Para. 27 ECJ.
8
Para. 28 ECJ.
6 1 Introduction

competitive sport’.9 This is a statement of the conditional autonomy of sports

federations under EU law – an overlap between EU law and ‘internal’ sports law is
recognised but within that area of overlap sporting bodies have room to show how
and why the rules are necessary to accommodate their particular concerns – fair
play, credible competition, national representative teams, and so on. The result of
Meca-Medina itself demonstrates that the sporting expertise informing (in casu)
anti-doping inquiries will not lightly be set aside by judges.

1.3 The Papers Contained in this Book

In this vein a strong message of much of my work holds that sporting practices
typically have an economic effect and that accordingly they cannot be sealed off
from the expectations of what was EEC law, became EC law (between 1993 and
2009) and is now EU law – but within the area of overlap between EU law and
‘internal’ sports law there is room for recognition of the particular needs of sport,
which may admittedly differ from ‘normal’ industries. Meca-Medina, I think,
conforms to this pattern, and I welcome it. But I have long sought to make a more
general case in my writing that a claim to unconditional sporting autonomy under
EU law lacks intellectual appeal, unless it can be shown that EU law’s absence of
sports-specific material in its Treaty has led to an insensitive application of the law
which washes over sport’s legitimate interests. I have not been able to detect this.
Quite the reverse. In fact the Court and the Commission have been scrupulous in
ensuring that the special features of sport play a part in their interpretation and
application of EU law. Sometimes they are profoundly unimpressed by the
arguments advanced by sporting bodies. Sometimes they accept their force in
principle while rejecting their relevance in the particular circumstances. Some-
times they are open to persuasion. But never is sport treated like sausage-making
by the institutions of the EU.
I felt rather lonely when I wrote ‘Discrimination on Grounds of Nationality in
Sport’.10 More than a decade had passed since the landmark decisions of the
1970s, Walrave and Koch the first of them,11 which had established that what was
then the EEC Treaty is in principle applicable to sport. Bosman was not even a
speck on the horizon. Using (what is now) EU law to challenge sports practices
seemed to lack practical relevance. Who would risk taking the slow route to court
and risk exclusion from the fast-moving world of sport? My interest in writing the
article published in 1989 was largely driven by the appreciation that sport offers a
testing ground for an oddity in the structure of EU trade law. That is to say, I was
using sport to try and develop a better understanding of EU law, rather than taking

9
Para. 47 ECJ.
10
Weatherill 1989.
11
Note 1 above.
1.3 The Papers Contained in this Book 7

sport as the main focus of inquiry. The legal conundrum centres on practices of
private parties which create distortions in the labour market, in particular those that
are discriminatory on grounds of nationality. They could be dealt with under (what
is now) Article 45 TFEU. They could be dealt with under (what are now) Articles
101 and 102 TFEU. If dealt with under both provisions, how could one cope with
the clashes between the distinct assumptions of competition law and free move-
ment law? After all, in markets for goods, Article 34 TFEU controls the acts or
omissions of public authorities (only), leaving Articles 101 and 102 TFEU to
deal with private practices, so the labour market seems to be worryingly
‘over-regulated’ by EU law. My overriding concern was the scope of justification,
which, as far as I could, see was different (and broader) under the competition rules
than under the free movement rules. I did not advocate a demarcation between the
two. Instead I argued that the restrictive labour practice is a curious creature which
does not fit comfortably into the structure of the Treaty and I argued that a blended
justification test should be devised.
Achieving this blend is, I think, more or less what the Court has subsequently
done – though even now the matter lacks authoritative judicial guidance. I returned
to the issue as recently as 2006, because in my view the Meca-Medina ruling on
anti-doping is best understood against a background which assumes that practices
of sports bodies that are necessary for the organisation of the game are legitimate
and lawful whichever provision of EU trade law they are tested against.12 Were it
otherwise, the Treaty system would be exposed as incoherent.
My 1989 paper on Discrimination on Grounds of Nationality contains ‘Con-
cluding Remarks’ which open with the observation that ‘The organisation of
football appears to be on a collision course with more than one area of the Treaty
of Rome’. But I could hardly have imagined just how loud the collision would
prove to be. The particular matter of discrimination in club football, which helped
to structure the argument in my 1989 paper, allowed me to reflect on the extent to
which such discrimination may be regarded as necessary to sustain professional
leagues at national level. And the matter was, of course, vigorously addressed by
the Court in Bosman,13 the case that once and for all shattered the notion that EU
law and sport mix in academic writing but never in practice.
The Annotation of the Bosman case14 took as its purpose to reflect on the
content of the judgment itself and to consider its impact from the perspective of
both sport and EU law. The Annotation covers the litigation itself and the outcome
of the case – the finding that the transfer system under challenge and nationality-
based discrimination in club football were incompatible with EU law. It also (more
ambitiously) seeks to look forward to outstanding issues, some of which had been
aired already in my 1989 paper in the Yearbook of European Law, and to reflect on
how much deeper into sporting autonomy EU law might be subsequently shown to

12
Weatherill 2006A.
13
Note 2 above.
14
Weatherill 1996.
8 1 Introduction

reach. I considered the use of EU law to challenge transfer systems within a single
Member State, reliance upon EU law by nationals of States that are not members
of the EU and its invocation even in cases of players who are contracted to a club
which they wish to leave, rather than players, like Bosman himself, who are out of
contract. These issues have duly been the subject of litigation and consequent
alteration in sporting practice. I concluded the Annotation in the Review by
doubting that sport could or should be exempted from the scope of EU law. It has
not been exempted, and I remain of the view that the case for such exemption lacks
intellectual strength.
In ‘European Football Law’15 I took the opportunity to develop some of the
ideas advanced in my Annotation of the Bosman case and to situate them in the
broader structure of the development of EU trade law. It is also a piece in which, in
the Conclusion, I am able to reflect on an abiding theme: aghast sports bodies
commonly declare that litigation will destroy their sport. But it doesn’t. The paper
was based on the classes I gave on ‘European Football Law’ at the Summer Course
of the European University Institute, on the hills outside Florence, and it allowed
me an early opportunity to appreciate just how appealing the mix of sport and the
law is to students. One reason, and from a sternly intellectual perspective not a
very good one, is that sport is vivid and generates passion. A better reason, I think,
is that sport presents unusual challenges for the law. It is ‘special’. How special?
My piece on the sale of tickets for the 1998 Football World Cup was published
as ‘0033149875354: Fining the Organisers of the 1998 Football World Cup’.16 It
reveals a case where in my view the Commission Decision consists of a proper
refusal to find sports-specific justification. This was a case of nationality-based
discrimination, a blatant violation of the basic principles of EU law. But even here,
in an instance of egregious violation of a fundamental principle of EU law, the
Commission imposed a penalty which reflected its concern to take account of the
concerns of sport. By imposing only a symbolic fine, amounting to € 1000, the
Commission explained that it took the view that the circumstances were not
adequately covered by existing practice, which had not directly concerned sporting
events, and that therefore it would show leniency. My article reveals reasons for
supposing that the Commission’s own acquiescence in the unlawful practices
might have contributed to its reticence to impose a heavier fine. It is not an
edifying tale.
In ‘Sports under EC Competition Law and US Antitrust Law’,17 I engaged in
debate about the proper application of EU competition law to sport. Bosman
famously involved the application of the free movement provisions to sport, and
the Court carefully avoided examination of the Treaty competition rules. Advo-
cate-General Lenz was not so reticent and nor was I in my Annotation of the case
in the Common Market Law Review (CML Rev.), mentioned above. By the time

