‘SPORTING MERIT’ IN EUROPEAN UNION LAW

2.1. THE TREATIES

In EU law, the principle of conferral establishes that the Union can only legislate where it is expressly authorized to do so by the treaties.5 Although sport-related disputes first reached the Court of Justice fifty years ago,6 sport policy was only expressly incorporated into the EU treaties through the Lisbon Treaty, which came into force in 2009.

EU sport policy is governed by Article 165 TFEU, which is located in Title XII of Part Three of the TFEU, titled ‘Education, vocational training, youth and sport.’ According to Article 165(1)(b) TFEU, “[t]he Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.” This is further developed by Article 165(2)(g), which specifies that “Union action shall be aimed at … developing the European dimension in sport, by promoting fairness and openness in sporting competitions.”7 In order to contribute to the achievement of these objectives, Article 165(3) requires the Union and the Member States to “foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.” Article 165(4), on the other hand, allows the European Parliament and the Council, “acting in accordance with the ordinary legislative procedure,” to “adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States.” It also holds that the Council, on a proposal from the Commission, may ‘adopt recommendations’ on sport-related issues.

For the purposes of this article, two conclusions can be drawn from a purely textual analysis of Article 165 TFEU. The first such conclusion concerns the Union’s capacity to regulate sport-related matters. As the Court of Justice clarified in both ELSC and Royal Antwerp, Article 165(4) allows the EU to engage in some sport-related rule-making, but cannot be relied on as a self-standing legal basis for the harmonisation of Union legislation.8 In the Court’s own words, the Union has no general regulatory competence over sport, but merely a supporting one which allows it to pursue ‘not a ‘policy’, as provided for by other provisions of the [TFEU], but an ‘action’ in a number of specific areas, including sport.’9

The second conclusion concerns what – if anything – the TFEU tells us about the meaning of ‘sporting merit’ in EU law. Although Article 165 TFEU does not refer to this concept, it does highlight three related ones. First, it refers to the ‘specific nature of sport’ – a highly contested notion, both legally and normatively.10 Second, it mandates the promotion of ‘fairness … in sporting competitions.’ Third, it refers to the advancement of ‘openness’ in said competitions. As this article will argue, all three concepts can be interpreted in different ways, each with significant implications for the operationalisation of sporting merit and, in turn, for the organisation and regulation of European sport. All three will therefore play a central role in the debate entertained in the following sections.

2.2. BEYOND THE TREATIES

The fact that sport did not feature in EU primary law prior to the Lisbon Treaty does not mean that there was no EU sport policy until 2009. For decades, there has been a relatively consistent effort to set out a European sport policy, both in the EU and within the framework of the Council of Europe. For reasons of space, the present section will not discuss all the instruments – ranging from ministerial conclusions to guidelines and from policy statements to reports – that refer to the regulation of sport in Europe.11 Instead, it will focus on those instruments which expressly refer to sporting merit or to the main characteristics of the European sport model. In doing so, it will seek to understand what – in anything – these documents tell us about the meaning of sporting merit in Union law.

The Commission’s early sport-related policy documents contained no reference to sporting merit, nor did they expressly refer to a European sport model. The Communication on the European Community and sport,12 published in 1991, did not mention either concept, nor was this notion addressed in the 1998 Staff Working Paper on ‘the development and prospects for Community action in the field of sport’ – a report which did, however, provide the first indications of what would later become the ESM, arguing that national competitions based on promotions and relegations constituted one of sport’s ‘unique characteristics.’13 A similar silence characterised the Member States’ most important sport-related statements: neither the Amsterdam Declaration, attached to the Amsterdam Treaty,14 nor the European Council’s Nice Declaration, published in December 2000, made any specific references to sporting merit.15

Far more explicit was the so-called Helsinki Report, produced by the Commission in 1999.16 In its introduction, the Report points towards a European model of sport, arguing that there are “many common features in the ways in which sport is practised and organised in the Union, in spite of certain differences between the Member States,” and suggesting that it is “therefore possible to talk of a European approach to sport based on common concepts and principles.”17 Building on the above, it notes that the increasing commercialisation of sport, as well as the growing profits attached thereto, were putting at risk the “principle of financial solidarity between professional and amateur sport and the system of promotion and relegation common to most federations.”18 Once again, therefore, a European approach to sport is closely linked to the system of promotion of relegations which, the Report argues, ensures that competitions are premised on sporting merit. This is made even more explicit several pages later, where the Commission notes that “[t]he system of promotion and relegation is one of the characteristics of European sport” by “giving small or medium-sized clubs a better chance,” thereby “reward[ing] sporting merit.”19

