SPORTS LAW, SPORTS POLICY AND THE AMATEUR ATHLETE

REFLECTIONS ON TOPFIT AND BIFFI v. DEUTSCHER LEICHTATHLETETIKVERBAND

Abstract

There have been a number of significant papers on the European Court of Justice’s 2019 decision in TopFit v DLV, a preliminary reference which concerns direct nationality discrimination against an amateur athlete. This paper contributes to that knowledge-base by drawing on those contributions but also by setting the case in its historical context to show how it aligns with forty years’ worth of developments in both sports law and sports policy.  Furthermore, TopFit illustrates that the potential ramifications of the EU’s sports competence as laid down in Article 165 TFEU might be greater than they first appear. Contrary to the Advocate General’s Opinion, the Court held that direct nationality discrimination laws were applicable to amateur sporting activities – there was no need to establish the existence of economic activity which, fortuitously, Biffi possessed. It thus needs to be considered alongside the wider caselaw on EU citizenship, and the case is not a matter of ‘purely sporting interest.’

But nationality restrictions can still be legitimate if they are deemed to be a proportionate response to a legitimate sporting concern. In any other cultural sphere, the idea that one’s desire to take part in an amateur event might be lawfully ended by ‘proportionate’ discrimination would seem ludicrous. The paper argues that sport’s privileged position within the European Union is a reflection of its ability to leverage its financial muscle and ubiquity, and its concomitant ability to influence policymakers; it does not possess any ‘inherent’ qualities that make it ‘special’ in comparison to other cultural fields.