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Defining a Sport: A Bridge Too Far for VAT Exemptions?

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About The Author

Ben Cisneros (Regular Writer)

Ben is a third-year law student at Selwyn College, Cambridge, currently spending this year studying law at the Universidad Autónoma de Madrid as part of the Erasmus scheme. He has a keen interest in Sports law, and is a future trainee of boutique firm, Morgan Sports Law. Outside of academia, Ben is a keen singer and actor with a unflinching love of Wasps and England rugby.

Sports is the common denominator in the world that brings everyone together.

Stephen M. Ross

The law on Value Added Tax (VAT) has thrown up some fascinating questions over the years. In the process of determining whether organisations can gain access to various exemptions, the Tax Tribunals have had to rule upon vexed debates such as whether Jaffa Cakes are biscuits or cakes, while the Court of Appeal in Revenue & Customs v Proctor & Gamble UK [2009] had to consider whether Pringles constitute crisps.

Recently, the law of VAT triggered another such debate; this time, about whether Bridge can be classed as a sport. Though this sounds like the sort of debate that might be had down the pub, this is not the first time the question has come before the courts. In R (English Bridge Union) v Sport England [2015], the English Bridge Union (EBU) failed to convince the High Court that Bridge is a sport for the purposes of lottery funding, after lawyers for Sport England, succeeded in arguing that Bridge was no more a sport than “sitting at home, reading a book”.

Yet, whether this is true is debatable. After all, Duplicate Bridge – one version of the card game – is played competitively at national and international level: it has its own ‘Champions Cup’ and ‘Premier League’, and matches are even streamed online. In fact, it is recognised as a sport by the tax authorities of Austria, Denmark, France, the Netherlands and Belgium.

Indeed, the extent of the debate surrounding this issue saw the EU’s highest court – the European Court of Justice (ECJ) – get involved in English Bridge Union v HRMC Commissioners [2017]. However, as this article argues, its decision that Bridge is not a sport was weak and lacking in sufficiently comprehensive analysis; it should therefore be questioned before it is applied.

English Bridge Union v HMRC Commissioners

The Facts

The issue of whether Bridge should be classed as a sport reached the ECJ after the UK Upper Tribunal (Tax and Chancery Chamber) requested a Preliminary Reference under Article 267 TFEU to help it deal with a dispute over the EBU’s unsuccessful application to HMRC for a tax rebate under Directive 2006/112/EC (the VAT Directive).

The English Bridge Union (EBU) is the national body responsible for regulating Bridge. At present, the EBU must pay VAT on entry fees charged to tournament participants – it therefore passes the additional cost onto entrants. The EBU had argued that it should benefit from the exemption from VAT granted by Article 132(1)(m) of the VAT Directive which applies to “the supply of certain services closely linked to sport or physical education”. It is estimated that this rebate would have been worth around £100,000 a year to the EBU.

The EBU’s initial application was rejected by HMRC on the ground that it felt that a “sport” within the meaning of this provision must have a significant physical element. However, the EBU challenged this in a Tribunal, pointing out the VAT Directive does not provide a definition of “sport”. With the EBU having failed at first instance, the UKUT was hearing its appeal when it made its reference to the ECJ.

Before the issue reached the Grand Chamber of the ECJ, the Advocate-General Szpunar gave a preliminary, non-binding ruling in which he concluded that Duplicate Bridge should be classed as a sport for the purposes of the VAT Directive. In his view:

The fact that tournaments take place on an international stage and that the results of the game seem to be directly dependent on the skill and training invested in the activity… point in the direction of [Duplicate Bridge] being a sport. Considerable mental effort and training are necessary in order to compete in [Duplicate Bridge].

The Decision

The ECJ reached the opposite conclusion to AG Szpunar. It decided that Duplicate Bridge was not a sport for the purposes of the VAT Directive.

The ECJ began its decision by emphasising that it was not being asked to determine the meaning of “sport” in general, but to interpret that word in the context of the VAT Directive and its exemptions. Therefore, in the absence of any definition within the VAT Directive itself, it took the usual meaning in everyday language of “sport” as a starting point while giving due consideration to the context and purpose of the rules in question.

This approach to interpretation has been used consistently by the ECJ, such as in the notable case of Deckmyn and Vrijheidsfonds v Vandersteen [2014], where it was applied to determine the meaning of the term “parody” in the context of copyright.

According to the ECJ, “sport” in everyday language is used to refer to:

[A]n activity of a physical nature or, in other words, an activity characterised by a not negligible physical element.

The ECJ went on to observe that settled case law on the VAT Directive law – such as Temco Europe [2004] and Commission v Netherlands [2016] – states that the exemptions in Article 132 are to be interpreted ‘strictly’. Nonetheless, it observed that any construction should not deprive the terms included of their intended effects.

Therefore, it held that while the exemptions contained in the VAT Directive are intended to encourage certain activities in the public interest, they do not apply to every single activity that could be performed in the public interest – rather, as confirmed in Žamberk [2013], they only those which are listed and described in great detail. Yet this was exactly the problem at the heart of the case; the activities – the concept of a “sport” – were not described in great detail. As such, the ECJ saw it fit to adopt the ‘ordinary meaning of the term’, which does not cover ‘all activities that may, in one way or another, be associated with that concept’.