Several years later, the Staff Working Document accompanying the highly influential 2007 White Paper on Sport once again referred to sporting merit. When discussing licensing systems for European football clubs, the Commission argues that:

In fact, it is from the White Paper onwards – a timeframe which coincides with the adoption of the Lisbon Treaty20 – that a shift in tone can be observed, both in the EU and in the Council of Europe. On the one hand, a 2008 resolution by the Parliamentary Assembly of the Council of Europe stressed “the need to preserve the European Sports Model,” a model which was “neither homogeneous nor perfect,” but was which was “deeply rooted in European civil society,” was “an important expression of European culture and the European attitude towards sporting values,” and was a “democratic model that serves to ensure sport remains open to everyone.”21 Having set out the above, the PACE urged Member States to “uphold the European sports model based on the twin principles of financial solidarity and openness of competition (promotion and relegation, opportunity for all)” – a wording very similar to that set out in Article 165 TFEU.

In the EU context, a 2011 communication published by the Commission noted that “legitimate objectives pursued by sport organisations may relate, for example, to the fairness of sporting competitions [and] the uncertainty of results.”22 One year later, the European Parliament adopted a resolution which highlighted that:

A similar conclusion was reached in 2017, where the Parliament argued that “the European organised sport model is based on the principles of territoriality and nationality, with one federation per discipline, and on solidarity mechanisms between elite and grassroots sports, as well as on promotion-relegation, open competitions and financial redistribution.”24 In that same resolution, it reiterated “its attachment to the European organised sports models … with open competitions and based on sporting merit.”25

In 2021, only one year before the announcement of the breakaway European Super League, two relevant policy documents were published. The revised European Sports Chapter, adopted by the Council of Europe, noted that “[t]he organisation of top-level and professional sports competitions should be in compliance with the principle of openness in sporting competitions, giving priority to sporting merit.”26 At the same time, the European Parliament referred to sporting merit as one of the key principles underlying the European sports model.’27 In its view, “open competition, sporting merit and fairness” were three of the principles which justified “strongly oppos[ing] breakaway competitions that undermine such principles and endanger the stability of the overall sports ecosystem.”28

What can be gleaned from the policy documents reviewed above and how is it relevant to the question addressed in this article? First, both the Union and the Council of Europe acknowledge the existence of a ‘European sport model’ of sorts – in other words, of an approach to the organisation of European sports which, despite being ‘neither homogeneous nor perfect,’ boasts certain central characteristics. Second, the analysis carried out above shows how, over time, ‘sporting merit’ has gradually become one of the central characteristics underlying this model. Although the promotion of sporting merit plays an important role, it is not the only such characteristic that can be deduced from the above analysis: concepts such as the openness and fairness of sporting competitions, the system of promotions and relegations, and the principle of financial solidarity also feature in the policy documents explored in this section. Third, although these documents seem to agree that sporting merit plays a central role in the European approach to sport, none of them contain a definition of what sporting merit does or does not entail, nor do they set out how this concept can be operationalised: indeed, as will be set out below, the Court’s recent case law has only partly clarified these questions. It is to this case law that this analysis will now turn.

3.1. EUROPEAN SUPER LEAGUE COMPANY

‘Sporting merit’ was first raised by Advocate General (‘AG’) Rantos in ESLC, the dispute concerning the proposed breakaway league made up of twelve leading European football clubs. In his Opinion,29 AG Rantos argued that the insertion of Article 165 TFEU through the Treaty of Lisbon had culminated the gradual process of constitutionalization that sport had undergone since the early days of Union law, a process which was encouraged by landmark judgments such as Bosman .30 In his view, Article 165 not only confirmed that sport fell within the scope of Union law: it also afforded “constitutional recognition” to a “European Sport Model,” a system “which is characterised by a series of elements applicable to a number of sporting disciplines on the European continent, including football.”31

Three such elements were identified, by the Advocate General, as characterising the ESM. First, “a pyramid structure with, at its base, amateur sport and, at its summit, professional sport.” Second, a system of open competitions based on sporting merit. Third, a regime of financial solidarity, which allows profits to be redistributed to lower levels of the pyramid.32 When a court was faced with a case involving a sport-related dispute, AG Rantos argued, the dispute in question ought to be analysed in light of these special characteristics and of the “horizontal” nature of Article 165 TFEU,33 both of which should inform the Court’s reading of the relevant provisions of EU law – for example, on competition law or free movement – raised by the dispute.

