Chapter EIGHTEEN

Race

INTRODUCTION

Sports business leaders, who face greater public exposure and scrutiny than executives in other industries, have long been confronted with pressure to ensure that their industry is diverse. The diversity emphasis has been focused primarily on race and gender. In recent years, a global diversity element has come into play as well. In general, sports has attained a leadership position for its on-field diversity, but has long lagged in diversity in the front office and ownership.

Well before Jackie Robinson integrated Major League Baseball in 1947, municipalities, led by New York City, often raised racial discrimination issues. The National Association for the Advancement of Colored People made a number of pronouncements as well. Questions of policy were raised, including why publicly financed facilities should be used by enterprises that discriminate.

Even as far back as the search to find a “Great White Hope” to battle the first black heavyweight champion, Jack Johnson, race has been an ever-present part of the business of sports. Early in the last century, the race of the boxers in a bout was used to sell tickets and inspire interest. The race-baiting formula has been used over and over again, including, notably, the Larry Holmes–Gerry Cooney heavyweight championship bout decades later. Race sells in the marketing of a sporting contest.

In the United States, the elimination of racial discrimination in sports largely occurred for practical reasons, not from any dramatic evolution of society’s hearts and minds. In post–World War II baseball, part of the motivation to recruit ballplayers from the Negro Leagues was simply to fill the need for more talent. Eventually it became the desire to expand the talent pool, as owners came to realize that much of the best talent was black. Ironically, this led to the demise of the Negro Leagues. That realization of the value of black talent ultimately occurred in other leagues as well. Table 1 shows the racial composition of players among leagues and in intercollegiate athletics in recent years.

The issue of racial diversity has evolved from players to management and ownership. In recent years, the NFL has shown dramatic success in the hiring of African American head coaches. This success has largely been attributed to the so-called “Rooney Rule.” This league-imposed rule requires that whenever a position for a head coach occurs at least one minority candidate must be interviewed for the job. Since the implementation of the rule in 2002, the number of African American head coaches has grown from a low of two to a high of seven. In 2009, the rule was expanded to apply to general manager positions as well.

When the ownership barrier in major league sports was knocked down by Bob Johnson in the NBA and Arte Moreno in Major League Baseball, it was done with little ceremony. Once those barriers were broken it became clear that, for the most part, the only color barrier to ownership in the new millennium was green—economics. That barrier is obviously not one that exclusively impacts sports.

Diversity has become a global issue as well. Soccer has formed a number of organizations, including Football Against Racism in Europe (FARE), to battle racism, which permeates many of its venues, particularly on game days. Similar to American sports, coaches and managers of color have been underrepresented in soccer as well.

Non-race-related diversity issues have evolved over time as well. The 1973 Billie Jean King–Bobby Riggs “Battle of the Sexes” tennis match held in the then-novel Houston Astrodome is symbolic of some of the barriers that have been overcome in these other areas. That spectacle revealed to many that the potential of women’s sports could extend beyond the moral obligation to promote gender equality to the realization of profit. This certainly led to a number of women’s sports leagues. Many of these are discussed in Chapter 4, “Emerging and Niche Leagues.” Other important issues related to women and diversity are discussed in Chapter 16, “Gender Equity.”

Table 1   Racial Composition of Players in Major Sports Leagues

Source: Institute for Diversity and Ethics in Sport, Racial and Gender Report Card.

The first selection in this chapter, Edward Rimer’s “Discrimination in Major League Baseball: Hiring Standards for Major League Managers, 1975–1994,” illustrates some of the history of disparate standards used in managerial hiring decisions. At the time of its publication, it delivered a clear message to managers to beware of applying disparate standards in hiring. A more recent study by Janice Madden examines the issue in the NFL, focusing on the baseball manager equivalent, the head coach. The Madden study, and updates, may be viewed at http://www.findjustice.com/UserFiles/File/Report_-_Superior_Performance_Inferior_Opportunities.pdf. That research is described further in the article by Jeremi Duru which appears in this chapter. Since the publication of that earlier research, Madden has conducted a follow-up study to determine the impact of the Rooney Rule. Her conclusion is that the statistical bias that was found earlier against the hiring of African American head coaches no longer exists. This success must, in part, be attributed to the Rooney Rule. See Figure 1 for a snapshot of those original findings.

The readings in this chapter provide the sports business leader with a broad swipe at these issues as well as some of the approaches used to address them. Duru’s article, “The Fritz Pollard Alliance, The Rooney Rule, and the Quest to ‘Level the Playing Field’ in the National Football League,” provides insight into the Rooney Rule. The excerpt from Shropshire, “Diversity, Racism, and Professional Sports Franchise Ownership: Change Must Come from Within,” focuses on ownership. The discussion in this selection highlights the limitations of the law in bringing about change. The piece was written before Bob Johnson (and now Michael Jordan) and Arte Moreno obtained their respective ownership interests. However, no other African Americans or Latinos have yet acquired a controlling ownership interest in a major North American team sport. The excerpt from Kahn, “The Sports Business as a Labor Market Laboratory,” focuses on salary discrimination and contract termination issues. The selection provides an overview of the research available on the issue of differences in pay to players based on race. Race and sports is a global issue, too. The article by Ryan, “The European Union and Fan Racism in European Soccer Stadiums: The Time Has Come for Action” examines the race issue in European soccer. The lessons from all of these excerpts are applicable to broader diversity issues as well.

MANAGERS AND COACHES

DISCRIMINATION IN MAJOR LEAGUE BASEBALL: HIRING STANDARDS FOR MAJOR LEAGUE MANAGERS, 1975-1994

Edward Rimer

In 1975, the Cleveland Indians hired Frank Robinson to be their manager, the first Black to hold such a position in Major League Baseball. This occurred 28 years after Jackie Robinson had successfully integrated professional baseball. As befalls most managers, Frank Robinson was fired and, subsequently, was rehired by two other teams [Ed. Note: now three]. Although other Blacks have become managers and there have been several Hispanic managers, there remains a belief that minorities are not given an equal opportunity to assume administrative and managerial positions in the major leagues. [Ed. Note: See Figure 1 for racial comparisons of coaches in the NFL.]

The purpose of this article is twofold. First, I analyze the backgrounds of those individuals who were managers during the past 20 years (1975–1994) to ascertain what were the implicit standards, if any, that the owners used in making their hiring decisions. Second, having identified such standards, I compare the backgrounds of Black, White, and Hispanic managers to determine whether the standards were applied equally to all managers.

This study differs from previous work in that it seeks to determine what were the standards used to hire managers and whether such standards were applied equally to Blacks, Hispanics, and Whites. The focus is on the hiring actions of the teams, and on whether the qualifications were applied uniformly to all who became managers, rather than on the behaviors of individuals seeking managerial positions.

Historically, employers have used two methods to screen out and discriminate against applicants for certain positions. Applicants [first] may be asked to possess some non-job-related attributes. Courts have continually ruled that employers must demonstrate that the requirements for a job must be essential for its successful completion.

Second, these job-related requirements must be applied equally to all applicants. Personnel management law is replete with edicts that standards must be applied equally in diverse areas such as hiring, firing, compensation, and benefits. In fact, current human resource management theory posits that other functions, such as performance appraisal, also suffer when dissimilar standards are used to evaluate employees. Employers have been able to defend their personnel actions when they have been able to demonstrate that the qualifications are job related and applied equally to all applicants.

… This study attempts to determine whether the job-related requirements were applied equally to all who became managers between 1975 and 1994. In this manner, we would have some indication as to how the courts might rule should an individual seek legal remedies against a team alleging discriminatory hiring/promotion practices.

This is accomplished by comparing the prior jobrelated work experiences of Whites, Blacks, and Hispanics who were managers during the past 20 years, 1975–1994. The purpose of this study is to ascertain whether White, Black, and Hispanic professional baseball players had to possess different attributes to be hired as major league managers. Further, I discuss the extent to which these different hiring standards may preclude or facilitate future success as a manager.

Managerial Skills, Knowledge, and Abilities

Managers need to possess a knowledge of baseball so that they can make strategic decisions as the game progresses. This normally involves setting the starting lineup, determining the starting pitching rotation, and determining when to pinch hit, remove the pitcher, and numerous other options (steal, hit-and-run, etc.) that may occur during a game. Whereas the average fan may have some rudimentary understanding of these aspects of the game, the manager is expected to make these decisions while being cognizant of his team’s abilities as well as what the opposition will do to counter his actions. This knowledge of the game can be gained by anybody playing the game. It is not limited to those who play for specific teams or at certain positions.

Managers also serve as teachers, assisting their players in some of the finer points of the game. Aspects of hitting, fielding, and pitching are all within the purview of the manager. It is common to hear players give credit to their managers and to see photographs in the newspapers (particularly during spring training) of a manager holding a bat and demonstrating a swing or gripping a bat while a circle of players is gathered around him. Managers must also possess leadership abilities. Although their specific styles may differ, managers must be able to instill in their players the confidence and loyalty to perform at their peak performance levels. The ability to teach and be an effective leader is not limited to certain types of players. The literature on both teaching and leadership indicates that there is more than one effective style, and a cursory review of baseball history indicates that infielders, outfielders, pitchers, and catchers have been effective managers.

Whereas knowledge of the job, knowledge of the jobs of those they supervise (the players), and the ability to lead are quite similar to the case of generic management, baseball is unique in that the prior job-related experiences of managers (as players and/or coaches) are readily available and easily quantifiable. The ability to quantify performance has been an essential part of the studies on salary discrimination. Here, however, prior records are evaluated in terms of qualifications for the job as manager. Three distinct prior job-related experiences are analyzed. Specifically, I compare the records of the managers as players, focusing on longevity and several career performance statistics to measure their knowledge of Major League Baseball and potential ability to be major league managers.

Longevity provides the individual with a greater opportunity to learn about the game, leadership techniques, and the like. Managerial experience at the minor league level is used to assess previous opportunities to exercise leadership, and major league coaching background is used as a measure of their teaching and instructional expertise.

The Managerial Pool, 1975–1994

Between 1975 and 1994, 140 different individuals held the position of manager of a Major League Baseball team. Of these 140, 39 had managed prior to 1975; Frank Robinson was the only new manager to begin the 1975 season. In 1975, there were 24 teams. Two teams were added to the American League in 1977, and two teams were added to the National League in 1993. During this 20-year time period, major league teams changed managers 210 times, creating an average of more than 10 opportunities per year for major league teams to hire new managers. Of the 24 managers who started the 1975 season, none was managing the same team at the conclusion of the 1994 season. Of the original 24 managers in 1975, 20 were subsequently rehired by other teams after being terminated. There was a constant turnover of managers, thus providing ample opportunity for the hiring of Black and Hispanic managers.

Of the 140 managers, there were 7 Black managers (Don Baylor, Dusty Baker, Larry Doby, Cito Gaston, Hal McRae, Frank Robinson, and Maury Wills) and 5 foreign-born Hispanic managers (Felipe Alou, Preston Gomez, Marty Martinez, Tony Perez, and Cookie Rojas). [See Table 2.] In addition, 12 individuals managed fewer than 42 games or 25% of a full season. Marty Martinez, who managed 1 game with Seattle in 1986, is the only Black or Hispanic who managed fewer than 42 games. Many of these individuals who managed a limited number of games were hired on an interim basis. This is taken into account when I compare their managerial experiences.

Source: Journal of Sport and Social Issues. Used with permission.

RESULTS

Managers as Major League Players

The most notable prerequisite to being a major league manager is to have played in the major leagues. By performing at the major league level, players demonstrate their abilities under the most repetitive conditions and gain firsthand knowledge of how the game is played and the performance required to succeed at the highest level.

Of the 140 managers, 25 never played at the major league level. Of the remaining 115, 6 were pitchers. Consistent with earlier findings, most played second base or shortstop (47), followed by catcher (25)…. All 25 who did not have major league experience as players were White. All 6 managers who were pitchers in the major leagues were White.

A comparison of the experience of White, Black, and Hispanic managers as major league players reveals that the Black and Hispanic managers have had more extensive and productive careers than have their White counterparts. This is true even after eliminating from the comparison all of the White managers who never played at the major league level….

Even after excluding White managers who never played at the major league level and therefore raising the mean experience for Whites, Black managers have approximately twice as much major league experience as do White managers (i.e., 84% longer, 136% more games, and 159% more at bats). The major league careers of Hispanic managers are 42% longer, having played in 72% more games and with 82% more plate appearances.

Because there is a limited number of Black and Hispanic managers compared to White managers, and because the analysis includes the entire population, no test for statistical significance was performed. I did calculate the standard deviation of each mean to reveal the extent to which there is variation within the White, Black, and Hispanic managers. The greatest variance is among the Hispanic managers, whereas the least is among the Black managers.

As with career longevity, Black and Hispanic managers outperformed the White managers in all offensive categories [as major league players]. Blacks, on average, scored more than twice as many runs and had l76% more hits, 406% more home runs, 249% more runs batted in, and a batting average 7% higher than did White managers. Hispanics also outperformed White managers, but not to the same extent as did the Black managers: 88% more runs, 91% more hits, l63% more home runs, 120% more runs batted in, and a batting average 5% higher than those of White managers. Interestingly, there is less variance among White managers regarding the performance criteria, with Hispanics showing the greatest variance.

Minor League Managerial Experience

In addition to being a player, managing at the minor league level is often considered a prerequisite for obtaining a major league managerial job. It is as a manager that the individual gains experience in game strategy, leadership, and interactions with team administration. Of the 140 managers, almost 70% had managed at the minor league level….

Felipe Alou, Frank Robinson, and Preston Gomez are the only minority major league managers with prior experience as minor league managers….

Whereas the length of experience and performance appears similar, the percentage of Blacks and Hispanics with minor league managerial experience is less than the percentage of Whites with minor league managerial experience. The variance between those who have managed at the minor league level is also similar.

….

DISCUSSION

Standard employment practices compel employers to demonstrate that requirements for a position are job related and that such job requirements are applied equally to all candidates for the position. Baseball managers need to have a knowledge of the game, the ability to teach, and the ability to lead. I identified three prior job-related experiences that are likely to provide the individual with these necessary skills, knowledge, and abilities: major league playing experience, minor league managerial experience, and major league coaching experience.

All but one of the men who managed between 1975 and 1994 had some experience as either a major league player, a minor league manager, or a coach of a major league team. The lone exception, Atlanta Braves owner Ted Turner, managed for one game in 1977. It thus appears that these three conditions are used by teams as part of the hiring process and are considered to be job-related prerequisites for employment as a manager. It is also evident from the analysis that these three qualifications are not considered to be an absolute requirement. Only 55 of the 140 managers (39%) had experience in all three areas studied. Some combination of playing experience, minor league managerial experience, and major league coaching experience is deemed appropriate to be hired as a manager.

The requirement that a manager have major league playing experience was not applied equally to all who were managers between 1975 and 1994. All Black and Hispanic managers had to have played at the major league level and had to have had longer and more productive careers as players than was the case with White managers. This is true even after eliminating from consideration the 25 White managers who never played major league baseball. Only 80% of the White managers had major league playing experience, whereas 100% of the minority managers had performed at the major league level. The data reveal that heightened expectations regarding length of time in the major leagues were applied consistently to all Black managers.

Previous studies would lead one to conclude that this difference in the performance standards is attributable to position segregation. Seven of the minority managers were primarily outfielders (58% of all minority managers as compared to only 9% of White managers were outfielders), and outfielders have consistently had to be more productive in terms of offensive performance. The data reveal, however, that minority outfielders who became managers had longer and more productive careers than did White outfielders who became managers.

….

Between 1975 and 1994, only 18 outfielders became managers. This is consistent with previous research regarding position centrality. However, the total playing, coaching, and minor league managerial experience of minority and White outfielders is different. The minority outfielder/managers spent an average of 23 years as player, coach, and minor league manager; whereas the average was 17 years for the White outfielders with major league playing experience who became managers. There were several White managers who were outfielders but had not played at the major league level.

Minority outfielders who became managers were coaches for an average of 4 years, whereas the White outfielder/managers were coaches for an average of 2 years. Only 28% of the minority outfielder/managers had minor league managerial experience, whereas 55% of the White outfielder/managers managed at the minor league level. The average number of years of managing in the minor leagues was almost equal: 1.8 for the minority outfielders and 2.7 for the White outfielders. The limited number of Black or Hispanic managers who played positions other than outfielder precludes any meaningful comparison to the White managers.

The data show that no marginal Black players, either those who did not make it to the major leagues or those who had limited major league careers, were ever selected to be major league managers during the past 20 years. Although it is not known with any certainty who may have applied for these positions, there are several Blacks with limited playing careers who became coaches but never became managers (e.g., Tommie Aaron, Gene Baker, Curt Motton, and, most recently, Tom Reynolds).

A cursory look at the White managers who did not play at the major league level indicates that a lengthy playing career cannot be considered an essential prerequisite for superior performance as a manager. Two of the more successful managers in the past and present, Earl Weaver and Jim Leyland, are among the 25 who never played Major League Baseball. This leads one to consider the impact on the effectiveness of minority managers who, it appears, are required to possess certain characteristics that are not necessarily correlated with success as a manager. Further analysis of the relationship between a manager’s playing career and managerial record is necessary.

