Key Points Sports Governing Bodies (SGB) have attempted to maintain autonomy over the governance of sports-related disputes by arguing that the specificity of sport is insulated from the full application of the economic rules of EU law. Increasingly athletes and sports teams have brought cases before NCA and national courts as previous European Commissioners have been reluctant to intervene in sports-related cases. The decision of the European Commission on 8 December 2017, finding the rules of the International Skating Union to be in breach of Article 101 TFEU has sent out a message that all SGB should now examine their internal rules and calculate whether the effects of such rules may infringe the EU competition rules. The ISU decision reveals the governance and constitutional role of EU competition law that can be used, not only towards intervening in the structure of competitive markets, but also the exercise of fundamental procedural and substantive rights of individual players in the market. The application of EU competition law to the rules of international SGB reveals the external reach of the normative power of EU law. ‘It’s every man for himself and the devil take the hindmost.’1 This Survey of the growing interest in applying the EU competition rules to sport is set in the context of the decision of the European Commission on 8 December 20172 in relation to the complaint brought against the rules of the International Skating Union (ISU). The Survey examines the ISU decision in Parts I–III. The significance of the ISU decision is analysed in Part IV. The ISU decision suggests that the European Commission is willing to take a tough stance against practices of Sports Governing Bodies (SGB) that are not wholly related to the governance of the sport and may have implications for the development of competition in sports markets. The use of competition law in this way brings a new set of issues to the academic discussion of the role and purpose of competition law. On the one hand competition law is being used in the earlier role as a tool to enhance freedom to contract. But also in the modern era it is also a valuable constitutional tool for protecting fundamental rights and due process. Part V examines the rise in sport-related complaints to national regulatory bodies and courts and Part VI examines the escalation of complaints to the European Commission. Part VII questions the implications of using competition rules to challenge the governance of sport, pointing out that there may be negative effects for the sports market if competition is used to undermine the fundamental governance structures of SGB and consumer welfare interests may not be met if there is too much competition in sports markets. The Survey argues that the ISU decision is yet another fearless and tactical investigation led by Commissioner Margrethe Vestager to probe the depths and reach of EU competition law. At a time when debate is taking place concerning the role of competition law as a policy tool, the ISU decision serves as a reminder that EU competition law has a function as a governance and a constitutional tool to regulate public and private power in the market and enhance the economic freedom of individual actors. Sports cases involving the rights of individuals to exploit their potential using the economic rules of the EU are contentious. Sports cases are usually presented as opening up for greater commercial exploitation the competitive structure of sports markets, relying on notions of consumer welfare to promote greater choice for competitors and consumers. In presenting the cases using competition law, individual complainants seek to exploit the underlying norms of the market freedoms underpinning the EU to enhance freedom of contract, as well as the exercise of public power.3 Certain norms underpinning the EU have been identified by Parker and Rosamond as established universal norms: liberty (freedom from government); human rights (non-discrimination, equality); democracy and the rule of law (protecting competition, procedural rights).4 These norms are now providing the basis for competition law decisions involving sport. I. The complaint against the ISU The ISU is the sole body recognised by the International Olympic Committee (IOC) to administer the sports of figure skating and speed skating through national ice-skating associations. In December 2011, Icederby International, a Korean private company, informed the ISU of its intention to organise international speed skating events in new formats which would combine long track and short track skating. Icederby International was also contemplating including betting activities on the races alongside the ice tracks. In response, in January 2012, the ISU issued a revised Code of Ethics stipulating that persons subjected to the Code ought ‘to refrain from participating in all forms of betting or support betting or gambling related to any event/activity under the jurisdiction of the ISU’. Nevertheless, Icederby International secured a contract to organise an annual speed skating event in Dubai as part of the programme leading up to the World Expo 