As is well known, the Court of Justice in ESLC shied away from affording sport the ‘constitutional status’ which AG Rantos advocated for.34 Instead, the Court embraced what has long been its orthodox approach to the interaction between EU law and sport: namely, that Union law affords no special status to sports law; that it is applicable to sport insofar as the latter “constitutes an economic activity,”35 and that it is only “certain specific rules adopted solely on non-economic grounds and which relate to questions of interest solely to sporting per se” – for example, on national teams or raking criteria – that can fall outside the scope of the TFEU.36

Having set the analytical scene, the ESLC judgment refers to sporting merit on three occasions. First, in its analysis under Article 102 TFEU, and more specifically when discussing the role of sport governing bodies (SGBs) in establishing prior approval rules for participation in breakaway competitions. In holding that the Treaties do not, in principle, preclude SGBs from setting such rules, the Court of Justice argues that this follows from the “considerable social and cultural importance” of football in the EU and from the former’s “specific characteristics”, including the importance of sporting merit in such competitions.37 The concept is also relied on when addressing the application of Article 101 TFEU to the facts of the case. In this section of the judgment, the Court of Justice employs ‘sporting merit’ to tighten the scrutiny that SGBs must face when their rules on breakaway competitions are challenged before national courts. In essence, the Court of Justice holds that, although the referring court may take into account “the principles, values and rules of the game underpinning professional football, in particular the open, meritocratic nature of the competitions concerned,” simply referring to these objectives will not suffice to exempt UEFA and FIFA from Article 101(1) TFEU. On the contrary, the latter will have to show, on the basis of convincing evidence, that all requirements are actually satisfied on the facts.38 Finally, sporting merit features in the Court’s analysis of the alleged restriction on the freedom to provide services, which is addressed at paragraphs 242-257 of the judgment. Having established that the UEFA-FIFA rules could amount to a violation of Article 56 TFEU, the Court notes that such restrictions ‘may be justified, in terms of its very principle, by public interest objectives consisting in ensuring, prior to the organisation of such competitions, that they will be organised in observance of the principles, values, and rules of the game underpinning professional football, in particular the values of openness, merit and solidarity.’39

Based on the above, what role do sport’s ‘specific characteristics’ – including sporting merit – play in the analysis of sport-related cases? ESLC evidences that these characteristics will feature once two prior boxes have been ticked. To begin with, the applicant will have to establish that the case in question falls within the scope of EU law. Although this will often be an easy hurdle to clear, particularly given the Court’s growing insistence that sport enjoys no special status within EU law, it need not always be the case: as set out above, rules with no economic dimension, for example on the composition of national football teams, will not be caught by the treaties. On the other hand, the applicant will also have to identify a breach of Union law. Once these two elements have been established, ‘sporting merit’ will play a central role at the two subsequent stages of the Court’s analysis: first, when determining whether the breach of EU law can be justified, and second, when assessing whether any such justification is a proportionate means of achieving the proposed justification.

3.2. ROYAL ANTWERP

Sporting merit also features in Royal Antwerp, a judgment concerning the ‘home-grown player’ rules enacted by the Union of European Football Associations (UEFA) and the Belgian Football Association (URBFSA).40 Royal Antwerp and ESLC are highly cross-referential judgments. It is therefore not surprising that the Court’s reasoning – and its analysis of the role of sporting merit – is very similar in both judgments. As in ESLC, sporting merit is once again listed as one of the “specific characteristics of professional football.”41 In the Court’s own words:

In Royal Antwerp, therefore, sporting merit acquires an even greater relevance than in ESLC, becoming the central characteristic of European football; that which underpins the European sport model as a whole. Indeed, having set out its understanding of this model, the Court of Justice proceeds to draw on football’s ‘specific characteristics’ to carry out its subsequent analysis concerning the categorisation of the restrictions in question as ‘by object’ or ‘by effect.’ When doing so, the Court relies on three factors: football’s ‘considerable social and cultural importance:’the fact that competitions are often organised nationally; and the centrality of ‘sporting merit’ to the organisation of those competitions,43 all of which have to be considered by the referring court in its analysis of the dispute before it.