The situation is somewhat reversed when we examine managerial experience in the minor leagues. Although it is the weakest of the three elements (only 69% of all managers had minor league managerial experience), the majority of Black and Hispanic managers did not have an opportunity to manage in the minor leagues. The length and performance of those who did are similar for Blacks, Whites, and Hispanics.

Star players may be hesitant to spend time in the minor leagues, even if it is as the manager of the team. Data on player performance at the major league level indicate that most of the minority managers could be considered star players. Offers to coach at the major league level may appeal to both the player and team, as the player is more visible to the fans. It should be noted that there are numerous star White players who became managers without first obtaining managerial experience in the minor leagues. Yogi Berra, Alvin Dark, Toby Harrah, and Pete Rose are some of the more prominent to follow this career path. Further study is needed to determine the extent to which being a minor league manager provides invaluable experience that is not obtained by either playing or coaching.

….

The large variance in the means for player longevity, performance categories, and years and games managed in the minor leagues indicates the absence of precise prerequisite criteria. A total of 65 managers (46%) had experience in two of the three categories. In addition, 20 were players and minor league managers, 30 were players and had prior coaching experience, and 15 had managed minor league teams and coached. Previous studies of managerial performance have taken into account the abilities of the players managed and the teams’ won–lost records (Horowitz, 1994; Jacobs & Singell, 1993; Kahn, 1993; Porter & Scully, 1982), and neglected to include the backgrounds of the individual managers. Porter and Scully’s evaluation of managers with 5 or more years of experience between 1961 and 1980 determined that Earl Weaver, Sparky Anderson, and Walter Alston were the most efficient. Horowitz’s methodology also concluded that Weaver and Alston were among the best major league managers. Given that these three had limited, if any, major league experience as players (Alston, 1 at bat; Anderson, 1 year with 477 at bats; Weaver, no major league playing experience), we should be cautious before assuming that playing can substitute for minor league [managing] or coaching experience. To the extent that Blacks and Hispanics have longer playing careers and limited coaching and previous managerial experience, they may be at a disadvantage in terms of the training and background necessary to succeed as a manager. Further study is needed to determine what combination of the three job-related activities is most closely related to superior performance as a manager. Additionally, further study is needed to determine whether and to what extent the position played at the major league or minor league level affects the number of years considered appropriate experience and, therefore, the need to be a minor league manager or major league coach before becoming a major league manager.

This study examined the background of all major league managers from 1975 through 1994. Specifically, it compared the playing records, minor league managerial experience, and coaching experience of all those who managed during the past 20 years. All but one (Ted Turner, a team owner) had some combination of the specified job-related experiences. We can thus conclude that these criteria are considered by owners when they hire managers. The amount of experience required as a player, minor league manager, or coach was different for Black, White, and Hispanic managers. Blacks and Hispanics had longer and more productive careers as players than did their White counterparts. Further, there were differences between the minority and White outfielders who became managers. A comparison of the playing careers of the minority and White outfielders who became managers revealed that the minority outfielder/managers outperformed the Whites in all offensive categories and had nearly an identical batting average. Minority managers tended to be outfielders, a position in which they are overrep-resented but a position that has produced a limited number of managers. Black and Hispanic managers had less minor league managerial experience than did White managers and had similar experience as major league coaches. It would appear that major league baseball teams, although using appropriate job-related criteria in the hiring of managers, did not apply these criteria in an equitable manner.

References

Horowitz, I. (1994). Pythagoras, Tommy Lasorda, and me: On evaluating baseball managers. Social Science Quarterly, 75, 187–194.

Jacobs, D., & Singell, L. (1993). Leadership and organizational performance: Isolating links between managers and collective success. Social Science Research, 22, 165–189.

Kahn, L. (1993). Managerial quality, team success, and individual player performance in major league baseball. Industrial and Labor Relations Review, 46, 531–547.

Porter, P., & Scully, G. (1982). Measuring managerial efficiency: The case of baseball. Southern Economic Journal, 49, 642–650.

THE FRITZ POLLARD ALLIANCE, THE ROONEY RULE, AND THE QUEST TO “LEVEL THE PLAYING FIELD” IN THE NATIONAL FOOTBALL LEAGUE

N. Jeremi Duru

INTRODUCTION

The National Football League (the “NFL” or the “League”), like the National Basketball Association (“NBA”) and Major League Baseball (“MLB”), has a long history of racial exclusion.¹ And like these other long-standing American professional sport leagues, desegregation among players preceded desegregation among coaches.² As slowly increasing numbers of minorities assumed NBA head coaching positions and MLB managing positions toward the end of the twentieth century, however, minority coaches were less likely to receive head coaching opportunities than their basketball and baseball counterparts.³ Indeed, as of 2002, only two minorities held head coaching positions in the thirty-two team NFL, and only five, including those two, had held head coaching positions during the League’s modern era.⁴ Four years later, however, the NFL had more than tripled its number of minority head coaches and shone as a model for other athletic institutions seeking to provide head coaching candidates equal employment opportunities.⁵

This article seeks to explore the history of racial exclusion in the NFL, the particular barriers minority coaches seeking NFL head coaching positions have faced, and the effort to level the playing field for such coaches…. Part II explores the travails of the NFL’s first three post-rein-tegration coaches of color as well as statistical evidence revealing that, as of 2002, NFL coaches of color generally suffered inferior opportunities despite exhibiting outstanding performance. Part III examines the campaign launched by attorneys Cyrus Mehri and Johnnie L. Cochran, Jr. to alter NFL teams’ hiring practices, the creation of the Rooney Rule (the “Rule”), and the birth of the Fritz Pollard Alliance of minority coaches, scouts, and front office personnel in the NFL. Finally, Part IV traces the Rooney Rule’s success in creating equal opportunity for coaches of color in the NFL.

[Ed. Note: The author’s discussion of the history of racial exclusion in the NFL is omitted.]

….

In 2002, civil rights attorneys Johnnie L. Cochran, Jr.⁵⁰ and Cyrus Mehri⁵¹ commissioned University of Pennsylvania economist Dr. Janice Madden to analyze the performance of NFL head coaches during the fifteen years between 1986 and 2001 and to compare the success of the five black head coaches who coached during that period against the success of the eighty-six white head coaches who coached during the same period.⁵² Dr. Madden concluded that, by any standard, the black head coaches outperformed the white head coaches: “No matter how we look at success, black coaches are performing better. These data are consistent with blacks having to be better coaches than the whites in order to get a job as head coach in the NFL.”⁵³

Indeed, in every category Dr. Madden studied, black coaches outperformed white coaches.⁵⁴ In terms of total wins per season—the primary category upon which a head coach’s performance is assessed—⁵⁵ black coaches averaged over nine wins, while white coaches averaged eight wins.⁵⁶ While the 1.1 win differential might, at first blush, seem a minor matter, considering that NFL teams play only sixteen games during each regular season, one additional win is extremely significant.⁵⁷ Further, no win is more significant than the ninth, as, during the fifteen years studied, sixty percent (60%) of teams winning nine games advanced to the playoffs while only ten percent (10%) of teams winning eight games advanced to the playoffs.⁵⁸

The disparity in success is even more pronounced when considering coaches’ success in their first seasons with a team.⁵⁹ In their first seasons, black coaches averaged 2.7 more wins than did white coaches in their first seasons and, accordingly, were far more likely to advance their teams to the playoffs than were white coaches.⁶⁰

In addition, in their last seasons before being fired, black coaches outperformed their white counterparts.⁶¹ Black coaches won an average of 1.3 more games in their terminal years than white coaches, and while twenty percent (20%) of the black coaches who were fired led their teams to the playoffs in the year of their firing, only eight percent (8%) of white coaches did the same.⁶²

III.  THE CAMPAIGN TO CHANGE THE NFL

Based on Dr. Madden’s results, Cochran and Mehri authored a report titled, Black Coaches in the National Football League: Superior Performances, Inferior Opportunities. They concluded, based on Dr. Madden’s results, that black head coaches faced more exacting standards than white head coaches and were often dismissed under circumstances that would not have resulted in white head coaches’ dismissals.⁶³ As stark as Madden’s results were, Mehri and Cochran, of course, did not conclude black head coaches were somehow inherently better than white head coaches. Rather, they concluded that because barriers to entry facing black coaches seeking head coaching positions were more formidable than those facing white coaches, the black coaches able to surmount those barriers were exceedingly well equipped to succeed as head coaches. And, of course, as a consequence of those exceedingly high barriers, they argued, many black assistant coaches never received serious consideration for head coaching jobs.⁶⁴ Cochran and Mehri’s report ultimately concluded that despite statistically “superior performance,” black coaches have received “inferior opportunities”: “In case after case, NFL owners have shown more interest in—and patience with—white coaches who don’t win than black coaches who do.”⁶⁵

Armed with this conclusion and statistically significant analyses to support it, Cochran and Mehri possessed critical information in confronting employment discrimination: persuasive evidence that the discrimination actually exists. Over forty years after Congress issued broad-based antidiscriminatory legislative edicts, Americans are reluctant to acknowledge discrimination existing in their organizations.⁶⁶ Racial bias and discrimination in America is now more subtle than overt, and, according to some scholars, often sub-conscious.⁶⁷ Consequently, the suggestion of racial discrimination’s existence may, and often does, strike institutions’ executives as inaccurate and offensive, prompting fierce denials and dampening the possibility of sincere and meaningful settlement negotiations.⁶⁸

Statistically significant evidence of systemic discrimination buttressed by anecdotal evidence of that discrimination’s impact—as opposed to anecdotal evidence alone—is often crucial in prompting institutions to honestly confront the existence of discrimination. Cochran and Mehri had just that, which was sufficient to convince the NFL, which had to its credit previously expressed concern as to the lack of diversity among its head coaches,⁶⁹ that some level of cooperation, as opposed to confrontation, was in order. And, indeed, shortly after the report’s publication, the NFL displayed leadership by creating a committee dedicated to increasing equal employment opportunity for NFL coaching candidates.⁷⁰ Consisting of the owners of several of the League’s teams and chaired by Pittsburgh Steelers owner Dan Rooney, the Workplace Diversity Committee set out to consider the remedial recommendations Cochran and Mehri proffered.⁷¹

A.  Crafting the Rooney Rule

The most notable of Cochran and Mehri’s recommendations was the mandatory interview rule. Arguing that racial bias, whether conscious or unconscious, was steering teams away from head coaching candidates of color, Cochran and Mehri contended NFL teams should be made to do what few had theretofore done—grant candidates of color meaningful head coach job interviews.⁷² Given the opportunities, they believed, coaching candidates of color would exhibit preparedness for head coaching jobs; the coaches of color simply needed the opportunities to compete for positions.⁷³ Cochran and Mehri, therefore, suggested that each NFL team searching for a head coach be required to interview at least one minority candidate before making its hire.⁷⁴ Crucial to the suggestion was that the interview be meaningful—that it be an in-person interview and that the interviewers be among the team’s primary decision-makers.⁷⁵

After some deliberation, the Workplace Diversity Committee recommended the Rule to the broader group of NFL team owners, and the owners agreed by acclamation to implement the suggested rule.⁷⁶ All parties agreed the rule should require nothing beyond a meaningful interview, and that if after the interview the interviewing team chose to hire a non-minority coach, the choice was its to make.⁷⁷ In December of 2002, the NFL announced its mandatory interview rule, which would come to be known as the Rooney Rule in honor of the Workplace Diversity Committee’s chairman, Dan Rooney,⁷⁸ and which would prove to fundamentally change the NFL.⁷⁹

From the start, the Rooney Rule met with significant skepticism.⁸⁰ Indeed, criticism rained down from all quarters. NFL insiders questioned the League’s decision to take its lead in pursuing diversity from two lawyers previously unaffiliated with the League and its internal mechanisms. If anyone should guide the League on these issues, they argued, he or she should be from the football community—from a group of NFL alums or from the League’s, or one of its team’s, front offices. Others, recognizing the Rule contained no accompanying penalty mechanism, wondered whether teams would bother to heed the rule, and if they didn’t, whether the League would do anything about their failures to do so.⁸¹ Still others argued that even assuming teams followed the Rule, because the interviewing team had no obligation to hire a minority coach, the interview would prove merely ornamental.⁸² Burdened with these criticisms, the Rooney Rule’s early life was shaky.

B.  The Birth of an Alliance

Those questioning the propriety of the NFL’s reliance on outsiders with no connection to the NFL community to guide its equal employment opportunity efforts would soon be silenced.

Shortly after Cochran and Mehri issued their report, Floyd Keith, the Executive Director of the Black Coaches Association (“BCA”), an advocacy organization of black collegiate coaches,⁸³ suggested the lawyers consult with John Wooten, a former NFL All-Pro offensive lineman well-known throughout the League for his tenacity and intellectual acuity both on and off the field.⁸⁴ While Wooten was a remarkable player, he made his most lasting impact in NFL front offices, where he worked in various high-level capacities with the Dallas Cowboys, the Philadelphia Eagles, and the Baltimore Ravens over the course of almost thirty years.⁸⁵ More impressive than Wooten’s success as a player or front office executive, however, was his unwavering and expressed commitment to racial equality in the NFL. For years, Wooten decried the almost entirely homogenous composition of the NFL’s head coaching ranks. Having played with and against scores of fellow black players whom he knew would, if given the opportunity, excel as NFL head coaches, Wooten was incensed at their exclusion.

Cochran and Mehri’s report offered quantitative support for what Wooten knew: with a fair chance to take the reins of an NFL team, black head coaches would perform as well, if not better than, white head coaches. Wooten also knew that many black coaches in the League who had consistently been passed over for head coaching positions were anxious to meaningfully compete for those positions and would support the lawyers’ efforts. Wooten committed to assisting Cochran and Mehri’s work in any way he could and suggested they travel to Indianapolis, Indiana, in February of 2003 to meet with the NFL’s black coaches during the NFL Scouting Combine. The Combine, which serves as a nearly week-long tryout for collegiate players seeking NFL jobs,⁸⁶ is the one occasion on which all of the League’s teams and their staffs can be counted on to be in one place and, therefore, presented the perfect opportunity for Cochran and Mehri to meet and share ideas with the individuals they were hoping to help. The lawyers recognized that in order to initiate true reform in the NFL, the primary stakeholders would have to engage in the battle, and they hoped a meeting at the Combine would galvanize their interest in organizing as a unit.

Although Cochran was unable to attend, Mehri represented them both at the Combine. What Mehri imagined would be a gathering of a few dozen black coaches turned out to be a meeting of over one hundred black coaches, scouts, and front office personnel, all deeply concerned about equity in the NFL. The group, though, was not a monolith. Some in the room expressed reluctance to push the NFL and its teams too vociferously for fear of backlash. Others, exceedingly frustrated with lack of opportunity, felt no push could be hard enough. Still others staked out middle ground positions. Overwhelmingly, however, those in the room supported increased organization among them. They wanted to maintain a connection in order that there be a forum in which to engage issues that they, as black coaches, scouts, and front office personnel in the NFL, shared. And they did so, forming an organization and naming it in honor of the individual who preceded and inspired them all. They became the Fritz Pollard Alliance (“FPA”), an affinity group dedicated to equal opportunity of employment in the coaching, scouting, and front office ranks of the NFL.⁸⁷

There was little doubt Wooten would serve as the fledging organization’s chairman, guiding its vision and maintaining a strong relationship with the NFL, where he previously worked and maintained many close contacts and personnel friendships. And when Wooten considered who might effectively manage the organization’s affairs and serve as its public face, a few individuals came to mind, but none more compelling than Kellen Winslow, Sr.

Winslow, one of the NFL’s all time great players, was a tight end with the League’s San Diego Chargers from 1979–1987, during which time he set numerous League records and revolutionized the position.⁸⁸ Whereas tight ends before Winslow were primarily utilized as blockers and rarely called upon to catch anything other than short passes, Winslow combined superior blocking skill with speed and pass-catching ability to rival even the best wide receivers.⁸⁹ Along with his physical abilities, Winslow mixed intelligence, dogged persistence, and compelling leadership ability to become a Hall of Fame player;⁹⁰ the type of player capable of willing his team to win.⁹¹ Because of these characteristics and his tremendous success as a player, Winslow naturally presumed he would, upon retirement, have opportunities to work in the NFL or in major conference collegiate football.⁹² Retirement, however, brought with it a crushing realization when the opportunities he envisioned did not materialize. As Winslow described in his foreword to In Black and White: Race and Sports in America, Kenneth Shropshire’s incisive investigation of the intersection of race and sport:

Winslow’s revelation led him to channel his talents toward exposing inequity in the sports industry, and when he agreed to serve as the FPA’s Executive Director, he carried that passion with him….

As a consequent of the FPA’s support, the Rule, which was just a few months earlier decried as the brainchild of outside agitators, suddenly enjoyed endorsement from a body representing coaches, scouts, and front office personnel of color throughout the League. The Rooney Rule had gained instant credibility.

