Council of State Ruling on Sports Neutrality

Extract

[...] The Council of State's ruling also proceeds to an affirmation of the sporting neutrality as a structuring principle of the public service of sport. An unprecedented consecration of sporting neutrality as a legitimate requirement of general interest One of the major contributions of the decision of 29 June 2023 lies in the consecration of the principle of sporting neutrality as a public order imperative, justifying the imposition of restrictions on the fundamental freedoms of license holders. This consecration is based on two foundations: the preservation of public sporting order and the proportionality control applied to the restrictions imposed. [...]

[...] In accordance with its constant jurisprudence, the Council of State subjects this restriction to proportionality control, as consecrated by the Constitutional Council (Decision No. 2003-467 DC of 13 March 2003). This control requires that any restriction be justified, necessary and proportionate to the pursued objective. In this case, the ban only applies to official competitions, leaving intact the freedom of license holders outside the strictly competitive framework. In addition, this approach is consistent with the jurisprudence of the European Court of Human Rights (ECHR, Ebrahimian v. [...]

[...] II- A problematic extension of the principle of neutrality to the detriment of the fundamental freedoms of license holders The judgment rendered by the Council of State on June marks a significant jurisprudential shift, the scope of which raises important questions. By extending the scope of the principle of neutrality to license holders of a sports federation, the administrative jurisdiction is carrying out a conceptual mutation that blurs the established boundaries between the obligations of public officials and the freedoms of users. The issue is not trivial. [...]

[...] It could lead, in the long term, to a dilution of freedom of expression in the public space, under the pretext of a preventive public order, whose contours remain evolving and difficult to grasp. In short, the Council of State's ruling of 29 June 2023 consecrates an expanded regulatory power of sports federations, legitimizing the regulation of personal conviction expression in a competitive framework.I). However, it raises, correspondingly, the question of the limits to such an extension, in light of the constitutional and conventional requirements for the protection of fundamental freedomsII). [...]

[...] A more nuanced reasoning would have been possible. The ECHR, through a constant jurisprudence, imposes a rigorous balancing of the restrictions imposed on fundamental freedoms and the general interest objectives pursued. By imposing a uniform ban, without taking into account the specific contexts and without demonstrating a real disturbance to public order, the Council of State deviates from this requirement. Such a restriction, although formulated in neutral terms, actually affects certain categories of licensees in a differentiated manner, particularly those for whom clothing is a central element of their identity. [...]