3.3. DRAWING THE THREADS TOGETHER

Several provisional conclusions can be drawn from the analysis of the Court’s case law. First, and in line with the analysis carried out in section 2, both Royal Antwerp and ESLC confirm that the promotion (and protection) of sporting merit is one of the ‘specific characteristics’ of the European Sport Model. Arguably, the Court’s language denotes that it constitutes the central characteristic of this model. Therefore, wherever a sport-related case reaches the Court of Justice, sporting merit is likely to play an important role in the latter’s interpretation of the Treaty’s competition or free movement provisions, although it is far from clear what type of evidence parties will have to adduce when invoking this concept before the Court.

Second, the Court of Justice makes it clear that the ESM is to enjoy no sui generis ‘constitutional’ role within the EU treaties. Contrary to what AG Rantos calls for in his Opinion, the ESM is not to be afforded a horizontal status which requires its characteristics to be taken into account by the EU legislator in all circumstances.44 Nor do these specific characteristics allow SGBs to circumvent the treaties, for example by relying on sport’s supposed autonomy to turn sport regulation into a lex specialis and escaping EU Courts’ scrutiny.45 However, although the Court of Justice shies away – or indeed, rebukes – the Advocate General’s constitutional language, it does afford the ‘specific characteristics’ of European sport an important role in its interpretation of sport-related case law.

On the one hand, these specific characteristics, and hence sporting merit, can be used to identify objective justifications that parties may rely on when derogating from the EU treaties. This can be seen, for example, in the competition law analysis in ESLC, where the Court relies on both sport’s specific characteristics – including sporting merit – when evaluating the legality of the UEFA-FIFA breakaway rules and when analysing the possible justifications of the joint sale of broadcasting rights.46 On the other hand, sporting merit provides a factor which the Court can consider in its proportionality analysis, as Royal Antwerp evidences. As this author has previously argued, the Court of Justice embraces the approach of AG Szpunar in Royal Antwerp, taking into account the particular reality of football but stripping it of its constitutional fanfare. In other words, the Court of Justice adopts a nuanced – and orthodox – approach, whereby the peculiarities of sport neither enjoy a  carte blanche, nor can they be disregarded by national courts. In that sense, sport is no different from other areas of the internal market, with Union law setting out an outer framework that cannot be derogated from whilst taking into account the economic reality of the sector in question.

5.1. UNDERSTANDING THE AMERICAN SPORT MODEL

So far, this article has focused on the central features characterising the so-called ‘European Sport Model,’ with a particular focus on the Court’s case law and on the theoretical and practical tensions that sporting merit may give rise to within that European model. The present section will embrace a comparative approach, focusing on the so-called ‘North American’ model of sport. When referring to the ‘North American’ model, this article will focus on the economic and sporting structure governing the four most important US leagues: the National Basketball Association (NBA), the National Football League (NFL), the Major League Baseball (MLB), and the National Hockey League (NHL). Other leagues, such as the Major League Soccer (MLS), are organized according to a different model, and will therefore be disregarded for the purposes of this article.57

The differences between the European and American sport models concern both their respective goals and the manner in which those objectives are pursued. Some of these differences were set out, albeit very cursorily, by Advocate General Rantos in his Opinion in ESLC. In his view, the European model “differs from the North American model, which is primarily based on ‘closed’ competitions or leagues, in which the participation of clubs, which are franchised businesses, is guaranteed, pre-determined and based on an entrance fee.”58 In fact, for AG Rantos, the differences between these approaches are not merely coincidental, nor are they the result of a historical accident. In his words, “it is precisely in response to the other models which exist that the EU legislature decided to incorporate the concept of the ‘European Sports Model’ into the Treaty in order to draw a clear distinction between it and those other models and to guarantee its protection through the adoption of Article 165 TFEU.”59 In essence, the Advocate General seems to suggest that the differences between both approaches are existential, in that the European sport model exists to protect itself from the American one.