Lastly, the ECJ considered the purpose of the exemption; the promoting of participation in sport or physical education ‘by large sections of the population’. Despite admitting that Duplicate Bridge does promote both physical and mental health, the ECJ said that this was not, of itself, a ‘sufficient element for it to be concluded that that activity is covered by the concept of “sport”’. Instead, it referred to the game as an activity of ‘pure rest or relaxation’.

The ECJ also added that – where the physical element of an activity was negligible – a competitive element to it was not enough to encourage the classification of an activity as a “sport”.

Analysis

The decision in English Bridge Union v HRMC Commissioners [2017] is undoubtedly principled insofar as it follows ECJ jurisprudence on the interpretative approach. However, it must be considered limited due to the way in which it immediately adopts a definition based upon everyday parlance. Though this is contextualised by the need to consider the purposes of the VAT Directive, it remains very short-sighted.

Indeed, this article laments the ECJ’s decision: it failed to consider other ways of classifying activities, relevant facts of history and the current status of Bridge on the sporting stage, and also appeared to fall short on its analysis of the VAT Directive’s objectives. In short, it wrongly dealt the EBU a tough hand.

Definition Problems

The Definition in the European Sports Charter

As the VAT Directive is an instrument of EU law, it could be argued the appropriate definition the ECJ should have applied is that contained within the European Sports Charter, where Article 2(1)(a) defines “sport” as:

[A]ll forms of physical activity which, through casual or organised participation, aim at expressing or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels.

This definition – which demands some element of physical activity – might arguably exclude Bridge. Nonetheless, as Keir Baker has observed for Keep Calm Talk Law, Directives are not ‘hard law’: they are often drafted in general terms that allows for each of the 27 Member States to interpret them appropriately.

Indeed, AG Szpunar stressed the need for the ECJ to embrace the cultural component inherent in the definition of “sport” contained within Article 132(1)(m) of the VAT Directive, arguing that:

[S]ight should not be lost of the fact that many sports are regional in nature and not present throughout the EU. This is, for instance, the case with hurling in Ireland or with kumoterki in Poland. Also, some sports are more prevalent in some countries or regions than others. More British or French citizens participate in, say, rugby than Polish citizens.

In a similar vein, it appears to me that contract bridge boasts a higher degree of participation in the United Kingdom, Ireland and the northern countries of the European Union than elsewhere. Regional perceptions should, therefore, enter into account when the term ‘sport’ is determined in an autonomous manner on an EU level.

On this view, the ECJ should – in the interests of consistency, which is a fundamental Rule of Law principle – have had regard for the way in which “sport” has been defined elsewhere in UK legislation, such as under the Charities Act 2011 as discussed below. This does, however, go against the decision in Deckmyn and Vrijheidsfonds v Vandersteen [2014], where the ECJ pointed out that:

The Court has consistently held that it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question.

As a strict matter of EU law, therefore, the decision in English Bridge Union v HRMC Commissioners [2017] is probably correct. However, the ECJ made no reference to the Charter, adopting only the “everyday meaning”. Though this idea may be established in case-law, the judgment would have been much more convincing had it referred to the EU instrument which provides a definition. After all, a legislature should be specific when referencing terms.

Is Sport Always Physical?

It could be argued that if the EU legislature only intended the VAT exemption to be for physical activities, it would have said so. Arguably, “sport” means something much more than just “physical activity”. The latter merely refers to muscle usage, corporal actions and, for most mortals, an increased heart-rate. “Sport”, on the other hand, incorporates a competitive element, gamesmanship, tactics, training, performance, enjoyment, public interest and a mental element. Indeed, “sport” does not refer simply to just moving around; sports are multi-faceted activities with cultural and financial importance.

Considered thus, physical activity is not a prerequisite of “sport”. This was a conclusion that was also reached by AG Szpunar, who argued that:

[A]n activity does not necessarily need to have a physical element in order for it to be accepted as a sport. This appears to me to be only logical. A mandatory physical element would ipso facto exclude a number of activities which are generally regarded as a sport, even though the physical element is more than marginal and the classification of which as a sport is beyond doubt. Shooting or archery would spring to mind here.

A Case in Point: E-Sports

This argument is strengthened when activities like Bridge are compared to ‘eSports’. ESports (electronic sports) are, ultimately, computer games. Players, often in arenas or stadiums, compete in games such as League of Legends, Dota 2 and World of Warcraft as fans watch on big screens. They are also broadcast online (and recently on BBC 3) with commentators, to a global audience that is estimated to reach over 226 million.