15
Weatherill 1999.
16
Weatherill 2000A.
17
Weatherill 2000C.
1.3 The Papers Contained in this Book 9

this paper was written the Commission was faced with an increasing number of
complaints about alleged anti-competitive practices in the sports sector and it was
plain that there was a pressing practical need to understand how the special fea-
tures of sport – organisational solidarity, scrupulous preservation of uncertainty as
to result – affected the handling of what were Articles 81 and 82 EC (now Articles
101 and 102 TFEU). The paper was presented to the Annual Conference on
Competition Law held at Fordham University in New York, one of the most, if not
the most, high-profile competition law events staged anywhere, which itself
demonstrates how hot a topic the intersection of EU competition law and sport had
rapidly become.
The 1999 Helsinki Report represents an important attempt by the Commission
to step beyond the accidents of litigation and instead to shape a framework for
understanding how and why EU law applies to sport. I wrote about it in ‘The
Helsinki Report on sport’.18 A core aim of the Helsinki Report is to help to clarify
the law. In that, it is not unsuccessful. In particular, its attempt to separate out
categories of practices that are outside the reach of EU law (as ‘the rules of the
game’) from those which are within its scope (though not necessarily incompatible
with it) is a helpful starting-point. And the Report’s assertion that ‘the basic
freedoms guaranteed by the Treaty do not generally conflict with the regulatory
measures of sports associations, provided that these measures are objectively
justified, non-discriminatory, necessary and proportional’ is about right in my
judgement, though of course it does not set aside the need to conduct detailed
examination of just when one might find sporting practices to be supported by
objective justification et al. The Helsinki Report did not stop at the Treaty com-
petition rules. The Commission recognised the social and educational functions of
sport and expressed concern that increasingly ferocious commercialisation of the
sector may damage these virtues. It identified a ‘European Model of Sport’, based
on inter alia vertical solidarity between sport’s elite and the grass-roots, promotion
and relegation, and, broader still, concern to improve health and to combat social
exclusion, xenophobia and intolerance. I have at least two anxieties about the
Commission’s thinking. First, that to make such claims is to adopt a worryingly
homogenous view of sport. Professional sport and recreational sport are very
different in structure and motivation, and to bind them together as part of a single
model may be an exercise in wishful thinking. Second, the EU lacks competence
to develop law and policy in these broad fields. The Commission, adopting the
discourse of cultural renewal, is in danger of generating expectations that it cannot
meet.
In ‘Resisting the Pressures of Americanization: the influence of European
Community Law on the ‘European Sport Model’,19 I sought to develop my
thinking about the ‘European Model of Sport’ advanced by the Commission in the
Helsinki Report. The paper focuses on the underpinning assumption that Europe is

18
Weatherill 2000D.
19
Weatherill 2000B.
10 1 Introduction

significantly different in its approach to sport from North America. From ‘draft
picks’ to closed leagues to vast salaries, Europe has a long way to catch up – and
the Commission strongly believes that not only should it not try to catch up it
should not even seek to run the same race. The paper examines the legal issues at
stake in these competing ‘models’ of sport. It concludes by reflecting that while the
Commission is plainly concerned that EU law should not propel European law
down the American path it lacks powerful tools to prevent moves in such a
direction. Moreover, there are hints that some actors in European sport are tempted
by American models. Whispers of ‘breakaway leagues’ are as common today as
they were when this paper was written, and it is likely that the ‘European Model of
Sport’ will come under increasing pressure in the years to come.
My paper ‘Fair Play Please!: Recent Developments in the Application of EC
Law to Sport’20 was prepared at the invitation of the editors of the Review. It is
designed as an overview of Court and Commission practice in the field of sport,
and it attempts to provide a thematic account of the principal concerns that animate
EU law- and policymaking in the field, against the familiar background acceptance
that the EU Treaty is deficient in sports-specific material. Most of all, the article
uses case law – on agents, on club ownership, on transfers, on broadcasting and so
on – to explore that most basic of questions, that which asks how special sport
really is. It also moves on to reflect on the ‘wider terrain’ of a policy on sport. Both
the Commission, in its depiction of a ‘European Model of Sport’, and national
political elites, in adopting the Amsterdam and Nice Declarations on Sport, display
anxiety to make more of EU sports policy than economics alone. The problem
which I identify lies in the absence of a comprehensive legal competence vested in
the EU’s institutions to act in such broader realms. I doubt it is sensible for the EU
to set itself up as an arena in which sport’s wider social and cultural virtues can be
comprehensively addressed when the constitutional reality is otherwise – as is still
is today, even after the entry into force of the Lisbon Treaty.
Is sport ‘cultural’? I think it is. But what does this mean in law? In ‘Sport as
Culture in European Community Law’21 I took the opportunity to develop further
some of the thinking directed at ‘sport’ as a heterogeneous legal and cultural
phenomenon that I had pursued in earlier papers mentioned above. This contri-
bution to a book on EU law and culture critically examines the transfer system in
football and the regulation of sale of broadcasting rights from the perspective of
the claim that ‘sport is special’ and that it therefore deserves special protection
from the normal assumptions of EU law. At stake is sport’s claim to benefits
consequent on legal immunity. The paper then examines the ‘protected events’
legislation – which affects the freedom of sports bodies to sell rights to the highest
bidder where particularly high-profile events are involved. Here I find that sport is
special in that it is asked to shoulder burdens which would not be imposed on a
‘normal’ industry. The rationale behind the ‘protected events’ legislation is

20
Weatherill 2003.
21
Weatherill 2004.
1.3 The Papers Contained in this Book 11

obscure but it clearly reveals and reflects the unusual cultural prominence of sport.
The paper concludes with further expression of my anxiety that the attempts of the
EU’s institutions, most prominently the Commission, to shape a policy for sport
that is infused by social and cultural concerns tend to strain the outer edges of EU
competence, and, in so far as the Commission lacks the legal and material
resources to make good its promises, I find risks that the EU’s legitimacy may be
damaged.
‘Anti-doping rules and EC Law’22 criticises the Court of First Instance’s
decision in David Meca-Medina and Igor Majcen v. Commission. I mentioned the
case above.23 The CFI (today known as the General Court) dismissed an appli-
cation for the annulment of a Commission decision rejecting a complaint against
the compatibility with EU trade law of doping controls practised by the Interna-
tional Olympic Committee. But in doing so it adopted an approach to the auton-
omy of sports federations which seemed to me to go far beyond the existing state
of EU law and beyond what is wise. Most of all, the CFI took the view that anti-
doping rules of an excessive nature would escape review pursuant to competition
law provided that they remained limited to their proper object. This is contra-
dictory in the sense that an excessive rule would by definition not be so limited. I
developed the argument that a superior approach would be provided by reliance on
the Court of Justice’s decision in Wouters.24 That is not a case concerning sport.
But it is a ruling in which the Court insisted that a constraint on competition is
unaffected by Article 81 EC (now Article 101 TFEU) where it is unavoidably
required to sustain the functioning of an arrangement which is unobjectionable in
the light of EU law. That, it seems to me, is the way to approach anti-doping rules.
They have an economic effect. But are they necessary for the pursuit of sport? Yes
– if confined to a basis for the imposition of proportionate sanctions. My broad
concern was to connect EU competition law’s application to sport to general trends
in EU competition law, rather than to follow the CFI’s approach which produces a
peculiar generous niche in which sporting practices can hide.
The organisational structure of football is shaped like a pyramid. I considered
this in ‘Is the Pyramid Compatible with EC Law?’.25 FIFA, the world governing
body, sits at the apex. Beneath FIFA lie the continental associations – in Europe,
UEFA. On the next level down are found the national associations. And then come
the professional clubs, along with other interested actors within individual coun-
tries, the ‘grass roots’ which include regional associations and amateur bodies.
Clubs have a voice via their national associations. The richer clubs want a louder
voice and a more direct involvement in the decision-making process. The tension
that runs through this pyramid structure is created by the conflict of interest held

