CYIL 2014

HARALD CHRISTIAN SCHEU CYIL 5 ȍ2014Ȏ It seems that the Court of Appeal took over only one main conclusion from the ECJ judgment, namely that the assessment of the facts of the case is for the national court. Consequently, the Court of Appeal deduced that issues concerning the possible liability of FC Steaua for discriminatory statements against sexual minorities are related to the assessment of the facts. On the level of facts, the Court of Appeal held that there was no evidence that FC Steaua actually rejected signing a contract with the player I. Ivanov. The Court of Appeal upheld the conclusion of the Consiliul National that FC Steaua had never entered into negotiations concerning a transfer of Ivan Ivanov. The Court of Appeal in its judgment also stressed the specificity of the recruitment of professional athletes. There are, in principle, no public vacancies or application interviews. The crucial aspect is not direct negotiations between a sports club and a player, but negotiations between the clubs. By the way, this argumentation seems to not be in line with the view of the ECJ which stated that the fact that a professional football club might not have started any negotiations with a view to recruiting a homosexual player does not preclude the possibility of discrimination. With regard to the concrete statement of Mr. Becali, the Court of Appeal did not rely on the general impression of the public or “social groups” but pointed out the specific circumstances in which the TV interview had been conducted. According to the Romanian court, the statements had been a response to an initiative or provocation on the part of the journalist who wanted to learn about the private attitudes of Mr. Becali, especially as far as his personal relationship to religion was concerned. The public, therefore, according to the Court of Appeal, could and should have made be a distinction between such private speech of Mr. Becali on one side and the official policy of FC Steaua on the other side. When looking at these conclusions of the Court of Appeal, we have to agree with the assumption that the determination of facts falls within the competence of national courts. It appears, however, that the line between the finding of facts and the interpretations of such facts can be very thin. What surprises most is the fact that the Court of Appeal made a reference to the ECJ at all when it believed that the interpretation and application of EU law would not be relevant in this case and that it simply would have to establish the facts of the case. In whatever way we understand the complicated relationship between the establishment of facts and legal interpretation, we see that the Court of Appeal departed from the arguments from the ECJ with regard to the responsibility of FC Steaua. The Court of Appeal noted that there was no evidence that FC Steaua identified with the statements of Mr. Becali or that the club would have ever practiced discriminatory policies. Unlike the ECJ, the appellate court stressed that Mr. Becali had no right to make decisions on behalf of the club and that the case, therefore, did not affect the relationship between the club as a potential employer and a potential player. Whereas the ECJ had in mind an overall assessment of the situation and 6 February 2014 ( available at: http://www.non-discrimination.net/content/media/RO-116-CAp%20 Buch%20Accept%20v%20Becali%20reasoning.pdf).

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