2020. Icederby International stated that there would not be on-site betting activities during the events only because betting activities are strictly prohibited in Dubai. The ISU responded by issuing a Communication No. 1853, stating that, because the competitions organised by Icederby International are ‘possibly being closely connected to betting’, they would not recognise the events. The ISU stated that participating in events organised by Icederby International would render skaters persona non grata within the ISU, leading to a severe penalty of a life-time ban where a skater participated in a non-sanctioned event.5 A complaint was received by the European Commission from two Dutch professional speed skaters, Mark Tuitert, an Olympic champion, and Niels Kerstholt, a world champion, challenging the life-time ban placed by the ISU on skaters who participated in non-sanctioned events.6 They argued that they were thereby prevented from participating in the lucrative Icederby events.7 The European Commission opened proceedings in relation to the ISU’s eligibility rules on 5 October 20158 following a complaint by these two Dutch professional speed skaters. The European Commission sent a Statement of Objections9 to the ISU on 27 September 2016. II. The European Commission decision The European Commission’s investigation found that the ISU rules imposed severe penalties, at its own discretion, even where the non-ISU approved competitions posed no risk to legitimate sports objectives, such as the protection of the integrity and proper conduct of sport, or the health and safety of athletes. By imposing such restrictions, the ISU eligibility rules restricted competition and enabled the ISU to pursue its own commercial interests to the detriment of athletes and organisers of competing events. The European Commission found that the ISU eligibility rules restrict the commercial freedom of athletes who are prevented from participating in non-ISU events. Thus, as a result of the ISU eligibility rules, skaters are not allowed to offer their services to organisers of competing skating events and may be deprived of additional sources of income during their relatively short speed skating careers. The European Commission also found that the ISU eligibility rules prevent independent organisers from establishing their own speed skating competitions because they are unable to attract top athletes. This has limited the development of alternative and innovative speed skating competitions, and deprived ice-skating fans from following other events. Accepting that the ISU introduced changes to its eligibility rules in June 2016, the European Commission found that the system of penalties still remained disproportionately punitive and prevented the emergence of independent international speed skating competitions. This was a breach of Article 101 TFEU. This is an important departure from the tendency in the past to treat the SGB as dominant bodies and to challenge the rules and behaviour as an abuse of a dominant position under Article 102 TFEU. Article 101 TFEU suggests that the SGB may be seen as an association of undertakings. A speech by the Director General for Competition, Johannes Laitenberger revealed the European Commission thinking on the behaviour of the ISU: In the Commission’s view, this behaviour is anticompetitive by its nature. So it is a so-called ‘restriction by object’. In the presence of a ‘restriction by object’, a deeper analysis of effects is not necessary. But even if a behaviour restricts competition, the firm under investigation can still show countervailing efficiencies. One can say that under Article 101 TFEU, if a restriction of competition is established by the enforcing authority, the absence of a justification by efficiencies is presumed. But this can be rebutted by the business investigated. In other words, in such a situation, the presumption and the possible rebuttal are set at the level of harm versus efficiencies. In the ISU case, no countervailing efficiencies were shown by the ISU.10 III. Enforcement and penalties The European Commission decision takes a cease and desist approach, requiring the ISU to stop its illegal conduct within 90 days and to refrain from any measure that has the same or an equivalent object or effect. In order to comply, the ISU can abolish or modify its eligibility rules so that they are based only on legitimate objectives (i.e. explicitly excluding the ISU’s own economic interests) and that they are inherent and proportionate in order to achieve those objectives. Mindful of the rise in complaints by athletes denied a chance to compete in wider sports markets the European Commission stated that the ISU should not impose, or threaten to impose, unjustified penalties on athletes who participate in competitions that pose no risk to legitimate sports objectives. If the ISU chooses to maintain its rules for the authorisation of third-party events, it must deploy objective, transparent and non-discriminatory criteria and not intend simply to exclude competing independent event organisers. Perhaps as a nod to the use of the competition rules to impose good governance