IV.  THE ROONEY RULE: APPLIED

Credibility, however, offered no guarantee of efficacy, and if the Rule were to be effective, it would need teeth. Detroit Lions’ General Manager Matt Millen’s approach to hiring a new head coach in 2003 would ensure that it had them. In January of that year, the Lions fired their head coach Marty Mornhinweg, after the team suffered through a lackluster season during which they lost thirteen games and won only three.⁹⁵ Three weeks earlier, the San Francisco 49ers had fired their longtime head coach, Steve Mariucci.⁹⁶ Millen wanted Mariucci to lead the Lions and he expressed little interest in maintaining an open mind to other potential candidates. In his single-minded pursuit of Mariucci, Millen hired Mariucci without interviewing any candidates of color.⁹⁷ While such a hiring process would have been unobjectionable just a few months earlier, under the Rooney Rule it was facially non-compliant.

The NFL’s then-Commissioner, Paul Tagliabue, had his test case, and his response would determine the Rule’s fate. If Tagliabue responded with inaction or an empty condemnation, the Rule would be rendered useless as a change agent. It would exist as little more than a symbolic gesture, creating the impression of a League dedicated to equal employment opportunity for coaches of color in the NFL, but having no actual impact. If, on the other hand, Tagliabue substantially punished the Lions, he would, in doing so, signal the NFL’s commitment to the Rooney Rule and to the equity Cochran, Mehri, and the FPA sought to achieve.

Tagliabue’s decision shocked even those hoping for a stout punishment. Explaining that Millen “did not take sufficient steps to satisfy the commitment that [the Lions] made” regarding the Rooney Rule, Tagliabue fined Millen $200,000, and explicated that Millen, not the team for which he worked, would have to pay the fine.⁹⁸ With the fine, Tagliabue made clear that as the Lions’ principal decision-maker, Millen was responsible for following the League’s mandatory interview guidelines, and he would have to pay account.

Notably, Tagliabue did not stop at issuing the fine. He went further still, moving away from the facts of the Lions’ inadherence and issuing broad-based notice as to the League’s unwavering commitment to the Rule. The next principle decision-maker to flout the Rule would, Tagliabue promised, suffer a $500,000 fine.⁹⁹

While the FPA celebrated Tagliabue’s response to the Lions’ head coach hiring process as revealing that the “‘Rooney Rule’ ha[d] finally arrived,”¹⁰⁰ Tagliabue’s actions sparked outrage among Rooney Rule opponents and others who felt it was excessive.¹⁰¹ After all, it did not appear Millen was seeking to exclude from consideration minority candidates to the benefit of a group of Caucasian candidates. He was, rather, committed to hiring a particular person—Steve Mariucci—and was uninterested in considering any other candidate, regardless of race.¹⁰² If the Rule applied in this circumstance, they argued, future decision-makers interested in a particular candidate would offer an interview to a minority candidate simply to fulfill the Rule and for no other reason.¹⁰³ And, indeed, this criticism exposed an obvious potential weakness in the Rule. While the Rule requires a team to grant a minority candidate a meaningful interview, in that the Rule is incapable of directing state of mind, it cannot require that a team grant a candidate meaningful consideration. Thus, the Rule is powerless to prevent the inconsequential interview—the interview with all the trappings of meaningfulness but whose outcome is predetermined.

The Rule’s critics cited this reality as evidence the Rule would be ultimately ineffectual.¹⁰⁴ However, many commentators believe that, more often than one might initially intuit, a face-to-face, in-person, interview with an organization’s primary decision-makers begets meaningful consideration—that sitting down together and discussing at length a common interest potentially melts away conscious or subconscious preconceptions and stereotypes that might otherwise color decision-makers’ judgments.¹⁰⁵ As such, they argued that despite being a process-oriented rule with no hiring mandate, the Rooney Rule carried the power to markedly increase diversity among NFL head coaches.¹⁰⁶

The proponents’ belief was borne out. Indeed, over the course of the several years following its implementation, the Rule has markedly increased diversity among NFL head coaches.¹⁰⁷ As of the Rule’s implementation in 2002, two minorities held NFL head coaching positions.¹⁰⁸ Four years later, during the 2006 season, minority head coaches led seven of the NFL’s thirty-two teams.¹⁰⁹ [Ed. Note: There were six minority head coaches at the start of the 2010 season.] While this progress may not be entirely attributable to the Rule, the Rule has undoubtedly made a major impact, and at least a portion of that impact has occurred under circumstances Rooney Rule critics insisted would reveal the Rule as ineffectual—circumstances suggesting a “meaningful” interview would not spark truly meaningful consideration.

Consider the Cincinnati Bengals’ 2003 search for a head coach. Prior to that year, the Bengals had never in franchise history hired a person of color for its head coach position.¹¹⁰ In fact, during that period, the Bengals had never interviewed a person of color for its offensive coordinator or defensive coordinator positions, the two positions directly under the head coach in the football coaching hierarchy.¹¹¹ Under the Rooney Rule, therefore, the Bengals were obligated to do something they had never done nor indicated desire in doing—they were obligated to interview a minority candidate for their head coaching vacancy. With the opportunity to convince the Bengals of his merit, an opportunity history suggests would not have arisen absent the Rooney Rule, Marvin Lewis, a renowned defensive strategist and the then Washington Redskins defensive coordinator, interviewed for the position and became the Bengals’ head coach.¹¹² And, in the year after his hire, Lewis transformed the Bengals, who were for years the NFL’s worst team, into a playoff contender,¹¹³ a feat for which he narrowly missed receiving the NFL’s American Football Conference Coach of the Year Award.¹¹⁴

Although Lewis has not yet guided his team to the NFL’s Super Bowl game—in which the American Football Conference Champion plays the League’s National Football Conference Champion for the NFL title—another Rooney Rule beneficiary has. In 2004, the Chicago Bears hired Lovie Smith, formerly the St. Louis Rams’ defensive coordinator, as the Bears’ new head coach.¹¹⁵ Smith inherited a weak team, which had, in the previous year, won only 7 games and lost 9.¹¹⁶ In two seasons, however, Smith transformed the Bears’ defense into arguably the best defensive unit in the NFL, and in January of 2007, Smith led his team to a victory in the National Football Conference Championship game and to a consequent Super Bowl berth.¹¹⁷ The 2007 Super Bowl would prove an historic one, as Smith would join Tony Dungy, coach of the Indianapolis Colts team the Bears’ would play on Super Bowl Sunday, as the first African American head coaches in Super Bowl history.¹¹⁸

By his own admission, without the opportunity the Rooney Rule produced, Smith may not have ascended to the NFL head coaching ranks.¹¹⁹ Given an equal opportunity, however, he did so ascend and proceeded to establish himself among the NFL head coaching elite.

CONCLUSION

Five years after the Rooney Rule’s emergence, the Rule is an established feature of the National Football League’s teams’ hiring processes. Indeed, recognizing the Rule’s value, NFL teams have displayed commitment to interviewing candidates of color for their highest level front office positions despite no penalty adhering if they fail to do so.¹²⁰ And, just as diversity has increased among the League’s head coaches, it has increased in the League’s teams’ front offices.¹²¹

In short, the Rooney Rule has succeeded. No team has flouted the Rule since Millen did so in 2003, the Rule has produced increased diversity throughout the League, and the Rule’s beneficiaries have met with substantial success. As such, the Rule is enjoying greater buy-in than ever before—both among those affiliated with the NFL and NFL outsiders committed to ensuring equal employment opportunity in other contexts. Most notably, in October of 2007, the NCAA’s Division I Athletic Directors’ Association, concerned that minorities are disproportionately scarce among the nation’s Division I head football coaching positions, have turned to a form of the Rooney Rule in hopes of increasing equal employment opportunity among minority head coaching candidates.¹²² The organization’s members have committed to including candidates of color among the interviewees for their universities’ head football coaching vacancies.¹²³ Whether the athletic directors’ commitment will translate into greater diversity among Division I head coaches is untold, but if the NFL’s experience with the Rooney Rule is any indicator, prospects are bright.

As Cyrus Mehri and Johnnie L. Cochran, Jr. pressed the NFL to adopt the Rooney Rule, they insisted they had “provided the basis for meaningful change” and that it was the “obligation of the National Football League to see that change happen[ed].”¹²⁴ They were correct, and the League has, indeed, changed. Once an embarrassment among its peer leagues regarding equal employment opportunity for minority coaches, the NFL now stands as a model for other organizations seeking the change it has enjoyed.

Notes

1.  See KENNETH L. SHROPSHIRE, IN BLACK AND WHITE: RACE AND SPORTS IN AMERICA 29-31 (1996) (discussing history of discrimination in all three sports). The NHL, America’s fourth premier sports league, has had a discriminatory history as well, but in that athletes of color have historically played little hockey, discrimination in hockey has been rooted in national origin, dividing “French-Canadian and European players from their American and Anglo-Canadian counterparts.” Kenneth L. Shropshire, Minority Issues in Contemporary Sports, 15 STAN L. & POL’Y REV. 189, 191 n.9 (2004) (citing Lawrence M. Kahn, Discrimination in Professional Sports: A Survey of the Literature, 44 INDUS. & LAB. REL. REV. 395 (1991)).

2.  See JOHNNIE L. COCHRAN, JR. & CYRUS MEHRI, BLACK COACHES IN THE NATIONAL FOOTBALL LEAGUE: SUPERIOR PERFORMANCE, INFERIOR OPPORTUNITIES 1 (2002), http://www.findjustice.com/files/Report_-_Superior_Performance_Inferior_Opportunities.pdf. (noting as of 2002, only 1.5% of the 400 coaches in NFL history were African American).

3.  See Brian W. Collins, Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, 82 N.Y.U. L. REV. 870, 877-884 (2007) (discussing coaching opportunities for African Americans in the NBA and NFL); Shropshire, supra note 1, at 203-05 (noting baseball was “impetus” for diversity initiatives creating opportunities for African Americans in managerial and coaching positions).

4.  Tony Dungy and Herman Edwards were the NFL’s only head coaches of color in 2002. Chris Myers, Sunday Morning QB: Black Coaches Try to Get in the Game, N.Y. DAILY NEWS, Oct. 6, 2006, at 70. Art Shell, Dennis Green, and Ray Rhodes join them as the only people of color to have held NFL head coaching positions in the League’s modern era. Id.

5.  Steve Wieberg, Division I-A Tackles Minority Hiring: Unlike NFL’s Rooney Rule, ADs’ Directive Will Only Encourage, Not Require, Action, USA TODAY, Oct. 3, 2007, at 1C. Electronic copy available at: http://ssrn.com/abstract=1109176.

….

50.  Johnnie L. Cochran, Jr.—Biography, available at http://www.cochranfirm.com/pdf/CochranBrochure.pdf, at 2.

51.  Cyrus Mehri—Biography, available at http://www.findjustice.com/about/attorneys/mehri/.

52.  COCHRAN, JR. & MEHRI, supra note 2, at i-ii.

53.  Id. Exhibit B at 3.

54.  See id. Exhibit B at 1 (“Find[ing] that, by any measure used, black coaches were more successful than white coaches”).

55.  See id. at ii (noting wins and losses are “the currency of football and all team sports”).

56.  Id. at 2.

57.  See id. (recognizing a one-win difference often determines whether a team is successful in reaching the playoffs).

58.  Id.

59.  Id. at 3.

60.  Id.

61.  Id. at 4.

62.  Id.

63.  See id. at i-ii.

64.  See id. at 8-10.

65.  Id. at ii.

66.  See KENNETH SHROPSHIRE, IN BLACK AND WHITE: RACE AND SPORTS IN AMERICA 10 (1996) (discussing various methods individuals use to underplay their discriminatory hiring practices).

67.  Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 323 (1987); R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U L. REV. 803, 829 (2004).

68.  See William L. Kandel, Practicing Law Institute: Litigation and Administrative Practice Course Handbook Series, 682 PRACTICAL L. INST. 469, 483 (2006) (explaining that attacking the character of executives in negotiations as racist often hampers the ability to reach meaningful solutions).

69.  See Collins, supra note 3, at 884 (noting ex-NFL commissioner Paul Tagliabue’s efforts to increase minority hiring before the Rooney Rule’s inception).

70.  Id. at 886.

71.  Id.

72.  See COCHRAN & MEHRI, supra note 2, at 15.

73.  See id. at 14.

74.  See id. at 15.

75.  See Collins supra note 71 at 901-04 (discussing problem of “sham” interviews with the Rooney Rule and difficulty of measuring franchises’ good faith efforts in interviewing minority candidates during hiring process).

76.  See id. at 886 (noting that the NFL Committee on Workplace Diversity’s suggestions were adopted by all thirty-two NFL owners).

77.  Id.

78.  Greg Garber, Thanks to the Rooney Rule, Doors Opened, ESPN.COM, Feb. 9, 2007, http://sports.espn.go.com/nfl/playoffs06/news/story?id=2750645

79.  See id. (discussing the effect of the Rooney Rule on the NFL).

80.  E.g. Jay Nordinger, Color in Coaching, NATIONAL REVIEW, Sept. 1, 2003, available at http://www.nationalreview.com/flashback/nordlinger200504200048.asp.

81.  See Collins supra note 71, at 871 (noting that the Rooney Rule appeared “vague and inefficient” at first).

82.  Id. at 902.

83.  In 2007, the Black Coaches Association changed its name to the Black Coaches and Administrators, and now encompasses black collegiate sports administrators as well. Erika P. Thompson, Black Coaches Association Announces Name Change, BLACK COACHES & ADMINISTRATORS, Jul. 6, 2007, http://bcasports.cstv.com/genrel/072007aaa.html. (last visited January 15, 2008).

84.  See Fritz Pollard Alliance John Wooten Biography, http://www.fpal.org/wooten.php (last visited November 27, 2007) (noting Wooten’s various work as a football player and front office executive).

85.  Id.

86.  NFL Scouting Combine, http://www.nflcombine.net/ (last visited November 27, 2007).

87.  Collins, supra note 71, at 887.

88.  See Jay Paris, Browns’ Winslow is the Mouth that Roars, NORTH COUNTY TIMES, Nov. 2, 2006 (claiming that Kellen Winslow revolutionized the tight end position).

89.  See NFL 1980 League Leaders, http://www.pro-football-reference.com/years/leaders1980.htm (last visited Nov. 27, 2007) (showing Winslow second in the league in receiving yards).

90.  The Pro Football Hall of Fame inducted Winslow in 1995. Pro Football Hall of Fame Kellen Winslow Biography, http://www.profootballhof.com/hof/member.jsp?player_id=233 (last visited Nov. 27, 2007).

91.  Winslow’s capability in this regard is perhaps best illustrated by his performance in a 1982 Chargers playoff victory over the Miami Dolphins, a performance ranking among the greatest individual performances in NFL history. See PAGE 2 STAFF, The List: Best NFL Playoff Performances, ESPN, http://espn.go.com/page2/s/list/NFLplayoffperform.html (last visited Nov. 30, 2007) (ranking Winslow’s performance the second greatest playoff performance of all time). During that game, Winslow refused to allow his team to lose. Despite being treated throughout the game for severe cramps, dehydration, a pinched nerve in his shoulder, and a gash in his lower lip requiring stitches, Winslow caught 13 passes for 166 yards, scored a touchdown, and blocked a Miami Dolphin field goal that would have given the Dolphins the victory. Dan Ralph, The Reluctant Superstar, NFL CANADA, Oct. 16, 2007, http://www.nflcanada.com/News/FeatureWriters/Ralph_Dan/2007/archive.html.

92.  SHROPSHIRE, supra note 1, at xii.

93.  Id. at xi.

….

95.  ESPN 2002 NFL Standings, http://sports.espn.go.com/nfl/standings?season=2002&breakdown=3&split=0 (last visited November 28, 2007).

96.  CBC SPORTS, Lions Hire Mariucci as Head Coach, CANADIAN BROADCASTING CENTRE, Feb. 5, 2003, http://www.cbc.ca/sports/story/2003/02/03/mariucci030203.html.

97.  Collins, supra note 71, at 900-01. Ironically, Mariucci, the coach Millen pursued with such myopia, performed quite poorly as the Lions head coach. During his two-plus seasons with the team, Mariucci amassed a record of fifteen wins and twenty-eight losses and was ultimately terminated in the middle of the 2005 season. Skip Wood, After Digesting Turkey Day Debacle, Lions Fire Mariucci, USA TODAY, Nov. 28, 2005.

98.  Bram A. Maravent, Is the Rooney Rule Affirmative Action?: Analyzing the NFL’s Mandate to its Clubs Regarding Coaching and Front Office Hires, 13 SPORTS LAW J. 233, 243 (2006).

99.  ASSOCIATED PRESS, Millen Fined for not Interviewing Minority Candidates, ESPN, July 5, 2003, http://espn.go.com/nfl/news/2003/0725/1585560.html.

100.  SPORTSLINE.COM WIRE REPORTS, Millen Fined $200K for not Interviewing Minority Candidates, CBS SPORTS, July 5, 2003, http://cbs.sportsline.com/nfl/story/6498949.

101.  Curt Sylvester, Detroit Lions Owner Lashes Out at NFL in Response to Diversity Fine, DETROIT FREE PRESS, July 29, 2003.

102.  Indeed, it merits noting that Millen did invite candidates of color to interview for the Lions’ head coaching position, but recognizing that Millen had already decided to hire Mariucci and that the interviews to which they were being invited would be pro forma, and thus not meaningful, none of the invitees accepted. Collins, supra note 71, at 901.