22
Weatherill 2005A.
23
Case T-313/02 note 5 above.
24
Case C-309/99 J.C.J. Wouters, J.W. Savelbergh, Price Waterhouse Belastingadviseurs BV v.
Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECR I-1577.
25
Weatherill 2005B.
12 1 Introduction

by the governing bodies. The pyramid makes obvious sense as a means to arrange
decision-making on the rules of the game. But it is a good deal more controversial
in so far as commercially sensitive decisions emerge from the process. Consider
setting the international fixture calendar or requiring the release of players for
international duty. Clubs are increasingly frustrated by their perception that they
have too little input into decisions of this type which have a direct impact on their
business. And they are increasingly ready to go to law. The paper discussed the
Oulmers/Charleroi case on player release, which had the potential to be the next
high-profile sport-related decision of the European Court26 - although, sadly for
the academic lawyer, it was ultimately settled out of court. The issue at bottom is
one of governance. Can the pyramid survive in its current form or will the law be
used to require a redistribution of functions, involving a separation between reg-
ulatory and commercial activities of sports federations? I doubt the pyramid can be
sustained unaltered. It allocates too much commercial power to the federations in
circumstances of conflict of interest between their commercial and regulatory
functions. But the pyramid is durable – the settlement in Oulmers/Charleroi
included a louder voice for the clubs in UEFA, and the dismantling of the ‘G14’
group, but the basic shape of pyramid was not changed. Governance reform
generally comes slowly in sport – although, as tennis and cricket have in the past
demonstrated, revolution is not unknown.
In writing ‘The sale of rights to broadcast sporting events under EC law’27 I was
particularly concerned to take the opportunity to connect the important depiction
of the detail of the law with the broader thematic literature about the possibilities
and limitations of describing an EU ‘policy’ in a field where the Treaty does not
provide a comprehensive mandate. The paper accordingly traverses important
issues of competition law and policy pertaining to inter alia the permitted scope of
sale of broadcasting rights on an exclusive basis and arrangements for collective
buying and selling of broadcasting rights. The law develops with necessary
appreciation of the extraordinary changes in the technological and regulatory
structure of the broadcasting sector. When I first began to write about the appli-
cation of EU law to sport I had no need to think about unbundling of packages to
allow sale of internet rights, for example, nor indeed to think beyond traditional
free-to-air media as the place to watch televised football. But the paper also
reflects on how other areas of EU trade law, beyond sport, demand an infusion of
concerns poorly mapped out by the Treaty. EU health care law, EU consumer law
and EU labour law, for example, are shaped by the intersection of the rules of trade
integration and the values promoted in these sectors by national policymakers.
Sport is not intellectually unique in the challenge it presents to those seeking to

26
Pending Case C-243/06, lodged 30 May 2006 – SA Sporting du Pays de Charleroi, G-14
GrOxford University Pressement des Clubs de Football Européens v. Fédération Internationale
de Football Association (FIFA).
27
Weatherill 2006B.
1.3 The Papers Contained in this Book 13

understand how its special features affect the interpretation and application of EU
trade law.
In ‘Anti-doping revisited – the demise of the rule of ‘purely sporting inter-
est’?’28 I addressed the ECJ’s handling of the appeal in the anti-doping case,
Meca-Medina and Majcen.29 As explained above, the CFI’s approach to anti-
doping rules was to accept that there are rules concerning questions of ‘purely
sporting interest’ which have nothing to do with economic activity. There are such
rules. The offside rule, for example. But there are few such rules and they are
hardly likely to provoke litigation. Most rules that are relevant to the organisation
of sport also have direct and nowadays substantial economic implications. So it is
with anti-doping rules. On appeal the ECJ set aside the CFI’s decision. The ECJ
dismissed the application for annulment of the Commission’s Decision but it
rejected the CFI’s relatively generous approach to the scope of sporting autonomy
to apply rules with economic effects. Sporting rules must be examined in their
proper context, including recognition of their economic effect. The Court did not
doubt that sport needs rules against doping. And it saw no reason on the facts of
the case to interfere with the two-year ban imposed. EU law recognises the need to
respect sporting expertise in such matters. But there is no special category of rules
with an economic effect which are beyond review. This analytical formula could
have been put to renewed test in Oulmers/Charleroi.30 But, as mentioned above,
that litigation was resolved ultimately (and on some levels regrettably) outside the
courtroom.
‘On overlapping legal orders - what is the ‘purely sporting’ rule?’ brought
together several of the themes that had animated much of my earlier work.31 The
core idea to which the title draws attention holds that the legal order of the EU,
established by Treaty, ‘overlaps’ with the network of rules and practices which
govern sport. The latter - readily labelled the lex sportiva - is not a legal order in
the conventional sense, in that it may not be traced to actions of public authorities,
and yet it is a set of rules which function as if they constitute a type of legal order,
one that sets the global ground rules for sport. Put another way, this paper’s
concern is to explore the relationship between EU law as a basis for controlling
sport from ‘outside’ and the network of governance which regulates sport from
‘inside’. Sports bodies have typically protested against any possibility of overlap,
preferring instead to assert that EU law must stop where the lex sportiva begins.
That argument has never prevailed before the Court or the Commission, and
instead battle has been frequently joined over a more nuanced issue - namely the
extent to which sporting rules may escape the scope of application of EU law on
the basis that they are only sporting rules, and nothing more. But the case law
reveals that this is rare. Most sporting rules also have economic implications and

28
Weatherill 2006A.
29
Note 4 above.
30
Note 15 above.
31
Weatherill 2007.
14 1 Introduction

this is the vital trigger which ensures that EU law and the lex sportiva frequently
overlap. And it is then for sports bodies to show that their practices are subject to
scrutiny under EU law but that they survive such scrutiny. And in this quest they
have been frequently successful, as the paper’s dissection of the case law reveals.
So the paper’s message is that EU law has an ‘overlapping’ tendency: it does not
stop where the lex sportiva starts. But EU law does not always, or even often, have
a destructive tendency: the lex sportiva is capable of being justified according to
the standards set by EU law.
‘The White Paper on Sport as an Exercise in Better Regulation’ is a paper that
is generally congratulatory – which is perhaps a rarer tone than it should be in my
work.32 I have some scepticism whether the current appetite in Europe for ‘Better
Regulation’ is capable of transcending base political incentives to pursue ‘Populist
Regulation’, but the Commission’s 2007 White Paper on Sport strikes me as a fine
example of the genre. It is sensibly cautious, thoughtfully nuanced and analytically
precise. As the paper concludes, the White Paper ‘gets the law right’. Best of all it
avoids some of the over-ambition which I criticized in the 1999 Helsinki Report.
The 2007 White Paper on Sport is plainly treated by the Commission as a foun-
dation stone for its future elaboration of its approach to sport, and I believe it is a
reliable and well-crafted foundation.
I returned to the matter of governance in ‘The Influence of EU Law on Sports
Governance’.33 This account is built on thematically familiar material – that EU
sports law has developed incrementally over time, through case law and occasional
Commission activity and without any explicit sports-specific Treaty foundation. It
then seeks to show how matters of governance are subject to EU law, in so far as
they have the necessary economic effects. The essential point – and problem –
remains that strictly EU law is apt to do more than to rule whether particular
sporting practices are or are not compatible with free movement and/or compe-
tition law. It is not for the EU to dictate what shall be done and it is certainly not
for the EU to adopt legislation setting out the proper shape of sports governance –
that is the province of sports federations. However, in practice, the more that the
Court and Commission interpret EU law to rule against particular governance
choices, the more they push sporting federations into areas that attract EU’s green
light. The application of EU law does not lead to the demolition of long-standing
governance structures but it may require their adaptation.
A good example of such adaptation is provided by the decision of the Court
which I examined in ‘Article 82 EC and Sporting Conflict of Interest: the judgment
in MOTOE’.34 MOTOE – the Greek Motorcycling Federation, a non-profit-making
association governed by private law – was refused the authorisation required under
Greek law to organise motorcycling competitions. This was a result of the with-
holding of consent by ELPA, the official representative in Greece of the Fédération

