Sport in Case of 'Brexit': Part 5
Posted: Mon, 22 May 2017 08:48
It's now a year since I wrote the first of these blog articles and the Prime Minister has lit the fuse on the Article 50 petard by notifying the European Parliament of the UK's intention to leave the European Union.
In order to get to this position we've had rulings in both the High Court and the Supreme Court which established that the decision to leave the EU can only be taken by Parliament.
The Supreme Court ruling avoided the thorny issue of whether the fuse on Article 50, once lit, can be extinguished (the revocability problem), an issue which may yet re-emerge as an obstacle.
The Supreme Court was also ambiguous on the distinction between the 'power to notify under Article 50' and the 'power to decide to leave the EU'. The Bill makes no reference to the decision to leave the European Union which will be a matter for the Great Repeal Bill.
With that as background these are the possibilities, as I see them, and they amount to (A) Russian/Hard Brexit, (B) Russian/Hard Brexit plus (a transition period) & (C) Norwegian/Soft Brexit models:
- The default position is that the lighting of the Article 50 fuse on 29 March 2017, combined with a failure to agree terms of a withdrawal agreement with the EU, will lead to the UK ceasing to be a signatory of the Treaty on European Union on 29 March 2019.
- There is a possibility similar to (A) which avoids the 'perfect storm' risk by including negotiated 'transitional arrangements' prior to the deadline. The EU and UK could form a withdrawal agreement involving the UK falling back onto WTO terms but with a transition period whereby the UK will have ceased to be a signatory to the Treaties but sustains, in all respects, EU rules for a period of time. This could conceivably be quite considerable, perhaps 5-10 years.
- The principle alternative to (A) involves a withdrawal agreement being reached with the EU, within the 2 year Article 50 time period, encompassing UK membership of the European Economic Area (EEA) and thus continuing membership of the Customs Union.
This outcome would be Soft Brexit or what I've referred to as the Norwegian model. Membership of the European Free Trade Area, as per Norway, is unlikely to be a solution for achieving this because the UK would be far too big a partner in that project upsetting the existing balance between Iceland, Liechtenstein, Norway and Switzerland. In addition the EFTA countries have a much higher GDP/capita than the UK and so have fundamentally different requirements.
In previous blogs I've suggested that the Secretary of State for Sport should take the opportunity presented by Brexit to table a Sport Bill so that a Sport Act can come into force mirroring the rights & obligations enshrined in the TEU. There is an argument that the competence and will to achieve this does not exist.
In any case government policy is to adopt the quick and dirty solution of absorbing the entirety of the EU Acquis Communautaire into UK law upon Brexit and then chewing it over clause by clause over time. So rather than the UK acquiring a Sport Act it will acquire the modest clauses from the Lisbon Treaty which means that on 29 March 2019 something like the following from TFEU will become UK law:
'The United Kingdom shall have competence to carry out actions to support, coordinate or supplement the actions of the EU Member States in the sport field and 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'
and shall be active in
'developing the European dimensions in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest'.
There's not too much to argue with there, but the clauses do imply ongoing obligations and in so far as cross-border responsibilities exist they bring into the sporting arena contingent factors which may include sporting rules, visa issues, freedom of movement of sports competitors, support staff and sporting equipment in competition and so on.
At a practical level sport, from an EU budget perspective, is part of Erasmus+ and a question mark hangs over any continuing UK involvement with the Erasmus+ programme.
Another difficulty will be inherited CJEU case law such as the Bosman ruling which would continue to apply to UK sport. For example it's conceivable that Bosman could conflict with new post Brexit laws introduced by the Home Office to do with visa restrictions in circumstances where more than 60% of Premier League footballers are immigrants testing both 'freedom of movement' and 'fairness in sporting competition'.
None of this is a happy state of affairs for British sport which must now endure a period of immense uncertainty. For sports manufacturing businesses there is the very real possibility of a new commercial environment outside the Customs Union with an increase in administration costs, tariffs and non-tariff barriers.
For individuals freedom of movement will continue for at least another 2 years but after that the possibility of studying or living in the EU will be subject to new restrictions along with new and additional costs for travel, visas and health insurance costs.
Steve Lawrence is an English architect and co-founder of a football data analytics and spatial development consultancy with clients including AFC Ajax, Amsterdam and Cruyff Football, Barcelona.