The Court of Justice’s case law, stretching back fifty years, provides that sporting practices which fall within the scope of EU law may be applied on the condition that it is shown they are necessary to achieve legitimate objectives and that they comply with the demands of the test of proportionality. This admirable model of ‘conditional autonomy’ is in danger. On 21 December 2023, the Court changed its approach. It restricted the scope for arguments specific to sport to be advanced in defence of practices reviewed against the demands of EU competition law. The risk is that an interpretation of EU law ‘from a competition standpoint’ – as the Court put it on 21 December - in pending cases concerning the transfer system, the regulation of agents and club (re)location will prevent sport’s (claimed) special features even being assessed as part of the legal analysis. This paper urges the Court not to wreck its excellent track record in the development of EU sports law. It should treat most choices about governance in sport as restrictions of competition by effect, not object. The intent is not to immunise them from review but rather to ensure that review stretches beyond Article 101(3) TFEU and is fully sensitive to the economic and sporting context in which governing bodies operate as regulators.
Keywords: sport; conditional autonomy; proportionality