32
Weatherill 2008.
33
Weatherill 2009B.
34
Weatherill 2009A.
1.3 The Papers Contained in this Book 15

Internationale de Motocyclisme (the International Motorcycling Federation). This

was an issue of governance – who authorises competitive events? – but it was an
issue of commerce as well, because ELPA could be sure it would make more
money from its events if MOTOE were not able to organise rival events. So there
was an economic content to the matter, which brought EU into play. The Court did
not deny that sports require a system for deciding which events should be per-
mitted, and when. But, to use the applicable legal terminology under what was
then Article 82 EC and is now Article 102 TFEU, the decision-maker must not
abuse that dominant position. As the Court put it, the objection here was that
ELPA could ‘distort competition by favouring events which it organises or those in
whose organisation it participates’. The message of the ruling is that an adjustment
in governance was required – to eliminate (in short) the conflict of interest under
which ELPA laboured.
Another ruling of the Court formed the basis of my comment, ‘The Olivier
Bernard case: how, if at all, to fix compensation for training young players?’.35
Like Bosman, its famous predecessor, the case involved the transfer system in
football. And like Bosman, the ruling in Bernard allowed for the possibility of a
transfer system, but within limits set by EU law. A compensation scheme designed
to reward clubs that invest in training young players (‘joueurs espoir’) is not
outlawed, even if the result is that a player’s exercise of contractual freedom and
right to move between Member States is affected. But exactly what EU law will
tolerate is left unclear, as my comment discusses. This is important: the Court
deliberately leaves the detailed renegotiation of the scheme to the football
authorities themselves. It shows some respect for the nuts and bolts of governance
choices.
The paper ‘‘Bosman changed everything’’36 was published in a book ‘‘The Past
and Future of EU Law’’ which was built on a rather brilliant idea: to take the
classic cases of EU law and ask four writers to consider why and how the decision
was significant and how different the development of law might have been without
they relevant key decision. The editors of the book allocated me Bosman – a case
of typecasting, perhaps, but not unwelcome. And the paper seeks to show the Court
engaged seriously with sport’s special character in Bosman and thereby set the
scene for careful shaping of an EU law and policy applicable to sport. This links
Bosman to many other of EU law’s landmark decisions: the Court goes far beyond
the explicit terms of the Treaty in an attempt to shape a legal order that is apt to
meet the objectives sketched, sometimes vaguely, by the founding Treaties. My
paper ‘EU sports law: the effect of the Lisbon Treaty’ was written in celebration of
a landmark in EU sports law.37 The entry into force of the Lisbon Treaty on 1
December 2009 completely changed the constitutional context. Until that moment
there was no formal reference to sport in the EU’s founding Treaties. So the rise of

35
Weatherill 2010D.
36
Weatherill 2010A.
37
Weatherill 2012.
16 1 Introduction

EU sports law had always had to reckon with the criticism that, at best, it was an
exercise in piecing together themes on an incremental basis, unsupported by any
textual direction, and that, at worst, it was a constitutionally illegitimate intrusion
by EU law into areas that simply did not concern it. Neither argument convinced
me even pre-Lisbon, as the earlier papers in the book consistently show, but the
entry into force of the Lisbon Treaty took much of the heat out of such antagonistic
debates. From 1 December 2009 EU sports law is undeniably a constitutionally
respectable field of inquiry and the relevant Treaty provision, Article 165 TFEU,
offers textually explicit thematic pegs on to which to hang one’s intellectual
analysis. The Treaty now recognises ‘the specific nature of sport’, and its ‘social
and educational function’. The EU is charged with the mission to develop ‘the
European dimension in sport’, and it shall promote ‘fairness and openness’. A new
era! Or so it seems. The paper is built on a thematic argument that the influence of
the Treaty of Lisbon is in truth profound but also trivial. It is constitutionally
profound. Sport is subject to explicit reference within the EU’s foundational
Treaties for the very first time. But for two principal reasons the Treaty’s influence
is also trivial. The content of the new provisions have been drawn with immense
caution. The EU’s newly acquired legislative powers are in fact textually slender,
and they are not likely to be backed by significant budgetary resources either.
Moreover, although it is novel to see phrases such as ‘the specific nature of sport’
in the Treaty itself, the paper argues that the whole story of EU sports law, in the
hands of first the Court and lately the Commission too, has been laced with
assiduous concern to reflect and respect the specific nature of sport in the inter-
pretation and application of the Treaty rules on free movement and competition.
Look at the case law, from Walrave and Koch in 1974 and onwards, look at the
Commission’s 2007 White Paper on Sport - sport is not and never has been treated
as if it were sausage-making. So in practice there may well be nothing new at all in
Article 165 TFEU. The Lisbon Treaty, in my estimation, grants constitutional
approval to the long-established acceptance of the Court and the Commission that
sport is special - but not quite as special as sports federations sometimes claim.
Although my assessment of the changes made by the Lisbon Treaty is that they
are unlikely to have any radical effect in practice, that is not to suggest that they
are without interest. In ‘Fairness, openness and the specific nature of sport: does
the Lisbon Treaty change EU sports law?’ I attempted to show how the new Treaty
language could be used to develop EU sports law in a more thematically structured
direction.38 In particular the paper discusses ‘fairness’ (in the context of vertical
solidarity) and ‘openness’ (in the context of rules limiting participation in com-
petition by non-nationals) and asks whether the Lisbon Treaty offers anything new.
My sense is that EU law was already sensitive to such concerns, and so I believe
the Lisbon Treaty’s changes and linguistic innovations may serve to re-frame the
legal analysis but are unlikely to herald any shift in the practical application and
scope of EU sports law.