Despite being a relatively new phenomenon, eSports have grown rapidly, and teams have emerged across the world. Football giants Manchester City and Paris Saint-Germain have established their own eSports franchises while it has been officially recognised as a sport in The Philippines and South Korea. The US government has also recognised professional eSports players as athletes for visa purposes. It was a medal-winning event in the 2015 Winter X Games, and is set to be so in the Asian Games in 2022. Indeed, pressure is growing for them to be included in the 2024 Paris Olympics. And while the IOC are yet to recognise eSports, they have suggested that they would be more likely to do so if there was a worldwide governing body.

Bridge has already made this step. It must therefore be asked; if eSports are on the verge of being considered sports, what more has Bridge to do? Though it can be argued that the level of motor skills demanded by Bridge is lower than for eSports – one study has suggested that eSports athletes can achieve up to 400 keyboard/mouse movements per minute (four times that of an average person) – the strategy and training aspects are much the same, and Bridge goes further by being governed at a global level.

On the Money: The Advocate-General’s Opinion

Compared to the ECJ’s decision, AG Szpunar’s Opinion provided a much fuller analysis of the question and made a cogent case that Duplicate Bridge should be considered a “sport” under the VAT Directive.

For example, AG Szpunar gave welcome consideration to some important aspects of history: though dictionary definitions place a physical element as central to the concept of a sport, this has not always been so. For example when the term was first introduced into the English language in the 14th century, “sport” meant “leisure”. Furthermore, it was possible to secure an Olympic medal for activities such as architecture and town planning. It is only in more recent times that this “everyday meaning”, which the ECJ adopted, has come about; a meaning which, as AG Szpunar recognised, is by no means universal.

Indeed, this lack of uniformity is in fact evident from the provisions of the Charities Act 2011, which define sport broadly as “sports or games which promote health by involving physical or mental skill or exertion”. Crucially, when applying this definition in Hitchin Bridge Club [2011], the Charity Commission – relying on research evidence of the potential health benefits of playing Bridge – held that Bridge was:

[A] game involving high level mental skill and exertion of the type which Parliament would have contemplated as falling within ‘the advancements of amateur sport’.

A Case for Bridge as a Sport

Global Sporting Recognition

Bridge – alongside Chess – is recognised by the International Olympic Committee (IOC) as a sport. Though not every IOC-recognised sport features in the modern Olympic Games, the Olympics are still regarded as the pinnacle of the sporting world: the very fact of recognition should go a long way to determining how the game is categorised. Indeed, the SportAccord International Federations’ Union (the union for all Olympic and non-Olympic sports federations worldwide) expressly includes ‘mental sports’ in its definition of “sport”, so long as there is no element of luck expressly involved.

Further evidence of Bridge being a sport is that the World Bridge Federation subscribes to the World Anti-Doping Code; a code designed to crack down on the use of performance-enhancing substances in sport with the aim of promoting “fair play”. Among the signatories to this code are:

  • Bridge
  • Chess
  • Draughts
  • Darts
  • ‘Go’ (a strategy board game)
  • Mini-Golf
  • E-Sports
  • Poker

Although this cannot be used to exhaustively delimit the term “sport” that is included in Article 132(1)(m) of the VAT Directive, it still seems odd that non-sports would sign up to a code regulating substance use in sports.

The Benefits of Bridge

As the VAT Directive states, the purpose of VAT exemptions is to encourage certain activities “in the public interest”, by making them cheaper to participate in. It is trite to say that government wants to encourage physical activity to discourage a sedentary lifestyle and make the population healthier.

Yet, invariably, there are those for whom traditional sports are not accessible, whether that be due to genetics, disabilities, or age. Bridge may provide an alternative. Indeed, it is traditionally played by members of the older generation, who may not be able to participate in traditional sports so easily. Thus, it seems that limiting the definition of “sport” to just physical activities may risk excluding a group of individuals.

Moreover, there are significant similarities between Bridge and ‘traditional sports’. Bridge players, as much as rugby players or sprinters, must train and practise, learn tactics and strategies, develop mental strength and use teamwork. All sports players must be ready to respond to the moves of the opposition as they compete.

Indeed, a study by Professor Marian Diamond of Berkeley University showed that playing Bridge can have a positive impact upon physical health by boosting the immune system. The inevitable social aspect and mental exercise element would also suggest a benefit for mental health. Furthermore, given the widely acknowledged fact that a healthier body means a healthier mind, Bridge players who are serious about improving will likely exercise physically too, even if this is not their individual strength. Therefore, Bridge can contribute to the aim of making the population healthier.

Conclusion

The ECJ’s decision in English Bridge Union v HRMC Commissioners [2017] may have been correct on a strict application of EU jurisprudence but, as a piece of legal analysis, it is lacking. For one thing, its failure to consider a number of crucial factors – and, indeed, the definition stated in the European Sports Charter – give rise to a feeling of incompleteness. It is for these reasons that the Opinion of the AG Szpunar is more convincing.

Certainly, in light of the international recognition of Bridge as a sport, the research that shows the benefits that Bridge can bring to participants and its application of the WADA Code, it seems clear that the Upper Tribunal should at least pause for thought before applying the ECJ’s judgment to its decision. For this writer, at least, Bridge is a sport.

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Tagged: European Union, Sport Law, Tax Law

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