structures the European Commission did not consider it necessary or appropriate to impose a fine, but non-compliance with the decision would incur payments of up to 5 per cent of the ISU average daily worldwide turnover. The decision attracted much lobbying from the IOC with warnings that the interpretation of the EU rules could detract from the ‘the important social role of sport by equating it with commercial sports business’.11 When the decision was announced at a Press Conference held on 8 December 2017 the IOC President, Thomas Bach, claimed the decision was limited to the ISU Federation but Commissioner Vestager made the point at the press conference that all sports federations should look closely at their internal rules in the light of the decision. IV. The significance of the ISU decision The decision in ISU comes at a time when there is an increase in complaints to the European Commission, alongside invitations to national competition authorities and courts, to flex their muscles and explore the application of competition law to the behaviour, or rules, of Sports Governing Bodies (SBG). In so doing, competition law is deployed as a constitutional and governance tool. Firstly, as a tool to make accountable, and to curb, the exercise of private power which has economic trans-national effects. Secondly, as a tool to secure fundamental economic and procedural rights for individuals. This deployment of competition law may lead to more events and participants in sports markets and indeed, to create new markets for sport, for example, gambling, a mix of amateur and professional events, and new events such as those envisaged in the IceDerby programmes. However, such developments may not always be viable and may diminish consumer interest in sporting events. The effect upon individual athletes may be positive, allowing them to exploit their skills, but may also result in their own exploitation by tying them to too many commercial contracts. The ISU decision is an important development for the maturity of the European Commission as a regulator. Sport was viewed as one of the ‘special’ cases in EU law. Pre-1995, the date of the Bosman ruling, there was little interest in using the EU’s economic rules to challenge anticompetitive behaviour in sport. The principle of the sporting exception in EU law, developed from the ruling in Walrave and Koch in 1974,12 deterred challenges to the rules of SGB. A wide interpretation of the case appeared to grant an immunity for any action or activity consisting of a purely sporting character, even if the effect, or consequences, of the application of SGB rules restrained the economic freedom of athletes. The mandatory use of arbitration to appeal decisions of the SGB13 and the fact that most of the central organisational activities of SGB were situated outside of the EU, usually in Switzerland, made it difficult for any kind of private challenge or enforcement of EU law in EU national courts. Bosman questioned the nature of sport as a special activity, leading to an increase in legal activity concerning sports-related disputes.14 Pre-Bosman the European Commission had adopted only four formal sport-related decisions under Article 101 TFEU. The cases were economic in nature, related to revenue-generating activities. Post-Bosman, between 1996 and 1999, there was an exponential increase in notifications and complaints to the European Commission, obliging it to open 60 sports-related competition complaints.15 The extra-territorial effect of EU competition law offered the opportunity to erode the immunity from litigation that had previously protected SGB. But, the mind set of the European Commission was rigid: sport was a special case, with the European Commission often pleading that there was no Community interest in pursuing sports cases relating to competition. The secrecy and lack of transparency of the decision-making process made it difficult to discern the logic of the European Commission’s thinking as the economic and commercial transformation of sport raised new opportunities for athletes to engage in commercial activity. In the field of broadcasting, merchandising and sponsorship, the susceptibility of sport to the application of EU competition law, was not questioned. The difficult legal situation arose when individuals began to be viewed as commercial commodities, exploiting their sporting skills in new commercial events, or found themselves to be restricted from competing in existing official events by regulatory rules and decisions.16 It was not until the Meca-Medina case in 2006 that the European Courts considered the application of competition law to sport.17 While the CJEU recognised the economic implications of the rules of SGB, stating that they could be brought within the scope of the EU competition rules, it also recognised a broader basis for the justification to keep sport special when applying the economic rules of EU law. The Court recognised the autonomy of SGB to choose independent forms of arbitration to settle disputes, restricting the possibilities of challenges using EU law through the conventional channels of the European