103.  See id. at 902 (discussing the possibility of “sham” interviews for minority coaching candidates).

104.  Nordlinger, supra note 82.

105.  See SHROPSHIRE, supra note 1, at 37-38 (discussing positive effect of Carol Moseley Braun’s election to the United States Senate on the sensitivity to issues affecting minorities).

106.  See COCHRAN, JR. & MEHRI, supra note 2, at 17 (noting that their proposal for changes in NFL’s hiring process had the capability to promote “meaningful change”).

107.  See Collins, supra note 71, at 907-11 (discussing statistical effect of Rooney Rule).

108.  Maravent, supra note 101, at 245.

109.  Collins, supra note 71, at 907.

110.  Geoff Hobson, The Torch Has Been Passed, CINCINNATI BENGALS, http://www.bengals.com/team/coach.asp?coach_id=7 (last visited Nov. 28, 2007).

111.  Mark Curnutte, Coughlin, Lewis Come to Town, CINCINNATI ENQUIRER, Jan. 10, 2003, 1C.

112.  Damon Hack, Bengals Draw Praise for Hiring of Lewis, N.Y. TIMES, Jan. 17, 2003.

113.  See Jim Corbett, Lewis Confident in Untested Palmer, USA TODAY, May 29, 2004.

114.  Cincinnati Bengals Marvin Lewis Biography, http://www.bengals.com/team/coach.asp?coach_id=7 (last visited November, 28. 2007).

115.  ASSOCIATED PRESS, Bears Hire Smith to be Head Coach, USA TODAY, Jan. 14, 2004.

116.  ESPN 2003 NFL Standings, http://sports.espn.go.com/nfl/standings?season=2003&breakdown=3&split=0.

117.  John Mullin, Super Bowl Bound, CHICAGO TRIBUNE, Jan. 21, 2007, available at http://www.chicagotribune.com/sports/football/bears/cs-070121bearsgamer,0,188867.story?coll=chihomepagepromo440-fea.

118.  Jarrett Bell, Coaches Chasing Super Bowl—And History, USA TODAY, Jan. 17, 2007.

119.  Clifton Brown, NFL Roundup: Bears Hope Takeaways Lead Them to Title, N.Y. TIMES, Jan. 30, 2007.

120.  Although the NFL has strongly encouraged its member teams to interview candidates of color for front office positions, it has stopped short of requiring such interviews. Mark Maske, Expansion of ‘Rooney Rule’ Meets Resistance, WASH. POST, Apr. 13, 2006, at D1. Indeed, the League’s commitment to the Rooney Rule and its underlying principles is so complete that the League committed to interviewing candidates of color when seeking a replacement for former League Commissioner Tagliabue. See Scott Brown, Rooney Rule Helping Minority Coaching Candidates, PITTSBURGH TRIBUNE-REVIEW, Jan. 11, 2007, http://www.pittsburghlive.com/x/pittsburghtrib/sports/steelers/s_488048.html (noting that minority candidate, Fred Nance, was among the five finalists considered to replace Tagliabue) (last visited January 15, 2008).

121.  See Maske, supra note 120, at D1 (noting “the Rooney Rule, or the spirit of it, has led to more opportunities for minorities in NFL front offices”).

122.  Steve Wieberg, Major-College ADs Tackle Minority Hiring, USA TODAY, Oct. 2, 2007.

123.  Id.

124.  COCHRAN, JR. & MEHRI, supra note 2, at 17.

OWNERS

DIVERSITY, RACISM, AND PROFESSIONAL SPORTS FRANCHISE OWNERSHIP: CHANGE MUST COME FROM WITHIN

Kenneth L. Shropshire

One possible path for decreasing actual or perceived racism against African Americans in any business setting is to increase African American ownership. The broad assumption underlying the advocacy of this remedy is that increased diversity in the ownership of an industry will decrease occurrences of discrimination.

….

II.  IDEAL STATE: VALUE OF DIVERSITY IN OWNERSHIP

A.  General Benefit

What would be the primary benefits of greater African American ownership in professional sports? Two of the major benefits would be (1) the social value of diversity and (2) the financial value of diversity. The social value of diversity consists of both the actual value that diversity can bring to an enterprise through the presentation of different points of view and the perceived value that diversity may have in improving the image of an almost all white ownership. The financial value of diversity includes allowing minorities access to a piece of the lucrative sports ownership pie and front office employment, expanding the individual franchise revenues by attracting more fan support and attendance from minorities, and bringing about equity in player salaries without regard to race.

[Ed. Note: The author’s discussion of the actual and perceived values of diversity is omitted.]

….

C.  Ownership Glass Ceilings and Differential Racism

Glass ceilings are present in much of American society. Part of the reason for the existence of such ceilings is the discomfort that many white Americans feel with African Americans in positions of power. African Americans may not be treated dramatically differently by whites in the business setting until they seek a position of power—until they seek to break through the glass ceiling. This has been referred to as a form of “differential racism.”

….

Just as this glass ceiling, or differential racism, may be the reason for an absence of African Americans in top-level positions on the field in sports, in politics, in corporate America, and in the entertainment industry, glass ceilings that keep African Americans from acquiring ownership interests in sports franchises probably exist as well.

III.  LEGAL RECOURSE: CAN THE LAW COMPEL DIVERSITY?

…. One may question whether existing law provides any possible causes of action or remedies by which to increase diversity and African American ownership of professional sports franchises. The conclusion is that present law can only play a limited role in bringing about increased African American ownership in professional sports.

[Ed. Note: The author’s discussion of affirmative action and other applicable laws is omitted.]

….

It cannot be disputed that trust and confidence among fellow owners of a sports league is desirable for the efficiency and success of the league. A bad choice can doom the partnership. There are thirty [now 32] or fewer franchises in each of the professional leagues. Consequently, individuals who enter into a partnership or who expand their partnerships are very selective of whom they permit to join, and the courts are aware of this selectivity. The necessary trust and confidence will not exist if the partnership is compelled by force of law to admit an individual whom the partnership does not want. There will just be too much bad blood and distrust. Once a legal action is brought, the possibility that the petitioner and the partners could work together harmoniously is minimal. Moreover, such legal action could jeopardize the partnership. This is why reinstatement is a disfavored remedy for high-level employees, both in the employment and partnership contexts, and why a judicial mandate of minority sports franchise ownership is even more unlikely.

Thus, antidiscrimination law provides only limited protections to minorities seeking to own professional sports franchises. Title VII does not apply directly, because there will normally not be an existing employer–employee relationship at stake, and Section 1981 only prevents owners from flagrantly discriminating on the basis of race in choosing their co-owners.

….

As it currently stands, the law is clear that the owners in a given league may sell or grant franchises to whomever they choose, and, provided nothing in their decision-making process violates any … laws …, no legal action can force the existing owners to sell to a particular group. The plaintiffs in … two cases based their actions on antitrust laws, arguing against the anti-competitive nature of a league not accepting them as franchise owners. Neither bidder was African American, and neither was successful.

In both the existing franchise purchase and expansion areas, the choice as to which potential owners to bring on board is that of the respective league owners. Just as in any other business, courts are reluctant to compel business owners to take on new partners. So long as the reason for rejection is not illegal, courts are not likely to intervene.

[Ed. Note: The author’s discussion of the impact of litigation and litigation threats is omitted.]

….

IV.  WILL IT HAPPEN? NEED FOR VOLUNTARY EFFORTS

As the previous section indicates, courts are not likely to interpret existing law as a mandate to compel existing professional club owners to admit minority ownership into their league memberships without flagrant racism…. What is likely to be much more effective—at least in the short term—is increased commitment from existing owners and players to recognize the important benefits that diverse ownership in sports can bring about.

V.  CONCLUSION

There are many difficulties in breaking African Americans into the ownership ranks of professional sports. The greatest obstacles are not financial but structural. The owners themselves must somehow be compelled to desire change; however, they likely suffer from the same levels of conscious and unconscious racism as the rest of society. Indeed, the issues discussed in this article are applicable to businesses beyond sports.

The key barrier to change is the legally protected club-biness of the owners. They have the nearly exclusive right to select their co-owners. There is no requirement, unless self-imposed, that the owners accept the best financial offer. As a group, the owners of any league certainly could mandate that any multiowner group seeking a franchise must include African American investors….

It will be difficult to use legal pressure to compel greater African American ownership. No current legislation on either the state or federal level regulates sports franchise ownership. Given the constitutional problems that would arise if such legislation were implemented and the recent public backlash against affirmative action in general, it does not appear that the lack of diversity in franchise ownership will be addressed by statute. In addition, although Section 1981 offers protection from flagrant discrimination, it is ineffective to put any real pressure on the owners to diversify their group.

The burden is thus on league leaders and the athletes to bring about such change.

SALARIES

THE SPORTS BUSINESS AS A LABOR MARKET LABORATORY

Lawrence M. Kahn

Among the forms of discrimination in sports, salary discrimination is the most studied issue. The typical research design—similar to much work in this area in labor economics—is a regression in which log salary is the dependent variable, and the independent variables include performance indicators, team characteristics, and market characteristics, with a dummy variable for white race. If the coefficient on the white indicator is positive and significant, then this potentially offers evidence of discrimination. Alternatively, some researchers have used separate regressions for white and nonwhite players, testing the possibility that performance is rewarded differently by race.

A major difficulty for all labor market research on discrimination is the problem of unobserved or mismeasured variables, such as the quality of schooling among workers in general. However, such problems must surely be less severe in sports than elsewhere. For example, the Baseball Encyclopedia and other baseball data sources allow one to control for very detailed performance indicators like batting average, stolen bases, home runs, career length, team success, and many more. “Occupation” in baseball is one’s position, a far more detailed indicator than, say, “machine operative.” The accuracy of the compensation data in sports, in many cases supplied by the relevant players’ union that keeps copies of the actual player contracts, is very high.

The sport where regression analyses have produced the most evidence of salary discrimination is professional basketball. In the mid-1980s, several studies found statistically significant black salary shortfalls of 11–25 percent after controlling for a variety of performance and market-related statistics (for example, Kahn and Sherer, 1988; Koch and Vander Hill, 1988; Wallace, 1988; Brown, Spiro, and Keenan, 1991).^* However, by the mid-1990s, there were no longer any overall significant racial salary differentials in the NBA, holding performance constant (Hamilton, 1997; Dey, 1997; Bodvarsson and Brastow, 1998). One caveat to this finding is seen in Hamilton’s (1997) results from quantile regressions, which estimate the extent of discrimination at different points of the salary distribution, conditional on productivity. He did not find evidence of discrimination at the 10th, 25th, and 50th salary percentiles, but there was a significant white salary premium of about 20 percent, other things equal, at the 75th percentile of the salary distribution and above.^†

Customer preferences may have something to do with the racial pay gap observed in basketball in the 1980s. For example, Kahn and Sherer (1988) found that, all else equal, during the 1980–86 period each white player generated 5,700 to 13,000 additional fans per year. The dollar value of this extra attendance more than made up for the white salary premium, a finding consistent with the existence of monopsony. Other researchers found a close match between the racial makeup of NBA teams in the 1980s and of the areas where they were located, again suggesting the importance of customer preferences (Brown, Spiro, and Keenan, 1991; Burdekin and Idson, 1991; Hoang and Rascher, 1999). However, by the 1990s, customer preferences for white players were less evident. Dey (1997), for example, found that all else equal, white players added a statistically insignificant 60 fans apiece per season during the 1987–93 period. This evidence is consistent with the decline in the NBA’s overall unexplained white salary premium from the 1980s to the 1990s, although Hamilton’s (1997) results suggest that it is possible that white stars add fans even if the average white player does not.

If NBA fans do have preferences for white players, having white benchwarmers may be a cheap way for teams to satisfy such demands. While early research found that white benchwarmers had longer careers than black benchwarmers (Johnson and Marple, 1973), more recent work does not find that benchwarmers are disproportionately white (Scott, Long, and Somppi, 1985).

In contrast to these findings in basketball, similar regression analyses of salaries in baseball and football have not found much evidence of racial salary discrimination against minorities. For example, in baseball, these kinds of analyses never seem to find a significantly positive salary premium for white players. Among nonpitchers, some studies actually have found significantly negative effects of being white in the late 1970s and 1980s (Christiano, 1986, 1988; Irani, 1996); however, my own reanalysis of the same data used in one of these studies found that these differentials disappeared when a longer list of productivity variables was added (Kahn, 1993). In football in 1989, Kahn (1992) found only very small salary premia (discrimination coefficients) in favor of whites of only 1–4 percent, and these differences were usually not statistically significant. However, nonwhite NFL players earned more in areas with a larger relative nonwhite population than nonwhites elsewhere, and whites earned more in more white metropolitan areas than whites elsewhere. These findings suggest the influence of customers, but they did not add up to large overall racial salary differences in the NFL.^††

Although little evidence exists of a discriminatory salary premium in baseball or football, there is evidence of other forms of discrimination in sports, some of it among customers, and also in hiring, retention, and assignment of players. For example, a larger number of white players seem to lead to added baseball fans, over the time period from the mid-1950s through the 1980s (Hanssen, 1998; Irani, 1996). Moreover, baseball cards for white players sold at a significantly higher price than those of comparable black players in 1989 (Nardinelli and Simon, 1990).

On hiring, there is indirect evidence that black players went later in the NFL draft than whites of equal playing ability during the 1986–91 period (Conlin and Emerson, 1998). However, in basketball, a study found only small, insignificant racial differences in draft order among NBA players on rosters in 1985, conditional on college performance—and these differences favored black players (Kahn and Sherer, 1988). All studies of drafts suffer somewhat from the fact that there is no systematic information available on those not drafted and not on rosters.

On player retention, Jiobu (1988) found that from 1971 to 1985, black players in Major League Baseball had a significantly higher exit rate than whites, other things equal, and Hoang and Rascher (1999) obtained a similar result for the NBA for 1980–91. A reasonable interpretation of these differences in exit rates is that they reflect team decisions not to offer players a new contract….

References

Bodvarsson, Orn and Raymond T. Brastow. 1998. “Do Employers Pay for Consistent Performance?: Evidence from the NBA.” Economic Inquiry. 36:1, pp. 145–60.

Brown, Eleanor, Richard Spiro, and Diane Keenan. 1991. “Wage and Nonwage Discrimination in Professional Basketball: Do Fans Affect It?” American Journal of Economics and Sociology. 50:3, pp. 333–45.

Burdekin, Richard C. K. and Todd L. Idson. 1991. “Customer Preferences, Attendance and the Racial Structure of Professional Basketball Teams.” Applied Economics. 23:1, Part B, pp. 179–86.

Christiano, Kevin J. 1986. “Salary Discrimination in Major League Baseball: The Effect of Race.” Sociology of Sport Journal. 3:2, pp. 144–53.

Christiano, Kevin J. 1988. “Salaries and Race in Professional Baseball: Discrimination 10 Years Later.” Sociology of Sport Journal. 5:2, pp. 136–49.

Conlin, Mike and Patrick M. Emerson. 1998. “Racial Discrimination and Organizational Form: A Study of the National Football League.” Working Paper, Cornell University.

Dey, Matthew S. 1997. “Racial Differences in National Basketball Association Players’ Salaries: Another Look.” The American Economist. 41:2, pp. 84–90.

Goldberger, Arthur S. 1984. “Reverse Regression and Salary Discrimination.” Journal of Human Resources. 19:3, pp. 293–318.

Hamilton, Barton Hughes. 1997. “Racial Discrimination and Professional Basketball Salaries in the 1990s.” Applied Economics. 29:3, pp. 287–96.

Hanssen, Andrew. 1998. “The Cost of Discrimination: A Study of Major League Baseball.” Southern Economic Journal. 64:3, pp. 603–27.

Hoang, Ha and Dan Rascher. 1999. “The NBA, Exit Discrimination, and Career Earnings.” Industrial Relations. 38:1, pp. 69–91.

Irani, Daraius. 1996. “Estimating Customer Discrimination in Baseball Using Panel Data,” in Baseball Economics: Current Research. John Fizel, Elizabeth Gustafson, and Lawrence Hadley, eds. Westport, CT: Praeger, pp. 47–61.

Jiobu, Robert M. 1988. “Racial Inequality in a Public Arena: The Case of Professional Baseball.” Social Forces. 67:2, pp. 524–34.

Johnson, Norris R. and David P. Marple. 1973. “Racial Discrimination in Professional Basketball: An Empirical Test.” Sociological Focus. 6:4, pp. 6–18.

Jones, J. C. H. and William D. Walsh. 1988. “Salary Determination in the National Hockey League: The Effects of Skills, Franchise Characteristics, and Discrimination.” Industrial & Labor Relations Review. 41:4, pp. 592–604.

Kahn, Lawrence M. 1992. “The Effects of Race on Professional Football Players’ Compensation.” Industrial & Labor Relations Review. 45:2, pp. 295–310.

Kahn, Lawrence M. 1993. “Free Agency, Long-term Contracts and Compensation in Major League Baseball; Estimates from Panel Data.” The Review of Economics and Statistics. 75:1, pp. 157–64.