To begin with, the Big Four American leagues are closed, with a horizontal structure and no system of promotions and relegations. In other words, the ‘pyramid’ structure that characterizes European sport is nowhere to be found in the American system.60 The stability in the composition of North American leagues gives rise to a business model that is radically different to the European one. Regarding clubs, “the certainty of remaining in the highest level of a given league provides incentives for [them] to promote and grow their brands” – for example, by allowing “existing team owners to use the scarcity of teams to pressure municipalities into building their teams publicly funded facilities and has allowed them to sell expansion teams at uniquely expensive prices.”61 At the same time, the quasi-permanent nature of the leagues themselves has facilitated long-term agreements between franchises on matters such as intellectual property rights or the centralized sale of betting data.62 This greater collective focus, which has also allowed leagues to focus on generating revenue in order to attract top talent to the league as a whole, rather than to individual clubs at the expense of others, is facilitated by the suspension of traditional US antitrust and labour laws in relation to sports.63

Second, the North American model is characterised by greater self-regulation, with very limited public intervention from the federal government and the understanding that leagues and franchises are best left to their own devices. This stands in clear contrast to Europe, where there is a greater public dimension to sport – as exemplified by national sports federations, which are often quasi-public bodies – and where the European Union has become increasingly involved in recent years.

Third, and most importantly for present purposes, the American model also includes sport-related corrective mechanisms – in other words, mechanisms aimed at correcting inequality between teams and promoting the competitive balance of domestic leagues.64 Two such mechanisms stand out. On the one hand, salary caps, which limit the money franchises can spend on their players’ salaries and which have been shown to produce “more balanced league[s].”65 On the other, so-called ‘draft systems,’ which allow the worst-performing teams in any given season to access the most sought-after young players, therefore providing them with an opportunity to rebuild their squads whilst limiting top-performing teams’ ability to access this young talent. Collectively, these systems ensure that competitions remain competitive over time, and that performing well is a real possibility, not just a fiction, for all participating teams.

As Van Bottenburg suggests, the differences between the European and North American sports models result from their distinct historical roots. In his words, “[i]n the nineteenth and twentieth century, the European and American sports formations and cultures developed along quite different paths,” both in relation to which sports became popular; the contexts in which they were first practised; and how they were commercialized and organized.66 More broadly, however, the European and American sports models are also reflective of the broader cultural, political, and ideological differences underlying European and American societies. These differences transcend the context of sport, but also unequivocally shape how the latter is organised. The fact that sport is organized “independently of the state”67 – that it is market-driven, with government regulation viewed as unthinkable – is reflective of a broader American model of regulation which Anu Bradford has explored at length in her work on technological regulation.68 Conversely, the European model – one which views regulation as a more acceptable means through which to achieve ‘fair’ competition – is closer to the European model of regulation in other areas, not least the ordoliberal influence on the Union’s competition law framework69 or its hands-on approach to the regulation of “digital empires.”70

5.2. SPORTING MERIT AND COMPETITIVE BALANCE UNDER THE AMERICAN SPORT MODEL

How, then, does the American sports model understand the tension between sporting merit and competitive balance? Building on the framework set out above, the present article suggests that, whereas the European sport model tends to endorse a ‘static’ view of sporting merit, the American model emphasises a ‘dynamic’ one: in other words, it places a greater emphasis on maintaining a competitive balance over time, even if this requires greater ex ante intervention by domestic leagues in order to redistribute the sport’s most important resources. This can be observed, on the one hand, from the agreements struck between franchises to enable the pooling of financial resources – such as the income obtained from the joint sale of broadcasting rights – which are jointly exploited by leagues and subsequently redistributed to enhance the latter’s value. No less importantly, the emphasis on promoting a competitive balance can also be deduced from the presence of sport-related corrective mechanisms, such as salary caps or the draft system.

By prioritising the pursuit of a long-term competitive balance over that of short-term sporting merit, the North American sport model facilitates sport-related turnovers that are almost unthinkable in Europe. In the NBA, for example, an intelligent use of draft picks allowed the Boston Celtics, one of the worst-ranked teams in the 2006/07 season, to win the title the following season.71 It also enabled the Golden State Warriors, a consistently mid-ranking team for many years, to create a hegemonic dynasty in the space of a few years. Similar examples can be found in other sports. In the NFL, the New England Patriots went from an underwhelming 2000-2001 season, with 5 victories and 11 defeats, to a highly successful 2001-2002 one, in which they topped their division and went on to win the Super Bowl. This turnaround was largely facilitated by the performance of their draft pick Tom Brady, a largely unknown player who had been signed by the Patriots two years earlier. Although European football underdogs have carried out historic upsets in recent years – with Leicester’s 2015-16 Premier League win or Atlético de Madrid’s 2013-14 La Liga triumph providing perhaps the most remarkable examples – these are largely historical accidents, rather than the product of structural corrective mechanisms designed to ensure that competitive balance is upheld over time. In the Premier League, Leicester City’s win proved a one-off phenomenon; in Spain’s La Liga, Atlético’s two recent league titles have proved a mere drop in a 19-year ocean of Real Madrid and FC Barcelona dominance. Nor did Lille OSC’s victory in the 2020-2021 Ligue 1 prevent eight PSG league titles in the last ten years.