Commission and appeals to the European Courts. The Meca-Medina judgment did not follow the usual route of analysing if a restriction on competition could benefit from an exemption under Article 101(3) TFEU but instead adopted the Wouters approach of balancing the pro-and anticompetitive implications of a restriction of competition, allowing for measures to be justified against a standard of necessity and proportionality. Having lost the argument that sport was immune from the reach of EU law the SGB adopted a different tack, which was translated into EU policy largely through soft law policy documents, as the ‘specificity of sport’.18 This concept refers to the inherent characteristics of sport which set it apart from other economic and social activities and was recognised in Article 165 TEU. The special nature of sport is now challenged, driven by greater commercialisation and intensification of competing sporting activities, allowing new sports markets to emerge. There are two demand drivers to this. First, the increased professionalism of sport, alongside advances in research technology and in physiology and nutrition, has raised the bar in sporting performance. Second, athletes may have shorter timeframes, and with greater and more intensive competition, in which to realise their peak performance. This may create a demand from athletes to have more opportunities to compete in top class events. A correlation of this is the increased demand from a global audience to watch live and multi-media platform performances of athletes. Sport as a spectator activity is not confined to enjoying the prowess of sporting skills but embraces enjoyment of gambling and comment upon sports wear and accessories. As a result a greater number of sports disputes are being brought before national courts and national competition authorities, using the EU economic law provisions to challenge restrictions on sport-related activity. The CJEU ruling in MOTOE19 confirmed that a SGB that mixes regulatory functions with economic activities should be subject to the application of EU competition law. The case was based upon Article 106 TFEU in conjunction with Article 102 TFEU, allowing the CJEU to find that organisations that regulate sporting events and have a direct commercial interest in the events (for example entering into sponsorship, advertising and insurance contracts) can hold exclusive rights. It was not necessary that a sporting federation actually exercised its powers to favour its own events; the case law on Article 106(1) TFEU led to a presumption that such favouritism was a likely inevitable consequence of this role. The CJEU clarified the obligations of SGB: the procedures and criteria for selection used by SGB should be transparent when responding to other organisations that are applying to organise events. The fact that the SGB in this case (the Greek Automobile and Touring Association) was operating a virtual monopoly in organising motorcycle events was not, per se, a breach of Article 102 TFEU; rather, the fact that there was no legal recourse for appeal or review for undertakings which were refused consent could be an abuse of the SGB’s dominant position. It is surprising that Article 102 TFEU has not be used more frequently to challenge a SGB. The use of Article 9 of Regulation 1/2003 to enter into a dialogue with the European Commission and to offer commitments to alter anticompetitive rules would be a diplomatic solution to complaints. Together with the Meca-Medina ruling, the MOTOE judgment destroyed the notion that ‘purely sporting rules’ have an automatic exemption from the scope of EU competition law. However, some ambiguity in the relationship between sport and competition was left open. The judgment confirms that the specific features of sport should be considered in assessing the compatibility of organisational sporting rules with EU competition law. V. The rise in complaints to National Competition Authorities and national courts A new forum for sport and competition law complaints is emerging as certain sports are the focus of National Competition Authority (NCA) investigations.20 The motor racing industry has been the subject of investigation in Italy and Sweden.21 The Italian NCA started a competition investigation in 2008 into the regulations and conduct of the national motor sports federation (ACI) under Articles 101 and 102 TFEU. The investigation focused on regulatory and statutory provisions intended to limit access to the market for the organisation of motor sport events for competitors. In 2009, the NCA adopted a commitment decision after the ACI undertook, inter alia, to allow its members to participate in events not organised by the federation. In 2011 the Swedish NCA found a breach of national law against the Swedish Automobile Sports Federation, ordering it to amend its rules preventing its members from participating in unauthorised events.22 The offending rules concerned the excessive sanctions of a fine and/or withdrawal of the licence allowing participation in SBF events. This decision was upheld by the Swedish Market Court.23 This Court also applied Article 101 TFEU. The