Kahn, Lawrence M. and Peter D. Sherer. 1988. “Racial Differences in Professional Basketball Players’ Compensation.” Journal of Labor Economics. 6:1, pp. 40–61.

Koch, James V. and C. Warren Vander Hill. 1988. “Is There Discrimination in the ‘Black Man’s Game’?” Social Science Quarterly. 69:1, pp. 83–94.

Krashinsky, Michael and Harry A. Krashinsky. 1997. “Do English Canadian Hockey Teams Discriminate Against French Canadian Players?” Canadian Public Policy-Analyse de Politiques. 23:2, pp. 212–6.

Lavoie, Marc, Gilles Grenier, and Serge Coulombe. 1992. “Performance Differentials in the National Hockey League: Discrimination Versus Style-of-Play Thesis.” Canadian Public Policy-Analyse de Politiques. 18:4, pp. 461–69.

Longley, Neil. 1995. “Salary Discrimination in the National Hockey League: The Effects of Team Location.” Canadian Public Policy-Analyse de Politiques. 21:4, pp. 413–22.

Nardinelli, Clark and Curtis Simon. 1990. “Customer Racial Discrimination in the Market for Memorabilia: The Case of Baseball.” Quarterly Journal of Economics. 105:3, pp. 575–95.

Scott, Jr., Frank A., James E. Long, and Ken Somppi. 1985. “Salary vs. Marginal Revenue Product Under Monopoly and Competition: The Case of Professional Basketball.” Atlantic Economic Journal. September 13:3, pp. 50–59.

Wallace, Michael. 1988. “Labor Market Structure and Salary Determination Among Professional Basketball Players.” Work and Occupations. 15:3, pp. 294–312.

Walsh, William D. 1992. “The Entry Problem of Francophones in the National Hockey League: A Systemic Interpretation.” Canadian Public Policy-Analyse de Politiques. 18:4, pp. 443–60.

EUROPEAN FOOTBALL

THE EUROPEAN UNION AND FAN RACISM IN EUROPEAN SOCCER STADIUMS: THE TIME HAS COME FOR ACTION

Michael Ryan

I.  INTRODUCTION

Unlike in America, where there has been a substantial decrease in the incidence of spectator racism at sporting events over the last thirty years, racially motivated incidents still occur frequently at European soccer matches.¹ The prevalence of racist abuse varies from match to match, but at times it can get quite brutal. In one famous episode, Spanish fans pelted Cameroonian player Samuel Eto’o with bottles as he prepared to take a corner kick, and made ape sounds at him every time he touched the ball.² After enduring this abuse for most of the game, Eto’o finally snapped and threatened to walk off the field in protest, despite the fact that there was still nearly fifteen minutes to play. Eventually, he was talked out of doing so by players from both teams,³ but in interviews after the game, Ronaldinho, Eto’o’s team-mate and arguably the finest player in the world, revealed that had Eto’o left the field, he would have followed him.⁴

Unfortunately, the abuse of Eto’o was hardly an isolated event. In another incident, Spanish spectators threw bananas at Cameroonian goalkeeper Carlos Kameni.⁵ At the same time, other fans used bullhorns to taunt Kameni for going to the press to complain about previous racist abuse he had endured.⁶ What made this abuse particularly galling, however, was that it did not come from opposing fans, but instead from supporters of Kameni’s own team.⁷

The problems of spectator racism are hardly just a Spanish problem. The racist chants of Italian fans in Milan caused Ivorian defender Marc Zoro to break down in tears during the middle of a game.⁸ Croatian fans have been known to form human swastikas in the stands.⁹ Dutch fans have hung banners suggesting that African players should go “to a banana tree” instead of playing.¹⁰ In short, fans from virtually every country in Europe have engaged in some type of racist or anti-Semitic abuse.¹¹ Despite the efforts of European soccer authorities, the problem has shown no signs of abating.¹²

Because of soccer’s inability to eliminate spectator racism, the European Union (EU) has expressed an increased interest in enacting measures to combat such abuse. Traditionally, the EU has stayed out of sports-related issues and deferred to the judgment of the organizations that run European sports.¹³ Since 1995, however, the EU has shown an increased willingness to challenge the rules and practices of sports organizations when they affect important Community principles,¹⁴ such as the protection of human rights.¹⁵ Therefore, it should be of little surprise that the EU is considering whether to take action to combat spectator racism in soccer.

As a practical matter, however, the EU’s power is limited. Under the current treaty system, the EU has no direct authority over sport. Therefore, before it can act, the EU must identify a provision in one of its treaties that authorizes it to take the desired action. Article 13 EC of the Treaty of Amsterdam, however, authorizes the EU to take measures designed to eliminate racial discrimination;¹⁶ therefore, Article 13 EC could be interpreted to permit the EU to enact measures to combat spectator racism. This Article argues that it is both necessary and proper to use Article 13 EC as a basis for EU action, and assesses the likely components of an EU anti-spectator racism instrument.

Part II of this Article provides a brief overview of the governing structure of European soccer, as well as the antiracism measures adopted at each level. Part III examines the history of the EU’s involvement in sports as a whole, and details that body’s increased willingness to address problems in soccer, including spectator racism. Part IV details the components of Article 13 EC, which prohibits discrimination on the basis of race, as well the free movement and equal rights provisions that could potentially serve as the basis for any EU action on this topic. This part also assesses the likelihood that each provision will actually be used to produce spectator antiracism legislation. Part V proposes that the EU enact legislation enabling the Member States to impose stiffer penalties for teams whose fans behave in a racist manner. This Article concludes with an assessment of the criticisms most likely to be leveled at the proposed EU instrument and argues that those criticisms are unwarranted.

….

[Ed. Note: Author’s overview of the governing structure of European soccer and the ineffective efforts made to eliminate spectator racism at each level—UEFA, national association, league and club—is omitted.]

III.  THE EU’S INCREASING WILLINGNESS TO GOVERN SPORT AND SPECTATOR RACISM

Founded in the wake of World War II, Europe’s oldest multinational political organization,⁵⁴ the Council of Europe, was founded primarily to prevent future acts of war on the continent.⁵⁵ In the past fifty years, however, the goals of Europe’s multinational organizations have broadened considerably. As the events of the last decade indicate, the EU in particular has expressed an increased willingness to assert jurisdiction over sport even though no treaty provision expressly authorizes it to do so.

In 1995, the EU took its first major action with respect to sport in Bosman. In Bosman, an out-of-contract⁵⁶ Belgian soccer player challenged a rule that required his new team to pay a transfer fee to his old team on the grounds that the requirement for payment impeded his right of free movement.⁵⁷ In analyzing Bosman’s claim, the European Court of Justice (ECJ) explained that the EU typically defers to the decisions of sports governing bodies in many areas where EU law might otherwise apply. The court further stated, however, that when sporting rules affect economic activity (such as those that deal with the ability of professionals to obtain future employment), then sport will be subject to scrutiny under Community law.⁵⁸ After applying EU legal principles, the ECJ concluded that the rule that requires a new team to pay an original team for the rights to an out-of-contract player is “likely to restrict the freedom of movement of players who wish to pursue their activity in another Member State by preventing or deterring them from leaving” their current clubs.⁵⁹ Therefore, the rule was invalidated.⁶⁰

Two years later, in 1997, the EU took another step toward asserting jurisdiction over sport, as it included its first official reference to sport in the Final Act to the Treaty of Amsterdam. The document falls well short of giving the EU general jurisdiction over sport, yet it notes that sport plays a significant role in European society, and called on the institutions of the EU to “listen to sports associations when important questions affecting sport are at issue.”⁶¹

At that time, much as today, a major issue facing soccer was spectator racism. Therefore, especially given the proclamation from the Treaty of Amsterdam, it is unsurprising that the EU chose the same year to get involved with efforts to eliminate spectator racism in football. Specifically, the EU granted 20,000 to a grass-roots antiracism group, which produced an antiracism movie in which more than fifty professional players discussed the effect of spectator racism on the game.⁶² The EU’s funding for this matter was critical to its success. The extra funds allowed the group to feature a number of prominent players, which made the film more effective with young children.⁶³

Two years later, the European Council, in a formal response to the inclusion of sport in the Treaty of Amsterdam, invited the Commission to prepare a report “with a view [toward] safeguarding current sports structures and maintaining the social function of sport within the Community.”⁶⁴ The subsequent Commission report, entitled the Helsinki Report, made several important observations. First, while acknowledging that none of the EU’s treaties specifically reference sport, the Commission stressed that many aspects of EU law still applied to sporting organizations.⁶⁵ The Commission also explained, however, that despite the EU’s ability to reach some areas of sport under the existing treaty system, the Community did not have the authority to implement any large-scale sports intervention because of the lack of a treaty provision giving it direct jurisdiction over athletics.⁶⁶ Despite this limitation, the Commission went on to explain that the EU still had an important role to play in the administration of European sport, particularly when such intervention could be conducted in a manner consistent with the Community’s core values.⁶⁷ In this vein, the Commission observed that existing EU programs could make use of sport in its efforts to combat racism since such action would promote “social democracy.”⁶⁸

After receiving the Helsinki Report, the European Council promulgated the Nice Declaration in 2000. The vast majority of the declaration merely reiterated the Commission’s conclusions: that sports organizations and the individual Member States have primary control over sports, but that the Community should make an effort to preserve the critical social role of sport in Europe.⁶⁹ With respect to racism and xenophobia, however, the Council appeared reluctant to endorse the Community action endorsed by the Commission. Instead of agreeing that the EU should take action, the Council explained that sports federations (such as UEFA or the national associations) should take the lead in formulating measures to combat racism and xenophobia.⁷⁰ Despite this apparent step back, however, the Council left the door open for future EU action to address racism in soccer, as it explained that the EU should continue to examine its policies in order to ensure protection for the benefits of sport.⁷¹

In keeping with the Helsinki Report’s focus on the social effects of sport, two years later the European Monitoring Center on Racism and Xenophobia (EUMC) released a report examining the extent to which fans used the Internet to make racist remarks about players. In the report, the EUMC found that approximately eleven percent of the team-related web sites they examined had at least some racist content, including several that had strong racist themes.⁷² The EUMC concluded that this percentage was significant because it believed that the expression of online racism was likely to mirror the abuse expressed in stadiums.⁷³ In addition to its findings, the study also made a key observation. It noted that the countries with individual laws prohibiting online racism had been the most effective at eliminating racism on fan sites.⁷⁴ Therefore, the EUMC suggested that a resolution be passed at the European level that would require all countries to recognize the crime of spreading racist ideas through the internet.⁷⁵ Although not directly related to spectator racism, this suggestion was significant, given that it marked the first time an EU institution had suggested that the EU take specific action with respect to racist soccer fans.⁷⁶

Soon after the EUMC’s report, the Member States moved toward providing a firm basis for an EU spectator antiracism action by including a provision in the 2004 Constitutional Treaty that would have given the EU competence over areas related to sport. Specifically, the Constitutional Treaty would have allowed the EU to “contribute to the promotion of European sporting issues” by “protecting the physical and moral integrity” of citizens through the use of European laws to establish incentives for Member State compliance.⁷⁷ Despite being signed by the heads of government in 2004, the Treaty is not effective because it has not been ratified by all of the Member States.⁷⁸ If ratified, however, this section will allow the EU to protect the educational and social values in sport by taking action to counter abuses in sport, especially those that cannot be adequately dealt with at a national level.⁷⁹

Finally, in 2006, the EU took its first formal action with respect to spectator racism when the European Parliament issued a declaration strongly condemning fan racism in soccer.⁸⁰ Using the increasing number of racist incidents as an impetus for its action, the declaration noted that Article 13 of the EC Treaty provides that one of the main objectives of the EU is to prevent discrimination based on racial or ethnic origin, and that according to ECJ jurisprudence, football players, like all other workers have a right to a racism-free work environment.⁸¹ Therefore, Parliament used the declaration to call on UEFA to punish national associations and club teams whose fans continually engage in racist abuse.⁸² In addition, the declaration expressed Parliament’s support for a program that would allow referees to stop matches marred by racial abuse.⁸³ Unfortunately, the declaration had no authority to change existing law.⁸⁴ Nevertheless, Parliament’s action is significant because it marks the first time that a major EU institution has specifically addressed the issue of spectator racism with a formal legal instrument.

Also in 2006, the ECJ continued its extension of free market law into the world of sports through its decision in Meca-Medina. In Meca-Medina, two suspended swimmers challenged their suspensions for the use of performance-enhancing drugs on the basis that the suspensions violated the free movement provisions embodied in Articles 39 and 49 EC.⁸⁵ Reaffirming its holding in Bosman, the ECJ explained that professional sports are generally required to comply with the provisions of EU law when sport involves economic activity.⁸⁶ The ECJ went on to refine this holding slightly. It noted that although most sports rules probably have some tangible economic effect, certain rules, such as the anti-doping rule in this case, were based predominantly on legitimate, non-economic grounds (such as ensuring the fairness of the game) and were therefore consistent with EU law.⁸⁷ This narrow exception articulated by the court is critical because it raises the possibility that if a player were to challenge the weak punishment rules currently in place for spectator racism as being an obstacle to the free movement of services, the proponents of the rule would have to justify the leniency of its punishments on legitimate, non-economic grounds. This is something that UEFA and the national associations may find very difficult to do given the robust economic health of soccer as a whole.

Yet again in 2006, the UK Presidency of the EU released its Independent European Sports Review, a report that was designed to look at the implementation of the Nice Declaration.⁸⁸ The report makes several critical observations. First, it recognizes that in certain areas, the discretion of sports organizers should be given extreme deference.⁸⁹ In particular, the report identifies the rules regulating the functioning of competitions, the integrity of sport and competitive balance as those that should generally be left to administrator discretion.⁹⁰ Despite this deference, however, the report suggests that there may be a role for the EU to play in the governance of sport, particularly since racism and violence have flared up in stadiums around Europe.⁹¹ Therefore, the report suggests that the EU enact measures to harmonize the Member States’ approach to hooliganism (and other issues related to fan violence).⁹² Furthermore, the report explains that both UEFA and the national associations should enact stricter rules designed to deter racist behavior, and that those parties should cooperate with the EU to ensure safety and security in football stadiums around Europe.⁹³

Building off the momentum from this report, in 2007 the Commission made its first proposal to deal with sport-specific issues in its 2007 White Paper on Sport.⁹⁴ The White Paper deals with a wide range of sports issues. With respect to spectator racism, the Commission explains that the EU should look at the possibility of enacting new legal instruments to prevent misbehavior at sporting events, including spectator racism.⁹⁵ The Commission did not, however, propose a legal basis for such action.⁹⁶ In the White Paper, the Commission also suggests that existing educational programs regarding fan violence should be examined and that the EU should provide support for successful programs.⁹⁷ Much like Parliament’s Directive, the White Paper creates no binding legal duties. It is nevertheless significant because the Commission uses white papers to make proposals for Community action.⁹⁸ Therefore, the White Paper suggests that the Community may be prepared to take formal action to eliminate spectator racism in soccer.

IV.  POSSIBLE AVENUES FOR EU ACTION ON RACISM IN SOCCER

After the issuance of the White Paper on Sport, the EU appears poised to take action to curtail spectator racism at soccer matches. The EU, however, does not have general lawmaking authority; rather, it only has competence in areas where it has been granted jurisdiction by treaty.⁹⁹ Unfortunately, no EU treaty expressly provides the EU with jurisdiction over sport. However, if the EU could locate a generally-applicable section in one of its treaties that could be interpreted as applying to sport, it would be able to take action to eliminate spectator racism. Four major legal provisions could potentially give the EU jurisdiction over this matter: Article 39 EC (ensuring the free movement of workers), Article 13 EC (general anti-discrimination), the European Convention on Human Rights and the Charter of Fundamental Rights.¹⁰⁰ Each of these four potential bases will be analyzed.

A.  Free Movement of Workers

The free movement of workers is “one of the fundamental freedoms guaranteed by Community law.”¹⁰¹ The pertinent part of the treaty that ensures the freedom of movement for workers mandates “the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.”¹⁰² Free movement rights allow workers to accept offers of employment actually made, to move freely within the Community for the purpose of accepting work, and to stay in another Member State in accordance with provisions governing the employment of nationals.¹⁰³ This right is not without exception. Free movement can be limited due to public policy, public security or health grounds, and does not apply to employment in the public service.¹⁰⁴

It might seem like a stretch to link an antiracism plan to a treaty provision aimed at ensuring free movement for workers, yet such action may be rationalized by explaining that the failure of teams and national associations to eliminate overt acts of spectator racism may make minority players less likely to accept employment in a different country, thereby acting as an obstacle to the exercise of their free movement rights.¹⁰⁵ In fact, this proposition appears to be supported by accounts from former players, some of whom have explained that spectator racism played a prominent role in their decision to turn down offers from foreign teams.¹⁰⁶ Therefore, there appears to be at least some modicum of objective evidence that the EU could use to describe fan racism as an obstacle to free movement.