38
Weatherill 2010C.
Exploring the Variety of Random
Documents with Different Content
We believe, however, that the journey must begin. Schools and For
many people the challenge of change is overwhelming. The shift
towards new forms of organization and management often calls for a
leap of faith that many people are not prepared to make. They need
help and encouragement. But above all else, they need to learn
specific tactics and techniques that can make them more effective.
Gareth Morgan, Finding Your 15% (Video series), 1993 their
communities need a reasonably clear vision of the destination, the
will to overcome or work around the constraints, and a commitment
to imaginative problemsolving. If there was ever a time for a
massive call to action, that time is now. We suggest ways of
overcoming some of the key barriers to change. Inertia Having
already acknowledged the difficulty in getting a large and
complicated system to change course, we stress the importance of
having the government give clear direction and a well-articulated
sense of the overall goals, as well as incentives for change. We also
underline that, through the public hearing process, we were strongly
reminded that pressures for change are mounting, and cannot be
resisted. Support for innovative initiatives that operate outside the
usual organizational and bureaucratic constraints can help overcome
inertia. Highly visible projects can provide the incentive for others to
develop their own innovations. Power issues Although it is rarely
acknowledged openly, concerns about protecting influence often get
in the way of change. No group wants to lose power. Those who
have more, at whatever level of the hierarchy, may resist efforts to
decrease their spheres of influence, or to democratize organizational
decision -making processes. Educators, however, like others in
contemporary society, are aware that times have changed, and that
the education system must become more responsive to parent and
community concerns. We stress that the goals of increased student
learning and the opening up of a closed Vol. IV Making It Happen
Implementing the Reforms
 students. This clearer focus and direction should help
ameliorate the overload problem. Ihc truth, however, is that the
overload will worsen if people do not take action. Will and skill,
although not magic solutions, can be effective antidotes to overload.
We believe that an essential (but difficult) first step is for teachers,
schools, and boards to critically review what they are now doing and
to set priorities. Hducators must identify tasks that may no longer be
important, or that arc better done by others, in a difficult process
that has been termed "organized abandonment." education s>'stcm
should guide the decisions of all stakeholders on the best wav to
organize schooling. CcUective bargaining issues Specific provisions ot
collective agreements must not prevent changes that will improve
student learning. There must be more flexibility in the use of staff
and in the way time 15 allocated and accounted for. Teachers'
federations have been tireless and effective in their roles as
advocates for teachers, and have also positively addressed many
professional issues. However, the rigidities of collective agreements
may not always work to the benefit of students and schools. More
flexible approaches to collective bargaining seem to be appropriate if
schools are to change with changing social circumstances. In this
report, we have repeatedly acknowledged the inestimable value and
contributions of teachers, and have recommended a variety of
measures to support them in their very challenging work. We expect,
in turn, that federations will be flexible on issues where the interests
of students and teachers may, to some extent, conflict. Overload We
often heard that schools and the people in them are overloaded, and
find it difficult - if not impossible - to take on more responsibilities.
We acknowledge these concerns, and although we have no magic
solution to alleviate them, we do think our recommendations
address the problems. Most important, the report takes a stand in
clarifying the purpose of schools, stressing that schools exist first
and foremost for the intellectual and academic nurturing of Lack of
resources We recognize the serious financial constraints affecting
both provincial and local governments, constraints shared by most
public institutions in the 1990s. Expansionary times have long gone,
and society is becoming aware that complaints do nothing to case
fiscal difficulties. Although constraints are real, they should not be
seen as an insurmountable barrier. In some cases, low-cost options
are highly effective; we have already pointed to peer tutoring as a
low-cost program with benefits to students. In our opinion,
volunteers are another under-used and low-cost resource. In other
cases, educators and the public should be prepared to argue for re-
allocation of funds to ensure that essential and high-priority services
and programs are available. Achieving the kind of school system we
envisage will be difficult, but it is a worthy ideal. We have not shied
away from difficult issues, even when wc cannot offer clear or
guaranteed solutions. Will our recommendations be implemented
faithfully? That will be decided by the government, school boards,
schools, teachers, parents, students, and others with a stake in
education in Ontario. If the Commission's vision is to be realized,
these people and organiz^ations must move forward without waiting
for others to take the first step. We began our report by highlighting
the dramatically altered context in which schools now operate.
Profound social, economic, demographic, and technological changes
have made the old forms of schooling outmoded. We went on to
suggest that changes in the education system, important as they
are, are not enough. People must rethink how schools relate to the
community, and htiw the education system relates to the rest of
government and to other societal institutions. For Itw I^M o( IjMmni
 ODIP We want real change in the hves of students and
teachers. We are not interested in political rhetoric about education.
We have indicated what is required in terms of the government's
response and implementation plan, but if substantial changes are to
occur, more than provincial policy changes are needed. School
boards, faculties of education, principals, teachers, parents, and
students can and must act. They need not and, indeed, should not -
wait for governments. Local actions will produce improvements in
classrooms and schools, and will also put pressure on decision-
makers to follow through with necessary supports. In other words,
everybody has to take responsibility for making schools increasingly
better. A 1994 implementation guide published by the British
Columbia Ministry of Education sets out how each stakeholder
contributes to reform. Because we found it to be an excellent
summary of responsibilities, we reproduce it here: Implementation
responsibilities • Ministry provides leadership and implementation
support • School boards organize planning and allocation of
financial, human and learning resources in support of
implementation • Teachers and school administrators participate in
[board] and school-based planning for implementation of new
policies, and implement policies according to provincial guidelines •
Students work to take advantage of learning opportunities offered by
provincial and local programs • Parents help children to develop
clear values and self-discipline, and to apply themselves to their
schoolwork • Provincial and professional organizations (teachers'
federations] plan, and assist members to understand, adapt and
implement new policies and programs • College of Teachers reviews
requirements for certification and teacher education in relation to
the new programs • Business and labour work with local school
boards and schools to develop partnerships in and outside of schools
to assist in the implementation of new programs, especially in the
area of work experience and career development' We would add to
this list the need for parents and other community members to work
with schools to establish school/community councils, and to look for
ways to link school, home, and community more effectively, while
"To wait to introduce J change until we have unanimity is usually to
wait forever ... There is probably no innovation that has benefitted
humankind that was not originally condemned by experts as
impractical, impossible, or immoral." David Pratt, Curriculum
Planning, 1994 Students are responsible for organizing their
systematic input to schools. The actions that people take in schools,
in the community, and in government, will have a cumulative effect
in moving reform forward. They will: • build commitment to the
necessary reforms, and encourage action by all stakeholders, at the
local and provincial levels • develop capacity and skill among
educators, parents, students, and others, to implement the changes
• create organizational cultures supportive of changes, and provide
necessary resources for schools, school boards, the Ministry, and
community groups • provide relevant feedback to schools and to the
public, about how the process is proceeding and about early
outcomes, and ensure that such feedback is used to improve future
implementation. We end our report by suggesting actions for all
those who care about Ontario's schools. Through thousands of such
actions, guided by the goal of improved learning for all students, our
schools will rise to the challenge of preparing children and
adolescents for the 21st century. Together, those with the biggest
stake in Ontario education can work to make our recommendations
a reality. They can also insist that the government act promptly to
implement the report. "Systems ... don't change by themselves;
people change systems." The report of the Royal Commission on
Learning is now in the hands of the people of Ontario. Its future is
up to you. Vol. IV Making It Happen Implementing the Reforms
 Endnotes Onuho, Provincul Committee on Aims and
Objectives of Education m the Schools of Ontario, Living ami
Ltarning (Toronto: Newton Publishing, 1968), p. 134. Allan R.
Odden. "New Patterns of Education Policy Implementation and
Challenges for the 1990s," m tiiuiatum Poliqf Implementation
(Albany: State University of New York Press, 1991). p. 326. Michael
G. Fullan with Suzanne Stiegelbaucr, The Net* Meaning of
Educational Change (Toronto: OISE Press, 1991 ), p. 65. Milbrey W.
McLaughlin, "Learning from Experience: Lessons from Policy
Implementation." in Odden, Education Policy Implementation, p.
187. Matthew Miles, "Practical Guidelines for School Administrators:
How to Get There' (paper presented at the annual meeting of the
American Educational Research Association, 1987). Two recent
articles point to the challenge of helping a large and diverse
educational community understand highly complex and difficult
changes, and the danger that people will rely on oversimplified
interpretations of new policies. See: Roland Case. "Our Crude
Handling of Educational Reforms: The Case of Curricular
Integration," Canadian Journal of Education 19, no. 1 ( 1994): 80-
93. Walter Werner. "Defining Curriculum Policy through Slogans,"
Journal of Education Policy 6, no. 2 ( 1991 ): 225-38. Kenneth
I^thwood and Byron Dart, "Guidelines for Implementing Educational
Policy in British Columbia," p. 7. Draft paper prepared for the British
Columbia Ministry of Education. 1994. G. Orpwood and I. Lewinglon,
Overdue Assignment: Taking RaponsiMity for Canada's Schoob
(Rexdale, ON: )ohn Wiley. 1993), p. 182. British (;>>lumbia.
Ministry of Education, Putting Policies into Practice: Implementation
Guitir ( Victoria, 1994), p. 2-3. For the UiM of IjMmtnc
 Appendix 1: Action Plan for Government Examples of
longer-term actions for the province and the Ministry of Education
and Training Year 2 (1996-97) • continue legislative change for
longer-term actions; • monitor the initial changes, and on the basis
of these experiences, develop guidelines for further implementation,
create necessary training and professional development programs,
disseminate information throughout the province; • establish the
College of Teachers; MET transfers control of teacher education,
certification (initial and continuing); • phase in French-language
governance and other changes in board structure; • carry out
evaluations of principal courses and SOQPs; follow through on
results by setting out improvement targets - with timelines. Over the
longer term (10 years, with MET setting out detailed implementation
plans to guide efforts over this time) • initiate full implementation of
Early Childhood Education programs; • implement the new
curriculum in its entirety; • implement new-teacher preparation and
professional development programs; • initiate the annual
administration of Grade 3 and 1 1 assessments; • implement the full
range of changes in funding structures and French-language
governance; • create a framework for on-going improvement, based
on the results of assessments. Year 3 (1997-98) • set outcomes for
all grades; • implement Grade 3 and Grade 1 1 assessments; •
assure that all funding and local governance changes are in place for
1997 municipal and school board elections; • plan, with the College
of Teachers, the new-teacher, pre-service prerequisites for admission
and program requirements, and the requirements for on-going
professional development; • make decisions re continuation of
various prinicpals' courses and SOQPs; • request curriculum teams to
write support documents (through contracts). Vol. IV Making It
Happen Implementing the Reforms
The text on this page is estimated to be only 24.15%
accurate