Court held that the mere existence of the Automobile Association rules distorted competition to a significant degree because an absolute ban on participating in external events would affect trade within and among Member States. The Court held that an absolute ban on an external activity could not satisfy the proportionality test imposed by EU law in the Meca-Medina judgment. Interestingly the Swedish Court also considered if the rules of the Automobile Association could benefit from an Article 101(3) TFEU (and the equivalent national law) exemption but found that these conditions were not satisfied. The Automobile Association was obliged to amend its rules and drop the sanctions. The case illustrates a willingness of a NCA and a national court to treat sports activity as on a par with ordinary commercial activity. Following this precedent another challenge, to a different sport, was made before the Swedish NCA in October 2013 by BMR Sport Nutrition AB against the rules of the SKKF, the Swedish Bodybuilding and Fitness Federation. The SKKF enjoyed a monopoly position as the only national member of the International Bodybuilding Federation (IFBB). Athletes and officials had to be a member of the SKKF in order to participate in IFBB international competitions. The SKKF incorporated the IFBB rules into the Swedish national Statutes. One rule, which was the matter under challenge, was a loyalty clause which imposed a fine or suspension on athletes who competed and participated in contests not approved by the SKFF or the IFBB. An additional deterrent from participating in outside events was the rule that athletes who participated in an external event had to undergo a doping test at their own expense before they could be admitted to SKKF and IFBB events in the future. BMR Sport Nutrition was a manufacturer of bodybuilding supplements and other foodstuffs and it had started to organise bodybuilding and other fitness events in Sweden outside of the SKKF. Its complaint was based upon Article 101 TFEU,24 arguing that the SKKF rules prevented organisers of competing events from being able to enter the market and compete with the SKKF. Furthermore, the sanctions of the SKKF were so stringent that athletes were deterred from contemplating alternative events. The Swedish NCA closed the case in 2014 when the SKKF agreed to amend its practice and no longer fine or suspend athletes participating in external events.25 Equestrian sport is another example where the national competition authority has been the forum for a complaint. An investigation by the Belgian NCA was upheld by the Brussels Court of Appeal in 2016. In June 2015, Global Champions League (GCL) complained to the BCA that the Federation Equestre Internationale (FEI) abused its regulatory powers as the SGB to protect FEI-promoted commercial events against competition from independent organisers.26 This was implemented by a new exclusivity clause, suspending riders, horses and officials from participating in FEI-promoted events if they participated in events not approved by the FEI. The FEI refused to approve the GCL events and GCL requested the Belgian NCA to suspend the exclusivity clause. In July 2015, the BCA agreed with GCL that a preliminary assessment confirmed that the FEI exclusivity clause breaches competition law and granted interim relief to GCL, thus allowing the GCL to launch events in 2016 with riders and horses under the protection of interim measures. In August of 2015, the FEI appealed the decision of the BCA, asking for the suspension of the interim measures and for their annulment. The Court of Appeal Court rejected the FEI’s request for the suspension of the interim measures and upheld the BCA decision giving riders and horses the freedom to choose to compete in the GCL. The Court held that the FEI had failed to demonstrate that the interim measures inflicted serious and irreparable harm on the federation. The FEI had managed for more than a century without the clause and failed to show why it was indispensable. The Court held that any undermining of the credibility of the FEI as the sport’s governing body as a consequence of the Belgian NCA decision was not a challenge to its autonomy to govern the sport, but rather it was a risk to which the FEI has exposed itself by engaging in the marketing of equestrian competitions. The Court rejected the FEI’s request for the annulment of the interim measures, finding that the FEI exclusivity clause was in breach of competition law in respect of the GCL. The challenge to the FEI was similar to events in Ireland where the NCA also opened an investigation into a rule of Show Jumping Ireland (SJI) that prevented members of the SJI to compete at unaffiliated show-jumping events. The case was closed after the SJI agreed to amend the rule.27 The new rule allows SJI to penalise its members where they participate in events not covered by the specified Health and Safety Standards and where the SJI has not been provided with evidence that the event is covered by adequate insurance. In October 2015, the Spanish National Commission of Markets and Competition opened an investigation into the