The protection offered by Article 39 of the EC Treaty is appealing as a basis for EU action for a number of reasons. First, as the plain text of Article 39 indicates, protection is provided for “workers;” the ECJ has interpreted this term broadly, in that both part-time and full-time workers are considered protected.¹⁰⁷ Therefore, professional soccer players will surely be considered “workers” under the terms of the article. Second, the article has been interpreted as prohibiting both direct and indirect discrimination, although indirect discrimination can be justified if there is an objective reason for doing so.¹⁰⁸ Given the practical ramifications of a team or league openly supporting racism, it seems unlikely that a player will ever be able to prove that crowd racism is an act of direct discrimination. By prohibiting indirect discrimination as well, however, it is conceivable that a league or team’s inaction could be interpreted as providing implicit support for such behavior and therefore, constitute a violation of the article. Lastly, Article 39 EC may be particularly appealing as a platform for antiracism action because the treaty explicitly provides that it can serve as the basis for Community action. Specifically, Article 40 EC explains that the Council can issue directives or make regulations in order to ensure the free movement of workers in the Community.¹⁰⁹ Historically, the Council has used this power to promulgate secondary legislation, such as Directive 68/360.¹¹⁰ Therefore, at least initially, Article 39 EC may be an excellent provision upon which to base an EU spectator racism action.

Despite this optimism, there would be three major problems if the EU were to rely on Article 39 EC to give itself a legal basis to act. First, the right of free movement for workers does not apply to persons who are not nationals of an EU Member State.¹¹¹ Whether someone is considered a national of a particular state is determined based on the law of that country.¹¹² Although many European countries have given the term “national” a broad reading by allowing descendants of nationals to be considered nationals themselves,¹¹³ these provisions would not appear to aid many of the targets of racial abuse: players of African descent.¹¹⁴ Therefore, if African players want to gain the protection of EU law, they would be required to acquire dual citizenship in an EU country through the naturalization process. Attaining dual citizenship is easier said than done. Many countries require immigrants to reside in their “new” country for five to ten years before they can obtain citizenship rights.¹¹⁵ The length of the residency requirement, particularly given the short length of most professional athletes’ careers, may prove to be a significant obstacle to providing many minority players any type of protection.

Moreover, the plain language of the article only prohibits discrimination on the basis of nationality.¹¹⁶ It makes no mention of discrimination based on race.¹¹⁷ Although the difference between nationality and race is often minimal (at least in the eyes of the public), as a legal matter, it would be difficult for a black French player, for example, to argue that the abuse he receives is based on his nationality rather than his race. While it may be within the spirit of this provision to prevent discrimination based on racism, the fact remains that the plain text does not allow such an expansive interpretation.

Despite the fact that there is evidence to suggest that spectator racism affects some players’ willingness to play in a new country, the ECJ decision in Germany v. Parliament and Council (Tobacco Directive) seriously limits the EU’s ability to use free movement provisions for such broad purposes.¹¹⁸ In Tobacco Directive, the EU enacted a directive prohibiting various types of advertising for tobacco products.¹¹⁹ The Directive was based on a treaty provision responsible for protecting the internal market.¹²⁰ However, in the case, the ECJ annulled the Directive, which had been enacted pursuant to Article 95 EC.¹²¹ The ECJ found that the directive’s primary purpose was to improve public health rather than to protect the internal market.¹²² In other words, under the ECJ’s case law, an instrument enacted pursuant to Article 95 EC (and perhaps any other market-based provision of the treaty by way of analogy) must actually improve the conditions for the establishment of the internal market, rather than serving as a basis for tangentially-related policy concerns.¹²³

Arguably, any EU action with respect to spectator racism could be distinguished from the EU action taken in the Tobacco Directive case in two ways. First, unlike in the directive in that case, which was based on Article 95 EC, this proposed action could be based on Article 39 EC. This difference could be significant because Article 39 explicitly prohibits discrimination, and therefore has at least some reference to social concerns, while Article 95 EC appears focused solely on economic matters.¹²⁴ In other words, due to this difference, the ECJ could conceivably require a higher quantum of proof of economic effect before allowing a provision under Article 95 EC than it would in review of an instrument promulgated under Article 39 EC. This in turn might make it easier for the EU to pass an antiracism action under Article 39 EC. As a practical matter, however, the Tobacco Directive case has been heralded by commentators as signaling the EU’s intent to finally take “jurisdictional boundaries seriously.”¹²⁵ If this is the case, the EU may have a very difficult time basing this social policy on an economic treaty provision.

Alternatively, unlike in Tobacco Directive, where the directive prohibited certain types of advertising and therefore did not actually facilitate trade in tobacco products, any antiracism action will facilitate rather than prevent the free movement of services by eliminating discriminatory treatment. Despite this distinction, however, the case appears to limit the reach of the EU’s free movement provisions to cases in which there is an “appreciable” impact on competition.¹²⁶ While there is some anecdotal evidence to suggest that fan racism has had an impact on some individual players’ decision to play or not play in a particular country, it is likely that the EU would have to provide more evidence from players who made similar decisions in order to show the requisite level of impact on the free market. In other words, the EU would simply need to provide more information on the effects of fan racism before the ECJ would be likely to uphold the action. As it stands right now, however, such legislation would almost certainly be struck down. Therefore, given these problems, the EU may be better off relying on an alternative basis for taking action with respect to spectator racism.

B.  Anti-Discrimination Provisions

Like the free movement provision detailed above, treaty provisions prohibiting discrimination could also serve as the basis for an EU spectator antiracism instrument. In pertinent part, Article 13 EC provides that the Council can take “appropriate action” to eliminate racial discrimination.¹²⁷ The plain text of the article does not specify whether there are any limits to the types of discrimination that the EU may address, other than to say such action must be “within the limits of the powers” given to the Community.¹²⁸ A procedural limitation to such action, however, is that measures taken pursuant to Article 13 EC must be agreed upon unanimously.¹²⁹ Despite this limitation, Article 13 EC has already served as the basis for one important European Council anti-discrimination measure: Directive 2000/43/EC (Race Directive). Therefore, Article 13 EC may be a particularly promising provision upon which to base an anti-discrimination measure related to spectator racism.

The Race Directive, which was the first piece of binding Community legislation designed to eliminate racial discrimination,¹³⁰ was enacted to ensure that EU Member States respect the principle of equal treatment.¹³¹ This principle requires Member States to eliminate discrimination based on racial or ethnic origin,¹³² including discrimination related to employment.¹³³ Specifically, the directive prohibits three types of discrimination: direct discrimination, indirect discrimination, and harassment.¹³⁴ Direct discrimination occurs when a person is treated less favorably than another because of racial or ethnic origin.¹³⁵ In contrast, indirect discrimination occurs when an apparently neutral provision puts a person of a particular racial or ethnic origin at a disadvantage that cannot be “objectively justified by a legitimate aim.”¹³⁶ Lastly, harassment is considered discriminatory when it is racially motivated and is intended to or has the effect of “violating the dignity of a person” or creates “an intimidating, hostile, degrading, humiliating or offensive environment.”¹³⁷ Member States, however, have the option of applying their own definition of harassment if they see fit.¹³⁸ Pursuant to this directive, Member States were required to take measures to eliminate racial discrimination by July 2003.¹³⁹

Given the breadth of the Race Directive, the basis for such action, Article 13 EC, appears to be an excellent candidate for the EU to utilize to take action to eliminate spectator racism. In fact, if the Race Directive were broadly interpreted, spectator racist acts would almost certainly already constitute unlawful discrimination under the Race Directive. Therefore, because the Race Directive has been applied by the ECJ in its jurisprudence, it seems reasonable to conclude that if the EU were to adopt a similar anti-discrimination provision, it would have the competence to do so under Article 13 EC.

C.  European Convention on Human Rights

Alternatively, the European Convention on Human Rights (ECHR) could theoretically serve as the basis for EU action. The ECHR was originally signed in 1950 under the authority of the Council of Europe.¹⁴⁰ Designed to provide international protection for human rights, the Convention has since been ratified by 47 European countries, including all of the Member States of the EU.¹⁴¹ In pertinent part, Article 14 of the ECHR states that the rights and freedoms set forth in the Convention cannot be abridged based on any type of discrimination, including racial discrimination.¹⁴²

Despite the presence of this promising language, the ECHR’s ability to serve as a basis for a Community antiracism instrument is limited for three reasons. First, the Convention does not recognize a right to employment.¹⁴³ Therefore, acts of discrimination that affect a person’s ability to work do not appear to be covered by the ECHR. Second, although all of the countries comprising the EU have signed the ECHR, the EU itself has not signed or ratified the document.¹⁴⁴ Furthermore, the ECJ has held that the EU does not have competence to accede to the Convention.¹⁴⁵ This is significant because if the EU is not able to accede to the ECHR, it does not have the ability to rely on its provisions as a basis for enacting laws pertaining to human rights.¹⁴⁶ Finally, even if the EU were able to accede to the ECHR, the ECHR by itself may not be capable of serving as a platform for positive action in the absence of a European Court of Human Rights (CHR) decision requiring it to do so.¹⁴⁷ Given the fact that the CHR only hears complaints related to the ECHR,¹⁴⁸ and that the ECHR does not cover the right to work,¹⁴⁹ the chances of the CHR handing down a decision protecting the right to work seem highly unlikely. Therefore, if the ECHR can only serve as the basis for positive action following a case in the CHR, the ECHR’s utility with respect to this problem is nearly non-existent.

Although the ECHR cannot serve as the basis for Community action, it may still have persuasive value. While the EU cannot accede to the ECHR, the Treaty of Amsterdam calls for Member States to respect fundamental rights as laid out in the ECHR.¹⁵⁰ Therefore, while an antiracism provision could not be based on the ECHR, the ECHR is nevertheless indicative of the Community’s willingness to take the action necessary to protect human rights, and could potentially be used to persuade the opponents of any antiracism action that such action would be consistent with the ideas behind the EU.

D.  Charter of Fundamental Rights

Building off the momentum from the 50th anniversary of the enactment of the ECHR, the EU revisited its treatment of fundamental rights when a number of individual countries signed the Charter of Fundamental Rights (ECFR) in December 2000.¹⁵¹ The ECFR differs from the ECHR in two significant ways. First, unlike the ECHR, which was adopted by the Council of Europe, the ECFR was promulgated by the EU, which has fewer members than the Council of Europe.¹⁵² Second, the ECFR constitutes a significant expansion in human rights protection over the ECHR, in that the ECFR provides greater protection for the civil, economic, political and social rights of EU residents.¹⁵³

The ECFR explicitly prohibits all racial discrimination.¹⁵⁴ And because the ECFR was incorporated into the draft constitution, which has since been signed by all of the heads of the Member States,¹⁵⁵ it could theoretically provide the basis of an EU spectator antiracism provision. Until the provisions incorporated in the Constitutional Treaty are deemed legally effective via ratification by each of the Member States, however, the ECFR, like the ECHR, can only be used in a persuasive, rather than substantive manner.¹⁵⁶

V.  THESIS: WHAT EU ACTION SHOULD LOOK LIKE?

Absent a limiting provision in the treaty article providing the basis for the action, the EU can produce a wide range of secondary legislation to effectuate its goals. There are two major types of secondary legislation: regulations and directives. Regulations are generally applicable, and are binding in their entirety on all Member States.¹⁵⁷ In contrast, directives set goals for the Member States to which they are addressed, but leave the exact method for achieving those goals to the discretion of the Member States themselves.¹⁵⁸ Therefore, while regulations are immediately grafted into each individual country’s law, directives allow each individual nation to select the best way to achieve a goal for itself. Because soccer’s organizing bodies have failed to eliminate the problem of fan racism despite “trying” to do so for a number of years, the ideal way to handle this issue would be for the EU to pass a regulation mandating stiff penalties for spectator racism. The requirement of unanimous agreement¹⁵⁹ for measures based on Article 13 EC, however, renders this possibility extremely remote, since many countries like to retain as much control as possible over the exact measures used to implement Community goals.¹⁶⁰ Therefore, any EU action taken pursuant to this article will likely take the form of a directive.

The Race Directive is a major EU antiracism provision based on Article 13 EC. In fact, the Race Directive, if broadly read, could be interpreted as already prohibiting spectator racism. As a practical matter, however, the Race Directive has had no effect on the expression of such attitudes at soccer stadiums across Europe since its enactment in 2000. This suggests that the Race Directive has been unable to address this problem, and that some type of additional measure - one that is focused specifically on spectator racism - is required to effectively police spectator racism.

Because the validity of its provisions have never been challenged in the ECJ,¹⁶¹ it would seem reasonable to assume that an EU directive on spectator racism, although different, could look very much like the Race Directive and be legally acceptable. In fact, it might even be possible to amend the Race Directive to reach the problems of spectator racism. As a practical matter, however, the EU should probably promulgate a separate directive as opposed to amending the Race Directive. This is the case because dealing with spectator racism seems to require more intrusive intervention than was necessary to deal with racism generally under the Race Directive. For example, reports have suggested that the Race Directive has been very effective despite the fact that “harassment” can be defined in accordance with the law of an individual Member State;¹⁶² however, to reach spectator behavior and to make the clubs liable for such behavior, the definition of harassment would have to be broadened considerably to ensure spectator behavior and club liability for such behavior come within the purview of the directive’s prohibition. In other words, amending the Race Directive to reflect the broader definition of harassment that would be required to stymie spectator racism is simply unnecessary for the Race Directive to be effective. Therefore, because the principle of proportionality requires that the EU take action only when it is absolutely necessary, a separate directive, which broadens the definition of harassment only with respect to fan racism, may be more desirable than an amendment that affects provisions related to racism generally.¹⁶³

The Race Directive has been effective despite the fact that it does not establish the maximum penalties for violation of the directive, instead choosing to leave all questions regarding penalties to the discretion of the Member States. Again, the Race Directive appears to have been successful despite its use of a hands-off approach with respect to penalties; for soccer, however, one of the major problems with the current enforcement scheme is that the penalties available to the national associations are simply not severe enough to encourage clubs to root out racist behavior amongst their fans. Therefore, while setting higher maximum penalties appears necessary in soccer, similar amendments to the Race Directive, at least thus far, appear unnecessary. In other words, the amendments that would be required to allow the Race Directive to effectively police spectator behavior would broaden the directive’s reach well beyond what is necessary for the provision to reach its general goals, and again may make the Race Directive a poor candidate for amendment.

Although amending the Race Directive would probably be a poor idea, many of the provisions of a new directive would likely mirror some aspects of the Race Directive. For example, the proposed directive would also likely begin with a purpose statement. In short, the proposed directive’s purpose statement would explain that its purpose is to lay a framework for combating racism in soccer as expressed by spectators before, during and after matches, with a view toward effectuating the principle of equal treatment. Then, the Council could explain that the principle of equal treatment requires the elimination of all acts of racism or discrimination in soccer stadiums.

In addition, the proposed directive, like the Race Directive, should carefully define the scope of its authority. In the proposed directive, the EU should broadly construe the substantive reach of the directive by applying it to all spectators, teams and national associations playing or organizing professional soccer within the EU, which is the widest scope possible. Unfortunately, limiting the scope in this way will prevent the EU from reaching much of the most virulent racism taking place in Eastern Europe, as many of the countries with the most offensive fans are not yet Member States and are therefore not subject to EU law.¹⁶⁴ Since many of those countries have expressed interest in joining the EU,¹⁶⁵ however, the fact that the EU has taken such action may encourage those countries to voluntarily comply.¹⁶⁶

Furthermore, given the complicated nature of this problem, the Member States should be given up to three years to adopt the provisions necessary to comply with the proposed directive, just as they were when the Race Directive’s prohibition on discrimination was enacted. Obviously, if an individual country wanted to comply more quickly, it would have the option to do so; but as many commentators have noted, spectator racism is a problem caused by a number of factors.¹⁶⁷ Therefore, the Member States, in conjunction with UEFA, the national associations and the clubs, will likely need a period of time during which they can try any number of tactics to eliminate this problem without having to fear incurring EU sanctions. Therefore, it may be wise to provide a short grace period, in which the Member States can determine which antiracism measures work best, and allow them to implement those measures before compliance with the directive is required.

Although any Council action would likely be similar to the Race Directive in a number of ways, the proposed directive should also differ from the Race Directive in order to target its effects to the problem of spectator racism. For example, the new directive should adopt a broader definition of the term “harassment” and make the revised definition a floor under which no Member State can go below. In the Race Directive, “harassment” is defined as conduct that violates the dignity of a person or creates a hostile, degrading or offensive environment.¹⁶⁸ This definition appears broad enough to encompass acts of spectator racism. The last sentence of the definition provides, however, that Member States may use their own definition in lieu of the EU standard. This raises the possibility that a state could adopt a more narrow definition, and therefore eviscerate the protection intended by the directive.¹⁶⁹ In order to prevent Member States from adopting a lower standard, the new directive should adopt most of the Race Directive’s definition of harassment. It should remove the exception that allows the term to be defined in accordance with the law of the Member States.

Additionally, the Council should add a provision that explains that the failure of a club to eliminate spectator racism is considered harassment by the club, and therefore constitutes unlawful discrimination and subjects the club to punishment. This clarification is necessary because it ensures that clubs will be held responsible for the failure of their fans to act in an appropriate manner. As a matter of policy, attributing the racist acts of a team’s fans to the team itself is reasonable because UEFA has traditionally held teams accountable for their fans’ racist behavior. Furthermore, holding a team accountable is an appropriate measure because it will encourage the clubs, who make a great deal of money selling tickets to fans, to behave more responsibly when determining who to sell to.