Appendix 2: Action Plan for Education Stakeholder* •f

lwm»iH»t» or •hort-torm actions: To bo dono In 1995-96 by
oducation stakoholdoro To94< of RCOl S«teoo4 Board*
R9C041HVI#4MltfC lOnft T««ch«r»' F»d«ftto«i» •ccountabiltty AsalM
m dtssAfTwiM Assist in communi' Provtde RCOL infor mg information
about eating RCOL infor mation to parents. RCOt. report and malion
to members, students, and racofranandauons. community. Review
current programs in light o( RCOL discussion and recommendatwns.
Help to organize arul attend information sessions. Work witfi Softools
and scfiooi boards to distnbute RCOL s short version summary
tt>rou0i hold information sessions. Curriculum Idanufy omlcuium
Continue program Review programs re Contact teachers Work on
establishing and •xparUM. hnkwtth of producing programs arx)
teach changes needed so about ways to help peer coaching and
lMna«« MET. other boards. specific additional ing approacr>es to
that student teach your child leam. tutonng program. with
federations. curriculum irwrease levels of ers are prepared to arxl
wrth faculties of support matenals cfiallenge. ensure teach the
common education. that all students benefit, and identify teacher in
service needs. curnculum. iderKify teacher inProvide professional
Ensure that all Strengthen Contact teachers Produce best efforts
service ne«
 Topic of RCOL School Boards Recommendations Teachers'
Federations Information technology Teacher professionalIzation
Community education Identify hardware and software needs.
Expand work on professional electronic networks. Ensure that all
teachers have familiarity and expertise with computers and
electronic communications - to strengthen learning. All student
teachers learn to use technology to strengthen student learning.
Volunteer to assist in classrooms re computer usage during and/or
after school. Identify students who can help staff and other students
in using information technology. Identify professional Work with
faculties Identify priorities for Meet with represen- Work with school
to Establish a program development of education re priorities of all
board various alternative staff and trustees. models of professional
development. Create inventory of existing links with community
agencies. Establish federation perspectives on how best to link with
community beyond school, and to co-ordinate programs and services
to the advantage of students, as well as teachers. professional
develop- tatives from school ment and identify boards and teacher
what can be provided federations re joint with in-school programs
and how expertise. mandatory professional development will be
implemented. Identify a problem shared by school and community,
as focus for action. Develop courses to explore community
education. plan professional development for school community
council members. Ask schools to bring in outside resources and
volunteers and identify community expertise. of leadership
development for students. Start student-initiated community service
programs. For the community partnership engine in particular,
community agencies and business groups are also stakeholders.
They all can take action to initiate and support closer links between
schools and their communities. Senior officials in various community
agencies and business groups can contact school boards re common
interests, joint ventures, conferences to build common
understanding, as well as putting pressure on government to
support such links through regulatory and funding mechanisms. Vol.
IV Making It Happen Implementing the Reforms
 For the Love of Learning: Recommendations This section
includes the connplete set of recommendations of the Royal
Commission on Learning.
 Chapter 7: The Learner from Birth to Age 6 The
Commission recommends: 1. That Early Childhood Education (ECE)
be provided by all school boards to all children from 3 to 5 years of
age whose parents/guardians choose to enrol them. ECE would
gradually replace existing junior and senior kindergarten programs,
and become a part of the public education system; 2. That the ECE
program be phased in as space becomes available; 3. That, in the
implementation of ECE, the provincial government give priority
funding to French-language school units; 4. That the Ministry of
Education and Training develop a guide, suitable for parents,
teachers, and other caregivers, outlining stages of learning (and
desirable and expectable learner outcomes) from birth onwards, and
that it link to the common core curriculum, beginning in Grade 1.
This guide, which would include specific learner outcomes at age 6,
would be used in developing the curriculum for the Early Childhood
Education program. Chapter 8: The Learner from Age 6 to 15 The
Commission recommends: 5. That learner outcomes in language,
mathematics, science, computer literacy, and group
learning/interpersonal skills and values be clearly described by the
Ministry of Education and Training from pre-Grade 1 through the
completion of secondary school, and that these be linked with the
work of the College Standards and Accreditation Council, as well as
universities; and that clearly written standards, similar in intent to
those available in mathematics and language (numeracy and
literacy), also be developed in the other three areas; 6. That the
acquisition of a third language become an intrinsic part of the
common curriculum from a young age up to Grade 9 inclusively, with
the understanding that the choice of language(s) taught or acquired
will be determined locally, and that the acquisition of such a third
language outside schools will be recognized as equivalent by an
examination process, similar to what we term challenge exams
within the secondary school credit system; 7. That all elementary
schools integrate a daily period of regular physical exercise of no less
than 30 minutes of continuous activity as an essential part of a
healthy school environment. Schools that have problems scheduling
daily periods should, as a minimum, require three exercise periods
per week; 8. That, at the Grade 1-5/6 level, an educator monitor a
student's progress during the years the student is at the school, and
be assigned responsibility for maintaining that student's record; 9.
That the Ministry of Education and Training and the local boards of
education provide incentives to large middle (and secondary) schools
to create smaller learning units, such as schools-within-schools or
houses; 10. That, beginning in Grade 7, every student have a
Cumulative Education Plan, which includes the student's academic
Vol. IV Making It Happen Recommendations to the Total Report
 and other learning experiences, is understood to be the
major planning tool tor the student's secondary and postsecondary
education, and is reviewed semi-annually by the student, parents,
and by the teacher who has a continuing relationship with and
responsibility tor that student as long as she or he remains in the
school; 1 1. That curriculum guidelines be developed in each subject
taught within the common curriculum, to assist teachers in designing
programs that will help students achieve the learning outcomes in
The Common Curriculum. These guidelines should include concrete
suggestions on how teachers can share with parents ways to help
their children at home; 12. That the Minister of Education and
Training aniond the regulations to enable school boards to extend
the length of the school day and/or school year; 13. That the
Ministry of Education and Training work with curriculum and learning
specialists to develop strategies (based on sound theory and practice
and enriched with detailed examples) for providing more flexibility in
the amount of time available to students for mastering curriculum:
14. That local schools and boards be allowed to develop and offer
programs in addition to those in The Common Curriculum, as long as
those options meet provincially developed criteria, and as long as at
least 90 percent of instructional time is devoted to the common
curriculum for Grades 1 to 9. Chapter 9: The Learner from Age 15 to
18 The Commission recommends: 15. That the Ministry of Education
and Training review community college education - its mandate,
funding, coherence, and how it fits into the system of education in
Ontario, including clarification of access routes from secondary Khool
to college, and with special attention being paid to students who are
not university-bound; 16. That secondary Khool be defined as a
three year program, beginning after Cirade 9, and that students be
permitted to take a maximum of three courses beyond the rr
 25. That the Ontario Training and Adjustment Board (OTAB)
be given the mandate to take leadership, working in partnership with
school boards, community colleges, and other community partners,
to establish programs that will assist secondary school graduates
and drop-outs to transfer successfully to the workforce, including
increasing opportunities for apprenticeship and for other kinds of
training as well as employment counselling; 26. That the Ministry of
Education and Training create a brief and clear document that
describes for parents what their children are expected to learn and
to know, based on the developmental framework of stages of
learning from birth to school entrance. The Common Curriculum, and
the secondary school graduation outcomes. Succinct information on
college and university programs should be also included; 27. That, in
order to ensure that all Ontario residents, regardless of age, have
access to a secondary school diploma, publicly funded school boards
be given the mandate and the funds to provide adult educational
programs; 28. That a consistent process of prior learning
assessment be developed for adult students in Ontario, and that this
process include an examination for a secondary school equivalency
diploma; 29. That the Ministry of Education and Training, with its
mandate which includes post-secondary education, require the
development of challenge exams and other appropriate forms of
prior learning assessment by colleges and universities, to be used up
to and including the granting of diplomas and degrees; 30. That the
right of adults to pursue literacy education must be protected,
regardless of employment status or intentions; 31. That
COFAM/OTAB immediately define and set aside, for short- and
medium-term adult literacy programs, a francophone allotment that
is not linked to participation in the workforce, in addition to the
francophone programs linked to workforce status and intention.
Chapter 10: Supports for Learning: Special Needs and Special
Opportunities The Commission recommends: 32. That the Ministry
make it mandatory for Englishlanguage school units to provide
ESL/ESD, and Frenchlanguage school units to provide ALF/PDF, to
ensure that immigrant students with limited or no fluency in English
or French, and Charter rights holders with limited or no fluency in
French, receive the support they require, using locally chosen
models of delivery. In its block-funding grants, the Ministry should
include the budgetary supplements required to allow the schools to