None of the above, of course, means that the North American model does away with sporting merit in the organisation of its major leagues. However, as the previous examples illustrate, the approach embraced by these leagues does strike a better balance between the reward of short-term sporting merit and the pursuit of long-term competitive balance, ensuring that its leagues are won by a wider range of clubs. In the ten seasons spanning the years 2013/14 to 2022/23, the NBA has been won by eight different franchises;72 the NFL, by seven;73 the MLB World Series, by nine;74 and the NHL, by eight.75 Collectively, therefore, 34 franchises have won the Big Four US leagues, whereas only fifteen clubs76 have won the five most important European football leagues.

Similarly, the above does not imply that the North American sports model is perfect or that Europe should transplant every single of the model’s features within its own framework. As von Bottenburg’s analysis highlights, both models are deep-rooted in their respective social, political, and cultural systems. Indeed, the pyramid structure which characterises many – albeit not all – European sports can be thought to belong to the “affective” dimension of the European Sports Model, as the fallout from the Superleague saga illustrated.77 However, the analysis undertaken in this article does suggest that Europe would do well in learning from the American model to promote greater competitive balance in its sporting competitions.

5.3. WHAT CAN THE EU LEARN FROM THE US?

Many of the financial corrective measures promoted in the US would be almost impossible to implement in the European Union. To name but one example, the centralisation of financial, intellectual property, or data resources which characterises the North American model would most likely be incompatible with Article 101 TFEU, since EU law does not exempt sport clubs from the EU competition acquis in the same way that US law does. Nor is it obvious, for similar reasons, that salary caps or other labour-related measures could survive the Court’s scrutiny. This could only be the case if they were deemed to fall within the ‘purely sporting rule’ discussed above – an avenue that has become significantly narrower following the December judgments.78 However, this is not to say that sport-related corrective measures could not be envisaged. This is particularly the case in relation to the draft system, which “reflects the deeper commitment of North American sports leagues to managing competitive equality and uncertainty of results.”79

Draft-related rules would be unlikely to fall foul of the EU treaties. On the one hand, they do not concern EU’s economic rules and could therefore be argued to fall outside the scope of EU law in the first place. It is worth recalling that, in ESLC, the Court of Justice reiterated that “specific rules adopted solely on non-economic grounds and which relate to questions of interest solely to sporting per se,” such as those that determine the ranking criteria used to select athletes or clubs participating in competitions, fall outside the scope of EU law.80 Arguably, a draft system – in other words, a framework designed to assign players to clubs participating in a league based on their past performance – would be caught by this dictum and thus be exempt from the scrutiny of EU law.

However, even if this rule were deemed to fall within the scope of Union law, it is easy to envisage how, drawing on the argument put forward throughout this article, they could be justified by reference to Article 165 TFEU. Indeed, although draft-like mechanisms are “culturally … alien” to European sport as it stands,81 it is suggested that these self-correcting mechanisms not only reflect the particular values projected by American sports: but they may also be better suited to promote the very objectives that the European sports model sets out to achieve. After all, it must be recalled that Article 165 TFEU calls for the promotion of “ fairness and openness in sporting competitions.” If, as this article argues, the promotion of a competitive balance must form part of this quest for ‘fairness’ and ‘openness’ by ensuring that European sporting competitions are open to a wider range of participants; and if sport-related corrective mechanisms contribute to the attainment of long-term competitive balance within these competitions, there is nothing in the European sport model, and hence in EU law, that precludes the adoption of such mechanisms. Indeed, the introduction of sport-related corrective mechanisms could complement existing mechanisms, such as those designed to facilitate the redistribution of broadcasting rights, which have shown themselves unable to remedy the growing inequality underlying European football.