Lastly, the proposed directive should permit the Member States to impose stiff criminal penalties on teams that fail to comply with the directive.¹⁷⁰ As explained above, the current system, in which the national associations and UEFA have been left with the authority to impose penalties, has led to punishments that are laughable at best. Therefore, the proposed directive should suggest that Member States use their general powers of governance to themselves punish teams and national associations that do not eliminate spectator racism.

Under the current system, the penalties that teams currently incur for racist fan behavior have been imposed by the national associations or UEFA,¹⁷¹ so the possibility of governmental sanctions would certainly be a significant change. There is no mechanism, however, to make an EU directive require an organization such as UEFA to adopt higher maximum penalties because directives are addressed to the Member States.¹⁷² Given that the Member States are generally required to transpose its obligations into national law, however, it is only reasonable to allow the same national governments to impose penalties on teams and fans that behave inappropriately.

While it might seem counter-intuitive to establish higher maximums rather than a higher minimum penalty, doing so will finally allow more significant fines to be imposed.¹⁷³ Interestingly, there is no section in the Race Directive that enumerates the maximum penalties available for violation. There is, however, a precedent for such action in the antiracism area. The EU recently enacted a separate measure that enumerates the maximum allowable penalty for people who intentionally incite others to commit racial violence.¹⁷⁴ This suggests that the EU could properly take similar action with respect to the penalties for spectator racism. Therefore, like the EU’s recent action to prevent the incitement of racial incidents, I would introduce a penalty system which would provide a range of maximum penalties for teams whose fans behave in a racist manner.

Furthermore, with respect to the exact contents of a discipline system, the EU should propose a progressive system. In other words, the maximum penalty that can be imposed for a violation of the directive should increase with each successive violation, with additional increases possible depending on the severity of the incident. For a first offense, Member States should be able to individually ban offending fans for up to five years, fine the offending club up to the equivalent of five games’ gate receipts, and require stadium closure for up to three games; for each successive offense, another decade can be added to the fan’s ban, and another game’s gate receipts or ground closure can be assessed to the team. Looking at each component individually, a ban is an effective tool because it allows the removal of an offending fan from soccer stadiums for an extended period of time, whereby he or she will no longer be capable of inciting spectator racism inside the stadium.¹⁷⁵ Also, by increasing the amount that clubs can be fined, many teams will now have the financial motivation that may be required for them to root out racist fans. This is especially appropriate because one of each team’s primary sources of income comes from ticket sales. In assessing these fines, however, it is important to recognize that different teams have different size fan bases and therefore, different abilities to pay; in other words, rather than fining teams in absolute monetary figures, the amount of a team’s fine should be based on the average per game gate receipts of the offending team. Similarly, by allowing the closure of an offending team’s stadium, the directive will provide yet another powerful incentive for teams to comply. This seems appropriate in an era where some teams make more than $5 million every time that their stadium opens for a game.¹⁷⁶ Thus, teams will have an incredible financial incentive, in addition to paying fines, to comply with the anti-discrimination requirement.

VI.  POTENTIAL OBJECTIONS TO THIS PLAN

Although an EU anti-spectator racism directive would appear to have a sound legal foundation, critics of the directive could theoretically object for at least three major reasons. In short, critics could argue that the directive violates the principles of subsidiarity and proportionality, both of which are formal limits on EU action. Furthermore, UEFA and the national associations could argue that while the EU may technically have the legal authority to take this action, as a policy matter it should not because EU authorities have traditionally deferred to sports organizations on a number of matters. However, all three of these objections are unlikely to be persuasive.

A.  Principle of Subsidiarity

In recognition of the fact that the EU is a body of limited legislative competence, Article 5 of the EC provides that the EU should take action only when doing so is consistent with the principle of subsidiarity.¹⁷⁷ The principle of subsidiarity requires that the Community take action only when the objectives of the proposed action cannot sufficiently be achieved by the Member States, and when the scale of the effects of the proposed action can be better achieved by Community action.¹⁷⁸ Therefore, one potential objection to the proposed directive is that such action would violate the principle of subsidiarity because effective measures could be taken at the national level.

Practical experience, however, explains that the Member States (as well as UEFA and the national associations) have not dealt with this problem adequately. Extensive accounts of the racial abuse inflicted upon minority players appear as far back as the 1970s.¹⁷⁹ Therefore, assuming that UEFA and the national associations have been paying attention to what happens at the games they organize, soccer’s current governing structure has had knowledge of this problem for over thirty years, yet the problem persists. This suggests that the current scheme, in which national authorities are left with complete discretion to punish such behavior, is incapable of providing the protection of basic human dignity that the EU and its corresponding treaties require. In contrast, in areas where the EU has acted to reduce racial discrimination outside of sport, its efforts appear to have been quite effective.¹⁸⁰ Therefore, it appears reasonable to conclude that the EU may provide an effective means to combat spectator racism that the Member States are simply incapable of equaling.

Furthermore, the evidence in areas where the EU has acted suggests that its action in the area of racial discrimination have been quite effective. For example, the above-mentioned Racial Equality Directive required Member States to enact domestic legislation by the end of 2006.¹⁸¹ In looking at the effects of Member State compliance, the study found that after the enactment of harmonizing measures, nearly every country experienced a significant increase in the number of racist crimes, which could suggest that countries are more willing to take action to combat such behavior.¹⁸² Further-more, the report suggested that those countries which had taken stronger measures to implement the EU’s requirements, such as the provision for a special racial adjudication body, were far more likely to have effective sanctions against racism.¹⁸³ Therefore, this report suggests that action at the EU level may provide a useful way to combat racism that cannot be achieved by the Member States alone.

B. Principle of Proportionality

Protocol 30 of the Treaty of Amsterdam provides that Community measures should leave as much scope for national decision as possible, so long as it can leave discretion to the Member States while ensuring that the requirements of the Treaty are met.¹⁸⁴ In other words, when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.¹⁸⁵ Therefore, a challenger to this proposed directive could argue that it does not meet the requirements for the principle of proportionality on three grounds: that the measure is not suitable to achieve a legitimate goal, that the measure is not necessary to achieve that goal, and that the measure has an excessive effect on other interests.¹⁸⁶

With respect to the first complaint, eliminating crowd racism is a legitimate goal for the EU to undertake, as in recent years, it has made the protection of human rights one of its most fundamental goals.¹⁸⁷ In fact, it is difficult to imagine a goal that is more legitimate for the EU to undertake than to eliminate racism, given its history of human rights protection.¹⁸⁸

Furthermore, as mentioned in the previous section, the proposed directive is absolutely necessary to prevent additional racist acts. In the absence of EU legislation, neither UEFA nor the national associations have taken effective steps toward eliminating fan racist behavior. Given the success of the EU’s other efforts to stop racism, however, it appears likely that the EU may be capable of taking such action in an effective manner.

The proposed directive is consistent with the principle of proportionality because it does not have an excessive effect on the private interests of UEFA or the national associations. By adopting a directive as opposed to a regulation, the Member States will retain the ability to establish comprehensive antiracism programs that best serve their own, individual needs. And although the Member States, at least in the eyes of the EU, will be responsible for implementing measures to eliminate fan racism, as a practical matter, since most countries have allowed their national associations to govern almost all other aspects of soccer, one would expect the national associations to work with the Member States to formulate their antiracism plan. In other words, because the directive does not require the government to authorize a certain type of penalty in all situations, national associations and UEFA could still potentially have a say in the penalties that the Member States will choose to assess for racist behavior. Furthermore, nothing in the directive prohibits UEFA or the national associations from imposing fines of their own; therefore, their own discretion in this matter will not be limited at all. Finally, by giving Member States three years to determine which antiracism measures will be most effective, both UEFA and the national associations will have a great deal of time in which to persuade the Member States to use its preferred methods to achieve the EU’s goal. Therefore, although soccer’s governing bodies will no longer have complete control over the game, they will still have a sufficient opportunity to protect their interests.

C.  Other Objections from UEFA/National Associations

In the fallout from Bosman, European soccer authorities loudly voiced their displeasure with the EU’s willingness to interfere with soccer-related affairs. In fact, for more than one year after the Bosman decision, UEFA refused to amend its rules to comport with the ECJ’s decision.¹⁸⁹ UEFA’s reaction to the ECJ decision reflected a constant theme underlying its attitude toward the EU: that UEFA should have control over European football, and that the EU should leave it alone to do so.¹⁹⁰ Therefore, it would not be unreasonable to believe that UEFA would lobby against any EU action designed to limit its discretion in soccer-related matters.

In the decade since the Bosman decision, however, UEFA’s stance toward the EU has softened considerably, particularly with regard to matters related to spectator racism. For example, in 2003, UEFA opened an office in Brussels in order to facilitate its ability to work with the EU on all matters related to soccer, including racism.¹⁹¹ Furthermore, in 2005, when the European Parliament was considering whether to pass its resolution regarding racism in soccer, UEFA made a public statement indicating it intended to support the tougher penalties suggested in the declaration.¹⁹² In 2007, Jonathan Hill, who serves as UEFA’s delegate to the EU, publicly suggested that UEFA should work with the EU to eliminate spectator racism.¹⁹³ In other words, while UEFA often resists EU intervention in sport, it might actually be willing to accept EU intervention to help deal with this problem. Therefore, this directive could meet minimal resistance, or perhaps even garner support, from UEFA.

VII.  CONCLUSION

Spectator racism, despite the continuing efforts of European soccer’s governing bodies, remains a serious problem. Over the past few years, however, the EU has taken steps toward enacting legislation to combat this problem. With the publication of the 2007 White Paper on Sport, it actually seems poised to do so. Although this is not an area in which the EU has traditionally acted, its current jurisprudence on discrimination suggests that it has the power to adopt a measure that would require Member States to adopt measures designed to eliminate crowd racism. Furthermore, given that the EU has committed itself to protecting basic human rights, it would be necessary and appropriate for the EU to take action, particularly when Member States have not been able to adequately address this problem. Therefore, the EU should take steps to address spectator racism before it further tarnishes the sport and again make soccer enjoyable for all.

Notes

1.  ESPN Sportscenter: Beautiful Game Turned Ugly (ESPN television broadcast June 4, 2006), available at http://www.youtube.com/watch?v=W-iRLmaZf4A [hereinafter Beautiful Game Turned Ugly]. But see Phoebe Weaver Williams, Performing in a Racially Hostile Environment, 6 Marq. Sports L.J. 287, 287 n.2 (1996) (detailing the prevalence of fan racism in America).

2.  Sid Lowe, Eto’o on Verge of Walking Off After Racist Abuse at Zaragoza, Telegraph, Feb. 27, 2006, http://www.telegraph.co.uk/sport/main.jhtml?xml=/sport/2006/02/27/sfnrac27.xml.

3.  Id.

4.  Id.

5.  Beautiful Game Turned Ugly, supra note 1.

6.  Id.

7.  See id. The abuse can hardly be blamed on the quality of Kameni’s play; he was named the African Goalkeeper of the Year in 2006/07. See Jon Carter, African Nations Cup 2008, ESPN Soccernet, Jan. 14, 2008, http://soccernet.espn.go.com/columns/story?id=488562&root=global&&cc=5901.

8.  Zoro Suffers More Racist Abuse, BBC Sport, Nov. 27, 2005, http://news.bbc.co.uk/sport2/hi/football/africa/4476412.stm.

9.  Mark Irwin, Nasty Croats Form Swastika, The Sun, Oct. 10, 2006, http://www.thesun.co.uk/sol/homepage/sport/football/article66475.ece.

10.  Racist Banner Mars Match, Football Against Racism in Europe (FARE), Feb. 17, 2005, http://www.farenet.org/default.asp?intPageID=7&intArticleID=463.

11.  European Union Distressed by Pre-World Cup Racism, (National Public Radio broadcast, June 4, 2006), available at http://www.npr.org/templates/story/story.php?storyId=5450741.

12.  See id.

13.  See Stratis Camatsos, European Sports, The Transfer System and Competition Law: Will They Ever Find a Competitive Balance, 12 Sports Law. J. 155, 155 (2005) (explaining that in the past few years, “there has been increased judicial and legal analysis of [soccer] and its rules”).

14.  Ken Foster, European Law and Football: Who’s in Charge?, 1 Soccer & Soc’y 39, 39–40 (2000).

15.  Activities of the European Union: Human Rights, http://europa.eu/pol/rights/indexen.htm (last visited Oct. 11, 2008).

16.  Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1 [hereinafter Treaty of Amsterdam].

….

54.  See Sophie Lobey, The History, Role and Activities of the Council of Europe: Facts, Figures and Information Sources, http://www.nyulawglobal.org/globalex/CouncilofEurope.htm#A2 (last visited Oct. 13, 2008).

55.  The History of the European Union: 1945–1959, http://europa.eu/abc/history/1945-1959/indexen.htm (last visited Oct. 13, 2008).

56.  An out-of-contract player is one who no longer has a valid, enforceable contract with his or her team. In most American professional sports, these players would be free to sign with any team they wish; under the rule challenged in Bosman, however, a new team was required to pay a player’s old team as compensation if the new team wanted to sign the player, despite the fact that the new team technically had no enforceable contractual rights to that player. See Football Industry Group, Fact-Sheet One: The Bosman Case, EU Law, and the Transfer System, http://www.liv.ac.uk/footballindustry/bosman.html (last visited Oct. 13, 2008).

57.  Case C-415/93, Union royale belge des societes de football association ASBL v. Bosman, 1995 E.C.R. I-04921.

58.  Id.

59.  Id.

60.  Id.

61.  Treaty of Amsterdam, supra note 16.

62.  Jon Garland & Michael Rowe, Racism and Antiracism in Football 61 (2001).

63.  Id.

64.  Report from the Commission to the European Council: The Helsinki Report on Sport, at 3, COM (1999) 644 final (Dec. 10, 1999).

65.  Id. at 6.

66.  Id.

67.  Id. at 5-6.

68.  Id. at 5. Generally speaking, social democracy “is a political outlook that promotes welfare of all citizens and prevents wide disparities among citizens.” Furthermore, “social democracy usually results in considerable control by government to address social inequalities.” See Arthur R. Pinto, Globalization and the Study of Comparative Corporate Governance, 23 Wis. Int’l L.J. 477, 494 (2005).

69.  European Council, The Nice Declaration, available in European Sport Review, supra note 17, at 141.

70.  Id. at 142.

71.  Id. at 144.

72.  Carlo Balestri, Racism, Football and the Internet 6-7, available at http://fra.europa.eu/fra/material/pub/football/Football.pdf (last visited Oct. 10, 2008).

73.  Id. at 9.

74.  Id. at 7-8.

75.  Id. at 10.

76.  See id. at 4 (stating that the report is the first time even research has been done in the area).

77.  Treaty Establishing a Constitution for Europe, art. 3-282, Oct. 29, 2004, 2004 O.J. (C 310) 1.

78.  Jean-Claude Piris, The Constitution of Europe: A Legal Analysis 7-9 (noting that both France and the Netherlands have not ratified the Treaty, leaving it ineffective).

79.  European Year of Education Through Sport: Mid-term Review as Sport Gets Its Place in the Constitution (June 22, 2004), http://europa.eu/rapid/pressReleasesAction.do?reference=IP/04/774&format=HTML&aged=0&language=EN&guiLanguage=en (last visited Oct. 11, 2008).

80.  Declaration of the European Parliament on Tackling Racism in Football, Parliament Declaration P6 TA(2006)0080 (2006).

81.  Id.

82.  Id.

83.  Id.

84.  See Damian Chalmers et al., European Union Law 137 (2006) (explaining that declarations are generally considered “soft law,” as they have “no legally binding force but which nevertheless may have practical effects”).

85.  Case C-519/04 P, Meca-Medina v. Comm’n, 2006 E.C.R. I-06991.

86.  Id.

87.  See id. (explaining that “purely sporting rules have never been excluded generally by the Court of Justice from the scope of the provisions of the Treaty.” Id. at *14. And, that “the provisions of Community law concerning freedom of movement for persons and freedom to provide services do not preclude rules or practices justified on non-economic grounds which relate to the particular nature and context of certain sporting events”). Later in the opinion, the ECJ reiterated that “the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down.” Id.