offer these programs wherever the community identifies a need for
them. 33. That no child who shows difficulty or who lags behind
peers in learning to read be labelled "learning disabled" unless and
until he or she has received intensive individual assistance in
learning to read, which has not resulted in improved academic
performance; 34. That in addition to gifted programs, acceleration,
based on teacher assessment, challenge exams, and/or other
appropriate measures become widely available as an important
option for students; 35. That when parents and educators agree on
the best programming for the student, and there is a written record
of a parent's informed agreement, no Identification, Placement, and
Review Committee (IPRC) process occur; 36. That when there is no
agreement, and an IPRC meeting must take place, a
mediator/facilitator be chosen, on an ad hoc basis, to facilitate
discussion and compromise, to alleviate the likelihood of a legal
appeal; and that the legislation be rewritten to provide for this pre-
appeal mediation; 37. That when a student has been formally
identified and placed, the annual review be replaced by semi-annual
individual assessment that will show whether and how much the
student has progressed over a five-month period, and decisions
about continuation of the program be made based on objective
evidence as well on as the judgment of the educators and parents in
regard to the student's progress; Vol. IV Making It Happen
Recommendations to the Total Report
 38. That school boards look for ways to provide assistance
to thoic who need it, without tving that assistance to a formal
identification process. 39. That, while integration should be the
norm, school boards continue to provide a continuum of services for
students whose needs would, in the opinion of parents and
educators, be best served in other settings; 40. That all elementary
school teachers have regular access to a "community career
coordinator" responsible for co-ordinating the school's community-
based, career-awareness curriculum, and working with teachers and
community members to build and support the program; 41. That,
beginning in Grade 6 or 7 and continuing through Grade 12, all
schools have appropriately trained and certified career-education
specialists to carry out career counselling functions; 42. That the
Ministry, in co-operation with professional career-education groups,
the Ontario School Counsellors' Association, and the Association of
Career Centres in Educational Settings, and with representation from
colleges, universities, and business and labour, develop a continuum
of appropriate learner outcomes in career awareness and career
education for Grades 1-12; 43. That the Ministry of Education and
Training take the lead in working with the Ministry of Health to
develop a defmition of es.sential mental-health promotion programs
and services that should be available in the school setting; the
professional training necessary to provide them; the services that
should be offered to students outside the schools and by whom; and
the way responsibility for providing these services is shared across
ministries; 44. That the Ministry of Education and Training cLirity the
nature and function of personal and social guidance counselling in
schools by: .1) redefining the appropriate training required for a
guidance or pervinal counsellor, and creating and implementing a
plan for educating and re-educating those people who arc now, or
should now be, delivering these services to students; this
redefinition should be done in co-operation with the Ontario School
C'ounsellors' Association and rcprcscntalives of colleges and
universities; such training should also he accessible through avenues
other than teacher education; b) ensuring that delivery of these
services be implemented by personnel who, after a date to be
specified, have received the agreed-on training; 45. That the
Ministry of Education and Training develop a new guideline for
social/personal guidance to replace Guidance, Intermediate and
Senior Divisions, ]984, including a description of the kind of
differentiated staffing needed to deliver guidance and counselling
services in schools, both elementary ami secondary. Chapter 11:
Evaluating Achievement The Commission recomdieiidb. 46. That
significantly more time in pre-service and continuing professional
development be devoted to training teachers to assess student
learning in a way that will help students improve their performance,
and we recommend supervised practice and guidance as the
principal leaching/learning mechanism for doing so; 47. That the
Ministry of Education and Training begin immediately to develop
resource materials that help teachers learn to assess student work
accurately and consistently, on the specific learner outcomes upon
which standardized assessment and reporting will be based; 48.
That the Ministry of Education and Training, in conjunction with
professional educators, assessment experts, parents, students, and
members of the general public, design a common report card
appropriate for each grade. lb be known as the Ontario Student
Achievement Report, it would relate directly to the outcomes and
standards of the given year or course and, in all years, would be
used as the main vehicle for communicating, to j>arents and
students, information about the students achievements. UTiilc school
hoards would not be permitted to delete any part of the OSAR, they
could seek permi.ssion from the Ministry to add to it; tn For ttw
l^w« o( LMmim
 49. That the Ministry monitor its own assessment
instruments for possible bias, and work with boards and professional
bodies to monitor other assessment instruments; that teachers be
offered more knowledge and training in detecting and eradicating
bias in all aspects of assessment; and that the Ministry monitor the
effects of assessment on various groups; 50. That all students be
given two uniform assessments at the end of Grade 3, one in literacy
and one in numeracy, based on specific learner outcomes and
standards that are well known to teachers, parents, and to students
themselves; 51. That the construction, administration, scoring, and
reporting of the two assessments be the responsibility of a small
agency, independent of the Ministry of Education and Training, and
operating at a very senior level, to be called the Office of Learning
Assessment and Accountability; 52. That a literacy test be given to
students, which they must pass before receiving their secondary
school diploma; 53. That the Ministry continue to be involved in and
to support national and international assessments, and work to
improve their calibre; 54. That the Ministry develop detailed, multi-
year plans for large-scale assessments (program reviews,
examination monitoring), which establish the data to be collected
and the way implementation will be monitored, and report the
results publicly, and provide for the interpretation and use of results
to educators and to the public; 55. That, initially, and for a five- to
seven-year period, until the process is well established in the school
system and in the public consciousness, an independent
accountability agency be charged with implementing and reporting
the Grades 3 and 1 1 universal student assessments. The reports
and recommendations of the Office of Learning Assessment and
Accountability would go directly to the Minister and the public; 56.
That the Ministry of Education and Training, in consultation with
community members and researchers, develop a specific procedure
for collecting and reporting provincewide data on student
achievement (marks, and Grade 3 and Grade II literacy test results)
for groups identified according to gender, race, ethno-cultural
background, and socioeconomic status. Chapter 12: The Educators
The Commission recommends: 57. That the Education Act be
amended to allow instructors who are not certified teachers to
supervise students, under specified conditions and circumstances,
and to deliver certain non-academic programs. Instructors might be
health, recreational, and social-work personnel, or other members of
the community, as designated by the school's principal; 58. That a
professional self-regulatory body for teaching, the Ontario College of
Teachers, be established, with the powers, duties, and membership
of the College set out in legislation. The College should be
responsible for determining professional standards, certification, and
accreditation of teacher education programs. Professional educators
should form a majority of the membership of the College, with
substantial representation of non-educators from the community at
large; 59. That the College of Teachers, in close co-operation with
faculties of education, develop a framework for accrediting teacher
preparation programs offered by Ontario faculties of education, and
that the College be responsible for carrying out such accreditation
processes; 60. That faculties of education and school staff who
supervise student teachers be accountable for ensuring that those
recommended for Ontario Teaching Certificates have the qualities
required for admission to the teaching profession, and that those
candidates who do not show such qualities be advised to leave
teacher preparation programs; 61. That faculties expand their efforts
to admit more student teachers from previously under-represented
groups, including ethno-cultural and racial minorities, aboriginal
communities, and those who are disabled, and that they be
accountable to the College of Teachers for demonstrating significant
progress toward achieving this objective; 62. That faculties of
education, school boards, and teachers' federations develop joint
programs to encourage more Vol. IV Making It Happen
Recommendations to ttie Total Report
 young people from minority groups to consider teaching as
a career, and to ensure that minority youth and adults interested in
teaching have opportunities to gain the necessary experience with
children and adolescents; 63. That faculties of education establish
partnership arrangements with selected school boards and schools in
the public, Roman Catholic, and French-language systems that agree
to work with faculties in preparing student teachers. In such
designated "professional development schools," staff from faculties
and from the schools would be jointly responsible for planning the
program and for guiding student teachers through their learning; 64.
That school staff with responsibility for student teachers be selected
jointly by the faculty of education and the school principal, and that
they participate in a significant and welldesigned preparation
program themselves, to ensure that they have a fully developed
understanding of the process of learning to teach, and a shared
understanding of the skills, knowledge, competencies, and values
that beginning teachers should have; 65. That school staff
supervising student teachers have significant input into
recommendations for certification; 66. That common undergraduate
prerequisites be established for entry to pre-service teacher
