CYIL 2014

HARALD CHRISTIAN SCHEU CYIL 5 ȍ2014Ȏ gesture but also as a protection against possible anti-discrimination lawsuits. The national court did not apply the general approach formulated by the ECJ. It did not address the case from the perspective of abstract principles but, on the contrary, based its conclusions on the particular features of the individual case. The case of FC Steaua shows that the application of anti-discrimination law with respect to the employment of athletes is complicated. When the national court emphasized the specifics of procedures for the recruitment of professional athletes, it had in mind that the system of recruitment is not based on a public tender and that the selection procedure does not require the submission of applications. At the first stage there are no direct negotiations between the club and the player. When an employer, mostly through players’ agents, 29 enters into negotiations with a prospective soccer player, 30 the first basic choice has already be made on the level of direct negotiations between the clubs concerned. During subsequent negotiations between the club and the player the player’s salary conditions are clarified. Within this frame, there is limited space for detecting discriminatory action against an athlete. 31 In literature it is undisputed that various forms of discrimination may occur in the process of recruiting new players. With respect to the situation in Germany, Weichselgärtner 32 identified the example of a young Brazilian soccer player who was allegedly discriminated against because of his homosexuality. After there had been speculations in the media regarding the player’s sexual orientation, the club refused to sign the negotiated contract. According to Weichselgärtner this is why players’ agents advise their clients to remain silent about their sexual orientation. 33 The problem is that such discrimination is detectable only with great difficulty. Moreover, there may be doubts about whether members of sexual minorities have any interest at all in the publicity following anti-discrimination actions against a famous sports club. The case of FC Steaua has demonstrated that, in practice, discrimination of professional athletes does occur. On the other hand, the crucial incentive for legal action against the soccer club was not the discrimination of a particular athlete but public statements by a well-known Romanian sports official. It is doubtful whether the test case of FC Steaua, which will probably continue before the Romanian Supreme Court, may lead to a more positive approach towards minorities among sports clubs. Perhaps the main lesson to be learned from the ECJ judgment will be the same as in that Feryn case, i.e. not to speak about distinctions between employees openly and in public. Paradoxically, anti-discrimination law in this way strengthens 29 According to the FIFA regulations a players’ agent is a natural person who, for a fee, introduces players to clubs with a view to negotiating or renegotiating an employment contract or introduces two clubs to one another with a view to concluding a transfer agreement ( available at: http://www.fifa.com/mm/ document/affederation/administration/51/55/18/players_agents_regulations_2008.pdf) 30 See Hamerník, P., Sportovní právo , Praha, 2012, pp. 60-63. 31 See Weichselgärtner, Florian: Das Allgemeine Gleichbehandlungsgesetz (AGG) im Leistungssport, Regenstauf, 2011, pp. 42-43. 32 Ibidem , 43. 33 Ibidem .

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