CYIL 2014

EUROPEAN ANTIǧDISCRIMINATION LAWAND THE LEGAL STATUS OF PROFESSIONAL ATHLETES the general impression of the public media, the Court of Appeal focused on the particular aspects and circumstances of the case and found that the statements were not attributable to the employer. In the margin we want to draw attention to a curiosity which had appeared already before the first instance. The Consiliul National referred to the exception which is laid down in Article 4, paragraph of the Directive 2000/78/EC. According to this provision churches and other public or private organizations, the ethos of which is based on religion or belief, may, under certain conditions, apply preferential treatment to employees who share the organization’s ethos. Such differentiation will not be qualified as discrimination within the meaning of Article 1 of the Directive 2000/78/EC. 26 The Consiliul Naţional, for a moment, considered the idea that a soccer club is a kind of entity which shares certain values, traditions and beliefs, and that this “belief ” might come close to an organization’s ethos within the meaning of the Directive. The Court, however, concluded that the employment of a professional athlete cannot be made conditional upon moments related to his intimate family or private life, but that only his objective sporting performance is relevant. 27 6. Final considerations The case of FC Steaua has raised some interesting questions concerning the issue of discrimination based on sexual orientation in the relationship between a sports club and a professional athlete. Given the particular circumstances of the case we shall not generalize the findings of the ECJ. As far as the relationship between the national and the EU level is concerned, there is a certain contradiction between the judgment of the ECJ and the considerations of the Court of Appeals. When interpreting anti-discrimination law the ECJ focused on the definition of general principles and rather swept minor problems like e.g. the issue of attributability of discriminatory statements, the liability of legal entities and the reversal of the burden of proof under the rug of an overall context and of the general impression of the public. Such an interpretation, on one hand, greatly expanded the applicability of anti-discrimination law in situations when problematic statements and declarations become public. From this point of view, various campaigns of sports organizations and clubs against racism and so-called homophobia 28 serve not only as a moral 26 The condition is that the religion or belief of the person concerned constitutes a genuine, legitimate and justified occupational requirement with regard to the organization’s ethos. 27 See more detailed Jura, Christian. From the National Council for Combating Discrimination to the Court of Justice of the European Union. Case C-81/12. The paper was presented at the international conference “Challenges of the Knowledge Society” held in May 2013 in Bucharest. For the written version of the paper, see Proceedings of the conference ( available at: http://cks.univnt.ro/cks_2013. html). 28 In 2003 and 2006 the UEFA issued two handbooks against discrimination: „UEFA-Handbuch für gute Verhaltensregeln zur Bekämpfung des Rassismus“ a „Bekämpfung von Rassismus im Klubfussball. Ein Handbuch für Vereine“ ( available at: http://de.uefa.org/social-responsibility/respect/no-to-racism/ index.html).

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