financial conditions set by the Spanish Basketball Clubs Association (Law Asociation de Clubes de Baloncesto ACB) for clubs being promoted to the ACB’s national league. The Spanish NCA investigated whether the conditions were discriminatory and against fair sporting competition. The investigation was initiated following the complaint by the Club Baloncesto Tizona, relating to conditions requiring payment of 3.2 million euros within three months of joining the ACB, and 1.8 million euros in a fund for promotion and relegation purposes, as well as a 270,000 euros contribution to a wage guarantee fund. The regulation of football agents and other intermediaries has been subjected to assessment against EU competition and free movement law. In 1998 a French football agent, Piau brought a complaint to the European Commission alleging that the rules of FIFA governing football agents were discriminatory and contrary to Article 101 TFEU. Following negotiations with FIFA, the rules were amended, and the European Commission closed the case. Piau appealed against the European Commission decision to the CFI (now the General Court). The Court acknowledged the regulatory power of private sporting bodies and the restrictive effect their rules could have on economic freedoms. The CFI held that regulations adopted by a private organisation were subject to EU competition law but the Court did not find the FIFA regulations were incompatible with EU competition law and that Article 101(3) TFEU could be used to exempt any anticompetitive effects. The CFI also supported the European Commission in finding that Article 102 TFEU could also apply to FIFA, but concluded that because there was the possibility of an exemption under Article 101(3) TFEU an abuse of a dominant position had not been established.28 In April 2015, FIFA adopted a new set of regulations governing the role of agents and Intermediaries and these were implemented by the German Football Association in the form of the Reglement für Spielervermittlung (DFB). The Landgericht Frankfurt am Main found that parts of the regulations infringed Article 101 TFEU and issued an injunction. On appeal the Oberlandesgericht Frankfurt am Main found that the parts of the regulations subjecting agents and intermediaries to be subject to the jurisdiction of the DFB, UEFA, and FIFA and the rule imposing a duty to provide an extended certificate of good conduct usually reserved for professions involving a risk to the integrity of minors were not proportionate to attain the stated objectives. It was therefore contrary to Article 101 TFEU.29 Finally, in Belgium the White Star Woluwe Football Club had been refused a licence to compete in the premier division by the Licences Commission of the Union Royale Belge des Sociétés de Foootball Association. This decision was upheld by the Cour Belge d’Arbitrage pour le Sport. The Belgian Competition Authority accepted that it could review an arbitral award against EU competition law, but refused to grant provisional measures.30 VI. Escalation of complaints to the European Commission The ISU decision is part of an escalation of competition law complaints to the European Commission covering different sports.31 A complaint was made by two Formula 1 teams, Force India and Sauber, making an allegation that the organising body, Formula One Group, which organises the motor racing events, is committing an infringement of Article 102 TFEU relating to funding and governance issues by favouring the position of the five largest motor racing teams32 and thereby discriminating against smaller racing teams. Another complaint concerns an allegation from the soccer players’ union, FIFPro, that FIFA’s transfer rules are anticompetitive and prevent football clubs from competing against each other to buy the best players. This is an attempt to argue that rules previously negotiated as compatible with EU law no longer achieve the aims of guaranteeing their intended purpose of guaranteeing the stability of contracts, the competitive balance between football clubs and a fair distribution of revenue. Indeed, it is argued that the rules have skewed the economic balance between football clubs, with the clubs with significant financial backing, dominating the transfer market.33 The difficulty of involving NCA and national courts in disputes related to rules underpinned by an international SGB is that a claimant may find that he/she falls between various jurisdictions and competences, with each forum reluctant to take on the competition law matter.34 One example is the challenge brought before the Brussels Court of First Instance by Daniele Striani, a football agent licensed by the Belgian Football Association, complaining that UEFA’s ‘break even’ rule distorts competition between clubs by imposing a limit on the level of investment in players. He argued that this rule this negatively affects the salaries and mobility of players because clubs spend less money on transfers. Under the ‘break even’ requirement, the relevant income of clubs has to at least match their relevant expenses, subject to permitted deviations. The CJEU rejected the request from the