CYIL 2014

EUROPEAN ANTIǧDISCRIMINATION LAWAND THE LEGAL STATUS OF PROFESSIONAL ATHLETES therefore, not possible to infer from the ECJ judgment in the Feryn case a clear guidance for addressing the potential liability of FC Steaua. The Court of Appeal identified three major problems. First, The Court of Appeal wanted to clarify the question of whether and to what extent the soccer club FC Steaua as a potential employer can be held responsible for the statements of Mr. Becali. Second, the problem arose as to by which means the employer may, after the reversal of the burden of proof, prove the absence of discrimination based on sexual orientation. Third, the Court of Appeal addressed the question of whether a warning under Romanian law can be considered as an effective, proportionate and dissuasive sanction within the meaning of Directive 2000/78/EC. 4.2 On the issue of FC Steaua’s responsibility for the statements of a former shareholder The Romanian court explained that the relationship between Mr. Becali and FC Steaua was “atypical”. Although Mr. Becali, from a legal perspective, had not been entitled to represent the club and to make decisions about the recruitment of athletes, due to his close factual relationship with the club he could decisively influence the decision of the club on new players. A week before he made his problematic remarks on TV, Mr. Becali sold the shares which he had in the club FC Steaua. In the commercial register the transaction was recorded only a week after he had given his public statement on homosexual players. But even after the sale of stocks had been registered, Mr. Becali, in the collective consciousness, continued to be associated with the club. Is there, in such circumstances, a concrete space for the application of Directive 2000/78/EC? The reflections of the ECJ on this issue, as they follow from the judgment, are unfortunately quite disappointing. The text of the judgment does not contain a summary of the parties’ arguments. We also miss an opinion of the Advocate General, while we do not know why no such opinion has been presented. We can only assume that the ECJ, respectively the Advocate General Niilo Jääskinen himself, did not consider a more detailed analysis of the case as necessary. Indeed, this is a pity, because the questions concerning the accountability of legal persons for an administrative offense are very difficult, and they probably do not have a uniform solution in the law of the Member States, especially in a situation where persons other than statutory authorities act on behalf or in the interest of a legal person. 23 The ECJ dealt in a rather peculiar way with the question of whether the statement of Mr. Becali established the liability of FC Steaua as an employer. The Court did not at all address the problem of attributability in the context of tort liability of legal persons. Nor did the Court deal with the question of whether there had occurred any discrimination in the individual case of Ivan Ivanov. Further the ECJ did not consider the argument of FC Steaua which claimed that it had never negotiated with any club about the possible transfer of I. Ivanov. According to the ECJ, the crucial 23 For general theoretical considerations on this topic see Beran, K. Trestní odpovědnost právnických osob z hlediska teorie fikce, T restněprávní revue , 5/2014, pp. 107-113.

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