preparation programs, with decisions about specific prerequisites to
be made by the College of Teachers, with input from faculties of
education and school boards; 67. That faculties of arts and science
be encouraged to work with faculties of education to develop
suitable undergraduate courses, where these do not exist, in
subjects that are prerequisites for entry to faculties of education; 68.
That the consecutive program for teacher education be extended to
two years, and that one year be added to the concurrent program,
and that the Bachelor of Education degree be awarded on successful
completion of the two-year program or, in the case of the concurrent
program, on completion of the equivalent of the two-year education
program; 69. That the current practice-teaching requisite of 40 days
be replaced by a requirement that student teachers spend at least
that much time observing and working in designated "professional
development schools" during the first year of the B.Ed, program, and
that they spend a substantial portion (at least three months) of the
second year working in schools, under the supervision of school
staff. As well, a similar requirement for students in concurrent
programs should be established over the length t»t the pre-service
program; 70. That faculties of education recommend to the CA)llege
of Teachers that those who have been awarded B.Ed, degrees be
given a provisional Ontario Teaching Certificate; 71. That the Ontario
Teaching Certificate be made permanent on completion of one year's
teaching in Ontario, on the recommendation of a qualified principal
or supervisory officer. However, this certification process would he
quite distinct from the employing board's decision concerning
probationary and permanent contracts; 72. That the College of
Teachers develop a set of criteria for certifying staff for school
readiness programs, and that whatever preparation and certification
requirements are adopted, teachers in early childhood education
programs have qualifications equivalent to other teachers, and be
equal in status; 73. That the College of Teachers consider how to
recognize staff members who arc currently licensed as early
childhood educators or certified primary teachers and who will be
affected by the establishment of school readiness programs for
three-year-olds in publicly funded schools; 74. That school boards be
required to provide appropriate and sustained professional support
to all first-year teachers, to case their entry into full-time teaching;
75. That mandatory professional development be required for all
educators m the publicly funded school system, with continuing
certification every five years, dependent on both satisfactory
performance and participation in professional development
recognized by the College of Teachers; 76. That the Ministry of
Education and Training, school boards, and federations, in
collaboration with the ('ollegc of Teachers, investigate and
encourage various ways of providing opportunities for professional
renewal for teachers and Khool admini-strators; m For Vm Lov« o(
Le«m«n(
 77. That all school boards make information available to the
public about their performance appraisal systems, using newsletters
or other means, so that students, parents, teachers, and the public
are aware of the basis of performance appraisal and the guidelines
being followed; 78. That all school board performance appraisal
systems include provision for systematically and regularly seeking
input from students and parents in regard to teaching, classroom,
and school atmosphere, and to related matters about which they
may have concerns or suggestions; 79. That beginning teachers
have an opportunity to get helpful performance feedback from
colleagues other than the principal or vice-principal, understanding
that such information will not be used for decisions about permanent
contracts. Designated mentor teachers - or in secondary schools,
department heads - could provide this assistance; 80. That the
College of Teachers, the Ministry, and school boards emphasize that
principals are accountable for satisfactory teacher performance in
their schools, and that supervisory officers are responsible for
ensuring that principals take appropriate action in dealing with
teachers whose performance is not satisfactory; 81. That the
Ministry, teachers' federations, and school boards reach agreement
on any changes required to ensure that policies and practices related
to dismissal effectively balance the rights of teachers and the rights
of students; 82. That an M.Ed, degree be a requirement for
appointment to the position of vice-principal or principal; 83. That
the provincial courses to prepare candidates to become principals
continue, but that these courses be regularly evaluated, starting
immediately, by an external review team, composed of practising
principals, supervisory officers, academics in the field of educational
administration, and at least one member from outside Ontario. The
review should be rigorous, to assess how successfully the course
addresses the skills and knowledge required, as well as the needs of
the system. Continuation of any courses would depend on a
satisfactory evaluation; 84. That school boards create a variety of
structured experiences through which aspiring and junior
administrators can learn leadership skills. Such experiences would
include internships or job shadowing, exchanges outside the
education field, secondments to a number of different educational
settings, and organized rotation of vice-principals to different
schools; 85. That appointment to the position of principal or
viceprincipal be for a five-year term, continuation of the appointment
to depend on evidence of participation in, and successful completion
of, professional development programs satisfactory to the employing
school board, and on satisfactory performance; 86. That in light of
recent and proposed changes in the nature and organization of
secondary school programs: a) the role of department head be
reviewed, with a view to reducing the number of department heads
where appropriate; b) responsibilities of department heads include
supervision and evaluation of teachers in their departments; c)
appropriate professional development be provided for department
heads; 87. That school boards review the responsibilities of
supervisory officers in light of the changes in governance and
organization recommended in this report, with a view to reducing
the number of supervisory officers as appropriate, as current
incumbents retire, and, if necessary, changing responsibilities
assigned to supervisory officers, as organizational needs change; 88.
That the Supervisory Officer Qualification Programs continue, but be
regularly evaluated, starting immediately, by an independent review
team, which would include supervisory officers and academics in
educational administration, as well as some members from outside
Ontario. The continuation of programs should depend on a
satisfactory evaluation from this team; 89. That requirements for
admission to the Supervisory Officer Qualifications Program be
adjusted, to make it possible for school boards to appoint
administrators from outside Ontario as supervisory officers; Vol. IV
Making It Happen Recommendations to the Total Report
 90. That schiwl boards provide current and aspiring
supervisory officers with increased opportunities Jor varied
experiences, both in and outside the educational system, including
exchange programs with government and business; 91. That newly
appointed supervisory officers be given a minimum ot 15 days
release time during their first year in the position, for participation in
structured professional development activities such as: a) working
with other supervisory officers to increase their understanding of
their new roles; b) taking part in a study group or series of
workshops with other newly appointed supervisory officers; 92. That
supervisory officers be appointed for a five-year term, with a
continuation of the appointment dependent on successful
participation in professional development recognized by the
employing board, and on satisfactory performance. Chapter 13:
Learning , Teaching and Information Technology The Commission
recommends: 93. That the Ministry be responsible for overseeing the
increased and effective use of information technology in the
province's schools, and that its role include a) determining the
extent and nature of the computerrelated resources now in use in
schools across Ontario; b) functioning as an information clearing
house for these resources, assuring that all boards are privy to such
information, and preventing unnecessary duplication of effort; c)
facilitating alliances among the Ministry, school boards, hardware
and software firms, and the private sector; dl developing common
standards jointly with system partners, for producing and acquiring
technology; e) developing license protocols that support multiple
remote users accessing centrally held software in a local area
network (LAN) or wide area network (WAN) structure; and f) co-
ordinating efforts, including research and special projects, to refine
effective educational assessment programs; 94. That school boards
in co-operation with the Ministry, the private sector, universities, and
colleges, initiate a number of high-profile and diverse projects on
school computers and learning, to include a major infusion of
computer hardware and software. I hese projects should reflect the
province's diversity, include a distinct and comprehensive evaluation
component, and be used for professional development, software
design, and policy analysis; 95. That the Minister approach
colleagues in other provinces, through the (Council of Ministers of
Education of Canada, to establish a national network of projects on
computers and learning, which can inform teaching and learning
from sea to sea; 96. That the proposed College of Teachers require
faculties of education to make knowledge and skills in the
educational use of information technology an integral part of the
curriculum for all new teachers; 97. That teachers be provided with,
and partKip.ile in, professional development that will equip them
with the knowledge and skills they need to make appropriate use of
information technology in the classroom, and that acquisition of such
knowledge become a condition of re-certification; 98. That the
Ministry of Education and Training and the Ministry of Economic
Development and Iradc, working through learning consortiums and
existing federal government programs, co-ordinate efforts with the
Ontario business community to distribute surplus computers through
Ontario school board.s, and that, as more computers are introduced
into the .school system, priority be given to equipping schools
serving low-income .imi Iramo Ontarian tommunities; 99. That the
Ministry increa.se the budget allocated for purchasing software on
behalf of school boards in Ontario, and that it increase boards'
flexibility in using funds to 174 For ttw Uw* Of LMminc
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