The future of Irish sporting stadia must be a shared one

At Sunday’s NHL game between Limerick and Cork in the Gaelic Grounds, a TV camera was perched at the Ennis Road end. Every time that angle was used, you could clearly see the stands of Thomond Park less than a mile away in the distance.

To an outsider, having two major, adjacent stadia must seem such a waste of resources in a relatively small city.

Up until last weekend, the GAA’s approach to the use of its property was encapsulated in Rule 5.1 of its Official Guide: “All property…owned or controlled by units of the Association shall be used only for the purpose of or in connection with the playing of the games controlled by the Association…”

The Rule contained three exceptions to the ban on the use of GAA property for other sports.

Firstly, Central Council could open Croke Park for non-GAA games (Rule 42 and all that). Secondly, if Ireland’s bid for the Rugby World Cup for 2023 or 2027 had been successful, there was a provision to open Croke Park and other GAA stadia for that purpose. Third, the GAA’s Central Council had the power to sanction events on GAA property “for such other purposes not in conflict with the aims and objectives of the Association.”

It is that last exception that permitted the GAA’s Central Council to eventually open Páirc Uí Chaoimh for the Liam Miller charity testimonial last year.

At last weekend’s Congress, the GAA, and for reasons that need not be rehashed now, decided that the third exception needed clarification.

A motion was passed allowing Central Council to sanction “other uses” for GAA grounds (but only if it is a county ground). The motion also put a more formal procedure in place, requiring that an application must be made from the organisers of that sport at national level to Central Council, who will then consider the application against two criteria: is the event of “national significance” and is it in furtherance of GAA aims?

The motion, a very sensible one, rightly attracted the overwhelming support of delegates at the GAA’s Congress.

The effect of the motion can be summarised very simply — we, the GAA, will consider opening one of our county grounds to another sport if that other sport asks us nicely and it suits us.

The GAA is quite entitled to take this approach to its property.

One lingering question is that when in the future the GAA seeks state funding for the (re)development of one of its stadia, to what extent will that state funding be made conditional on that stadium being open on to all sports, irrespective of whether the event is one the GAA considers of “national significance” or “in furtherance of” its aims?

In other words, is it open to the government to say that it will not give the GAA money to redevelop its county grounds unless it ensures, without precondition, that once redeveloped, that stadium is open to other sports on reasonable request?

During the needlessly and insensitively fraught debate on the Liam Miller testimonial, senior government ministers hinted that if Páirc Uí Chaoimh was not made available, future funding of GAA grounds may be at issue. This was accompanied by dark mutterings about the GAA being in breach of EU state aid law.

The GAA, led by its Director General, Tom Ryan, subsequently reacted forcefully to these ministerial mutterings.

The underlying thrust of the GAA’s reaction was that, while ministers now bleated over EU state aid rules and the provision of sporting facilities in Ireland, for most of its history, the GAA, without reward, aided the state in being the sole provider of meaningful sporting facilities in every parish in the land.

I saw the latter first hand on a recent visit home when on a cold Thursday night (cold by Melbourne standards; fresh in Limerick) I walked around the local floodlit GAA pitch, open to all in the parish, as part of the GAA’s link with RTÉ’s Operation Transformation programme.

The GAA’s link with the programme seeks “to bring together communities across the 32 counties to enjoy healthy walks in the safe, bright, environs of their GAA club” reminding the few critical government ministers nationally of the many societal and health benefits the GAA entails locally.

Nevertheless, when it comes to county, as opposed to club grounds, EU state aid law is of relevance. Indeed, the EU undertook a state aid investigation ofthe public funding of the redevelopment of Páirc Uí Chaoimh. For all the debate last year about opening up PUiC, and with the notable exception of leading sports law barrister Tim O’Connor, few at the time (nor since) seem to have read the EU’s Commission’s decision, published in July 2016.

State aid is where an entity receives government support (grants, tax reliefs etc) which gives it undue advantage over its competitors. EU state aid rules apply to sport as much as any other sector.

The most well-known example of a sporting deal that fell foul of EU state aid law occurred in 2016 involving a land transaction between the local municipality of Madrid and Real Madrid whereby a plot of land owned by Real and valued at €600,000 was bought by the municipal authority for a staggering €23million. The EU ordered Real to pay back more than €18 million.

And yet just because a member state of the EU favours a particular sport it does not necessarily mean there is a breach of EU state aid law. There may be legitimate commercial and cultural reasons for such state support.

In 2017, for example, the EU Commission investigated the way in which the British government (as Ireland does) transfers money from a levy on betting revenues to, in part, subsidise the horseracing industry. The arrangement was held not to be in breach of EU law. With the growth of online betting and punters gambling on sports other than racing, expect such government-led levies for racing’s exclusive benefit to be legally challenged again soon.

In Ireland, for instance, we have recently heard how the League of Ireland might like a share of such betting revenue.

Returning to Páirc Uí Chaoimh, the EU found that the €30m in state funding for redevelopment did not breach EU state aid law. The EU’s view of the GAA was cognisant of its amateur and community-focused ethos. Nevertheless, running through the EU Commission’s decision was an understanding that the Páirc Uí Chaoimh facilities would have a “multi-functional character” and would “not be used exclusively by a single professional user”.

The EU Commission’s decision then gave specific examples of potential other users of Páirc Uí Chaoimh of which there were three broad categories.

First, the EU noted that the Irish authorities had told it that Páirc Uí Chaoimh had previously been available (and would presumably continue to be so) for other sports events organised by third parties; examples included “schools’ athletic championships, boxing championships, dog shows, indoors sports such as table tennis, baseball etc”. If ever an “etc” needed to be expanded upon that was it.

Second, the EU noted that it had received assurances that Páirc Uí Chaoimh would be open to commercial use and including the renting out at reasonable market prices of its facilities to third parties to “organise sporting and other commercial events.” And third, Páirc Uí Chaoimh would be made available to local communities for sports, cultural, and educational activities.

Indeed, under the specific heading “Terms and conditions for the use of the PUiC stadium”, the EU noted with approval that: “According to the Irish authorities, the Páirc Uí Chaoimh facilities will be open to [the above] users on a non-discriminatory and transparent basis.”

While the costing estimates of the Páirc Uí Chaoimh development given to the EU in 2016 have since increased from €78.34m in 2016 to €95.8m in 2019, the legal commitments given to the EU on Páirc Uí Chaoimh’s use remain unchanged.

The EU has said that legally the future of large-scale sporting infrastructure in Ireland must be a shared one. And all of Irish sport, including the GAA, will be stronger for it.

Jack Anderson, Professor of Sports Law, University of Melbourne.

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