88.  European Sport Review, supra note 17, at 21.

89.  Id. at 31.

90.  Id. at 32-33, 53.

91.  Id. at 147.

92.  Id. at 129, 132.

93.  European Sport Review, supra note 17, at 136.

94.  Commission White Paper on Sport, at 2, COM (2007) 391 final (July 11, 2007).

95.  Id. at 8.

96.  Id.

97.  Id. at 8-9.

98.  Europa Glossary White Paper, http://europa.eu/scadplus/glossary/whitepaperen.htm (last visited Oct. 11, 2008).

99.  Treaty Establishing the European Community art. 5, Nov. 10, 1997, 1997 O.J. (C 340) 3 [hereinafter EC Treaty].

100.  EC Treaty arts. 39, 13; Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature, Nov. 4, 1950, Europ. T.S. No. 005 [hereinafter ECHR]; Charter of Fundamental Rights of the European Union, Dec. 18, 2000, 2000 O.J. (C 364) 1. If Article 95 EC were to be given an extremely broad interpretation, perhaps it too could serve as the basis for EU action in this area. In pertinent part, Article 95 EC permits “[t]he Council … [to] adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” EC Treaty art. 95(1). Therefore, at least initially, it appears that if spectator racism can be proven to have an effect on the internal market, Article 95 EC could potentially serve as the basis for EU action. However, the other provisions of the article, as well as its judicial interpretation likely preclude such an expansive reading of the treaty. For example, the next section of Article 95 EC, explicitly states that the previous section does “not apply … to [provisions related to] the free movement of persons nor to those relating to the rights and interests of employed persons.” EC Treaty art. 95(2). However, the provisions relating to the free movement of workers are probably one of the most likely ways to produce EU action in this area. See EC Treaty art. 39. Furthermore, the ECJ has explained that measures based on Article 95(1) must genuinely have the object of eliminating “appreciable” distortions in competition. See Case C-376/98, Germany v. Parliament and Council, 2000 E.C.R. I-8419 [hereinafter Tobacco Directive]. In other words, the EU cannot allow other policies to “piggy-back” on to Article 95 by claiming the instrument is designed to address a miniscule distortion in competition. Chalmers et al., supra note 84, at 473. Given this interpretation of Article 95 EC, under which the ECJ was unwilling to allow the EU to take measures to deter the advertising of tobacco products (which is exactly the type of social policy, like an antiracism policy, which would seem likely to garner widespread support), the likelihood of Article 95 EC providing a sound legal basis for EU antiracism action seems improbable at best. See id. (noting that the ECJ was “unwilling to allow [Article 95] to be used … as a basis for a full-blown anti-tobacco policy”). Therefore, this Article does not include Article 95 EC within the foregoing discussion.

101.  European Commission, Free Movement of Workers and the Principle of Equal Treatment, http://ec.europa.eu/employmentsocial/freemovement/index/en.htm (last visited Oct. 11, 2008).

102.  EC Treaty art. 39(2).

103.  EC Treaty art. 39(3).

104.  EC Treaty art. 39(3)-(4).

105.  Unfortunately, a recent search of the ECJ web site did not locate any cases in which “indirect discrimination” was interpreted to include actions by third parties as opposed to employers. One recent case, however, explained that Article 39 “prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result.” See Case C-237/94, O’Flynn v. Ajudication Officer, 1996 E.C.R. I-2617. The failure of teams and national associations to effectively eliminate fan racism, therefore, certainly seems like it could be interpreted to be the type of “covert” discrimination that constitutes discriminatory treatment in violation of Article 39.

106.  See Richie Moran, Racism in Football: A Victim’s Perspective, in The Future of Football: Challenges for the Twenty-First Century 190, 190 (Jon Garland et al. eds., 2000) (detailing the decision of British player Richie Moran’s decision to quit soccer because of racism); see also University of Leicester Center for the Sociology of Sport, Fact Sheet 6: Racism and Football (June 2002), http://www.le.ac.uk/so/css/resources/factsheets/fs6.html (last visited Oct. 12, 2008) (detailing the decision of British player Dalian Atkinson’s decision to leave his prominent Spanish team after being subjected to racist abuse).

107.  EC Treaty art. 39; Case 53/81, D.M. Levin v. Staatssecretaris van Justitie, 1982 E.C.R. 01035.

108.  Freidl Weiss & Frank Wooldridge, Free Movement of Persons within the European Community 43 (Kluwer Law International 2002).

109.  EC Treaty art. 40.

110.  Weiss & Wooldridge, supra note 108, at 41. In 2004, Directive 68/360, which had abolished “restrictions on movement and residence within the Community for workers or Member States and their families,” was repealed when its contents were merged into Directive 2004/38/EC in substantially the same form. See General Provisions for Movement and Residence of Workers and Their Families (Feb. 28, 2004), http://europa.eu/scadplus/leg/en/lvb/l23011a.htm (last visited Oct. 12, 2008).

111.  Weiss & Wooldridge, supra note 108, at 41.

112.  See Case C-369/90, Micheletti v. Delegacion del Gobierno en Cantabria, 1992 E.C.R. I-4239 (noting that “it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality”).

113.  See Ralph H. Folsom, Principles of European Union Law 131 (2005).

114.  A number of black European players have been subjected to racist abuse by spectators. See Beautiful Game Turned Ugly, supra note 1 (detailing French player Thierry Henry’s battle with fan racism). African players, such as Samuel Eto’o and Marc Zoro, whose stories were detailed earlier in this Article, would not be protected by a change in EU law based on this provision. See Lowe, supra note 2; see Zoro Suffers More Racist Abuse, supra note 8.

115.  Michael A. Becker, Managing Diversity in the European Union: Inclusive European Citizenship and Third Country Nationals, 7 Yale Hum. Rts. & Dev. L.J. 132, 152 n.109 (2004).

116.  See EC Treaty art. 39(2).

117.  See id.

118.  See Tobacco Directive, supra note 100.

119.  Id.; Council Directive 98/43/EC, arts. 1, 3, 1998 O.J. (L 213 9).

120.  See Tobacco Directive, supra note 100.

121.  Id.

122.  Id.

123.  See Chalmers et al., supra note 84, at 473.

124.  See EC Treaty art. 95.

125.  Mattias Kumm & Victor Ferreres Comella, The Primacy Clause of the Constitutional Treaty and the Future of Constitutional Conflict in the European Union, 3 Int’l J. Const. L. 473, 484 (2005).

126.  See Tobacco Directive, supra note 100. The ECJ explained that such a requirement was necessary to prevent the “unlimited” extension of Community powers into areas in which the EU was not intended to have competence. See id.

127.  EC Treaty art. 13(1).

128.  Id.

129.  Chalmers et al., supra note 84, at 875.

130.  Mark Bell, Beyond European Labor Law?, Reflections on the EU Racial Equality Directive, 8 Eur. L.J. 384, 384 (2002).

131.  Council Directive 2000/43, art. 1, 2000 O.J. (L 180) 22, 24 (EC).

132.  Id. art. 2(1).

133.  Council Directive 2000/78/, pmbl., 2000 O.J. (L 303) 16, 16 (EC). This directive, which prohibits employment discrimination, does not list race as a prohibited ground for discrimination; however, this omission is explained by the fact that the Council considers racial employment discrimination to already be prohibited by the Race Directive. Id.

134.  Council Directive 2000/43/, art. 2, 2000 O.J. (L 180) 22, 24 (EC).

135.  Id. art. 2(2)(a).

136.  Id. art. 2(2)(b).

137.  Id. art. 2(3).

138.  Id. For example, the UK has arguably adopted a definition for harassment that is more narrow than what is set forth in the Race Directive. See Lizzie Barnes, Constitutional and Conceptual Complexities in UK Implementation of the EU Harassment Provisions, 36 Indus. L.J. 446, 452 (2007).

139.  Council Directive 2000/43/, art. 16, 2000 O.J. (L 180) 22, 26 (EC).

140.  European Convention on Human Rights (ECHR), http://europa.eu/scadplus/glossary/eu human rights convention/en.htm (last visited Oct. 12, 2008).

141.  Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&CL=ENG (listing the 47 countries that have ratified the ECHR) (last visited Oct. 12, 2008).

142.  ECHR art. 14, supra note 100.

143.  See generally id.

144.  See Kumm & Comella, supra note 125, at 486.

145.  See Opinion 2/94, Opinion Pursuant to Article 228(6) of the EC Treaty, 1996 E.C.R. I-1759.

146.  See id.

147.  See Damira Kamchibekova, State Responsibility for Extraterritorial Human Rights Violations, 13 Buff. Hum. Rts. L. Rev. 87, 97 (2007).

148.  See Jason N.E. Varuhas, One Person Can Make a Difference: An Individual Petition System for International Environmental Law, 3 N.Z. J. Pub. & Int’l L. 329, 331 (2005) (explaining that the CHR only hears complains based on the ECHR).

149.  See ECHR, supra note 100 (detailing the rights protected, but including no provision creating an affirmative right to work).

150.  Id.

151.  Justice & Home AFF., Eur. Comm’n, The Charter of Fundamental Rights of the EU: All Personal, Civil, Political, Economic and Social Rights in One Simple Text, http://www.ec.europa.eu/justicehome/fsj/rights/charter/fsjrightscharteren.htm [hereinafter Charter of Fundamental Rights of the EU] (last visited Sept. 16, 2008).

152.  Id.

153.  Id.

154.  Charter of Fundamental Rights of the European Union art. 21(1), 2000 O.J. (C 364) 1.

155.  Ingolf Pernice, Integrating the Charter of Fundamental Rights into the Constitution of the European Union: Practical and Theoretical Propositions, 10 Colum. J. Eur. L. 5, 5 (2003).

156.  Charter of Fundamental Rights of the EU, supra note 151.

157.  EC Treaty art. 249.

158.  Id.

159.  See supra text accompanying note 129.

160.  See Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 Vand. L. Rev. 1629, 1658 (2006) (noting that “member states tend to prefer directives to regulations”).

161.  In fact, this provision has only been referenced in four judgments published in the Official Journal since its enactment in 2000. See http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en to search for ECJ case law (last visited Oct. 13, 2008).

162.  See infra notes 180-83 and accompanying text.

163.  See infra Part VI.B.

164.  See Beautiful Game Turned Ugly, supra note 1. Much of the worst spectator racism occurs in Eastern Europe, where few countries have had the opportunity to join the EU.

165.  At various points, a number of Eastern European countries with serious spectator racism problems have expressed a desire to join the EU. See, e.g., Croatia’s EU Hopes: MEP’s to Vote in Strasbourg on State of Play, European Parliament, Apr. 17, 2007, http://www.europarl.europa.eu/news/public/storypage/030-5248-106-04-16-903-20070412STO05232-2007-16-04-2007/defaulten.htm (detailing Croatia’s hopes of joining the EU); EU Opens Entry Talks with Turkey, CNN.com, Oct. 4, 2005, http://www.cnn.com/2005/WORLD/europe/10/03/eu.turkeytalks/index.html (detailing Turkey’s efforts to join the EU); Ukraine Wants to Join EU While Preserving Ties with Russia: Kuchma, EUbusiness.com, May 17, 2003, http://www.eubusiness.com/Ukraine/110410 (detailing the statement of the Ukrainian President); Yugoslavia Aims to Join EU, CNN.com, Nov. 15, 2000, http://archives.cnn.com/2000/WORLD/europe/11/15/yugoslavia.eu/index.html (reporting the remarks of Yugoslavian President Kostuncia).

166.  See Ryan Moshell, And Then There Was One: The Outlook for a Self-Regulatory United States Amidst a Global Trend Toward Comprehensive Data Protection, 37 Tex. Tech. L. Rev. 357, 364 n.57 (explaining that in the field of data protection, many of the aspiring EU members in Eastern Europe adopted laws based on EU legislation, despite the fact that they were not bound to do so).

167.  See European Union Distressed by Pre-World Cup Racism, supra note 11 (blaming mass immigration and inexperience dealing with blacks as some of the causes of spectator racism).

168.  Council Directive 2000/43, art. 2, 3, 2000 O.J. (L 180) 22,24.

169.  Chalmers et al., supra note 84, at 901-02.

170.  Again, the Member States would not necessarily have to impose stiffer penalties, but they would be allowed to do so under the directive.

171.  See supra text accompanying notes 21-25.

172.  Chalmers et al., supra note 84, at 133.

173.  See, e.g., Racism Punished, The Times (London), Nov. 9, 2005, at 83 (explaining that the maximum fine that the Spanish soccer federation could impose on a team with racist fans was just €6000).

174.  See Press Release, Council of the European Union, Framework Decision on Racism and Xenophobia (Apr. 19, 2007), http://www.consilium.europa.eu/ueDocs/cmsData/docs/pressData/en/misc/93739.pdf (requiring the Member States to ensure that racist conduct is “punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.”).

175.  See Football Ban Orders Take Effect, BBC News, Aug. 29, 2006, http://news.bbc.co.uk/1/hi/scotland/5293288.stm (recounting the quotes of Scottish Justice Minister Cathy Jamieson following the enactment of a new rule allowing the police to ban fans for up to ten years for behaving inappropriately).

176.  Stadium Move Boosts Arsenal Figures, SKYNews, Sept. 24, 2007, http://news.sky.com/skynews/article/0,,30400-1285410,00.html (noting that Arsenal takes in “an average of 3.1m per game”).

177.  EC Treaty art. 5.

178.  Id.

179.  See Garland & Rowe, supra note 62, at 38-44.

180.  Eur. Union Agency for Fundamental Rights, Report on Racism and Xenophobia in the Member States of the EU 123-24 (2007), http://fra.europa.eu/fra/material/pub/racism/reportracism0807en.pdf [hereinafter EUAFR]. In looking at the effects of the Race Directive, this study found that after the Member States enacted harmonizing measures, nearly every country experienced a significant increase in the number of racist crimes, which could suggest that countries are more willing to take action to combat such behavior. Id. Furthermore, the report suggested that the countries which had taken stronger measures to implement the EU’s requirements, such as the provision for a special racial adjudication body, were far more likely to have effective sanctions against racism. Id.

181.  Id. at 19.

182.  Id. at 123-24.

183.  Id. at 38.

184.  Treaty of Amsterdam protocol 30, supra note 16.

185.  Case C-331/88, R v. Minister of Agriculture, Fisheries and Food ex parte Fedesa, 1990 E.C.R. I-4023.

186.  Chalmers et al., supra note 84, at 449.

187.  See Elizabeth F. Defeis, Human Rights and the European Union: Who Decides? Possible Conflicts Between the European Court of Justice and the European Court of Human Rights, 19 Dick. J. Int’l L. 301, 302 (2001).

188.  See generally supra note 16 and accompanying text.

189.  See Lindsey Valaine Briggs, UEFA v. The European Community: Attempts of the Governing Body of European Soccer to Circumvent EU Freedom of Movement and Antidiscrimination Labor Law, 6 Chi. J. Int’l L. 439, 447-48 (2005).

190.  See Gianni Infantino, Meca-Medina: A Step Backwards for the European Sports Model and the Specificity of Sport? (2006), http://www.uefa.com/multimediafiles/download/uefa/keytopics/480401download.pdf (explaining that UEFA’s position on the holding in this case was not that sport should be “above the law,” as had been contended in the past).

191.  See UEFA Opens on EU Doorstep, BBC Sport, Nov. 26, 2003, http://www.sportbusiness.com/news/153234/uefa-opens-on-eu-doorstep.

192.  UEFA Backs New EU Antiracism Law, BBC Sport, Nov. 30, 2005, http://news.bbc.co.uk/sport1/hi/football/africa/4485282.stm.

193.  Jonathan Hill, UEFA, Research Lecture at Loughborough University 3 (Mar. 21, 2007) (transcript available at www-staff.lboro.ac.uk/euojd/Jonathan%20Hill%20at%20Loughborough%20University%20March%202007.doc).

Discussion Questions

1.  Will the election of Barack Obama have any impact on race-related issues in sports? Explain your answer.

2.  What are the benefits of the Rooney Rule and Tagliabue’s precedent?

3.  What are the implications if racism in European soccer is not effectively addressed?

4.  What use can sports business leaders make of the statistics presented in the article by Rimer?

5.  Is there business value to increased minority sports franchise ownership?

6.  Not too long ago, a key diversity issue was the absence of African American NFL quarterbacks. Why has this issue, and many related player diversity issues, largely disappeared?

7.  Why doesn’t the law compel greater diversity at the ownership level?

8.  What impact does the addition of two owners of color—Arte Moreno and Robert Johnson—have on the overall sports diversity picture?

9.  Why are there fewer minorities in niche and individual sports than in team sports?

10.  If you were to begin a league from scratch today, how might you avoid many of the diversity issues confronting leaders in existing sports enterprises?

11.  What is the primary barrier to preventing top level antiracism regulations in European soccer? Explain the complexity of this barrier.

*While there may still be omitted variables that could have explained the ceteris paribus white salary advantage, reverse regression tests, which can under some restricted circumstances take account of such problems (Goldberger, 1984), showed even larger apparent discrimination coefficients against black players (Kahn and Sherer, 1988). In fact, these larger effects suggest that black players had better unmeasured productivity characteristics than whites, at least under the statistical assumptions outlined by Goldberger (1984).

†Logically, if there is no ceteris paribus pay gap on average, and white stars receive a premium, then blacks at the bottom should earn more than whites. Hamilton (1997) finds point estimates in this direction, but they are not statistically significant.

††A lively literature has developed on the issue of discrimination against French Canadians in the National Hockey League. Some authors have found apparent salary discrimination against this group in Canadian cities outside Quebec province, a pattern consistent with the notion of customer discrimination (Jones and Walsh, 1988; Longley, 1995). Yet others have disputed this interpretation and the findings as well (Krashinsky and Krashinsky, 1997). There is also a debate over whether French Canadians face entry barriers into the NHL (Walsh, 1992; Lavoie, Grenier, and Coulombe, 1992).