Belgian Court of First Instance for a preliminary ruling under Article 269 TFEU. The order from the CJEU states that the Belgian court’s request did not meet the necessary requirements of admissibility; it was insufficiently clear and precise to enable the CJEU to rule on a point of EU law and did not show that the answers to the questions were necessary for the solution of a dispute to be settled in the main proceedings.35 In February 2016, Euroleague Properties, a subsidiary company of Euroleague filed a complaint against the International Basketball Federation (FIBA) and FIBA Europe to the European Commission, stating that FIBA had put clubs under pressure to join its Basketball Champions League. In response FIBA submitted a complaint to the European Commission against Euroleague, on a similar basis, that Euroleague engaged in anticompetitive behaviour in order to gain a competitive advantage. Euroleague filed a complaint to the European Commission against FIBA, alleging that FIBA had infringed the competition rules by making illegal threats and applying unfair pressure on clubs, players and referees, in order to coerce them into participating in FIBA competitions. The allegation is that FIBA are infringing EU law because of a conflict of interest. FIBA responded to the allegation by filing a complaint to the European Commission against a subsidiary of Euroleague Commercial Assets (ECA) for breaching similar competition rules, including putting pressure on clubs, players and referees to take part in a Euroleague competition or face expulsion from their other events, as well as unfair discrimination against certain clubs. FIBA argues that the ECA, by denying them the ability to contribute to the growth of the European club business, creates an unfair monopolistic position which is an abuse of a dominant position under Article 102 TFEU. VII. Competition in sport: a good idea? The use of competition law to regulate sport creates ambiguities. At a practical level there are countervailing pulls against the introduction of competition law principles into a sports market. These countervailing pulls may be for public policy reasons, or social reasons, and even economic (commercial) reasons. It is a fine balance to decide what kind of restrictions imposed by SGB and individual business organisations (such as football clubs) are credible sporting concerns, and of a public policy nature, and what restrictions may be holding back the development of competitive markets in sport. There may be good public policy, ethical, as well as commercial reasons, why a SGB, or a private body may justify imposing restrictions on competition emerging. For social and public reasons an athlete may need protection [both physical and mental] from too many opportunities to display her talents. But, on the other hand, curbing her ability to exploit her skills, especially in a sport with a very short period of time when an athlete is in peak performance (for example, female swimming competition) could restrict her capacity to exploit her capabilities and popularity. Sports bodies, national and international, also have an interest in the over-exploitation of athletes, wanting the leading athletes to compete in top form at the international and regional major events.36 This again is not solely born out of altruism: seats have to be sold, especially where a major event such as the Olympic Games has involved investment in new stadia and other facilities, as well as the commercial spin offs: broadcasting rights, memorabilia. But quite clearly the nostalgia may be waning: there are some sports, for example professional golf, or road race cycling, or tennis, where an Olympic medal may not be the realisation of the sporting dream. The use of competition law, especially the rise in Article 101 TFEU complaints, by individual athletes is a reminder of the earlier dichotomy of whether the purpose of competition law was its role of protecting competition or freedom of contract. But the outcome of the use of competition law has been to focus not so much upon the economic effects of SGB which restrict competition, both for individual athletes as well as potential competing suppliers of events, but upon the exercise of power by SGB. Through the use of competition law, and the sanctions attached to a breach of competition law, the EU is able to exercise a degree of regulation of its own, and international, sports’ markets. It is sometimes argued that the EU lacks a coherent response to sport, weighed down by individual Member State interests and the lack of a legal base to regulate sport. But arguably, the coherence of the response from the EU is seen clearly by revisiting Meca-Medina and Motoe through the lens of the ISU decision. While lacking a clear regulatory power over sport the approach taken by the European Commission and the CJEU, of allowing a balance between the scrutiny of sporting rules and the proportionality of their justification, leaves just enough scope to recognise the competence of SBG to develop legitimate governance rules, with EU economic principles providing leverage for the exercise of fundamental rights. Indeed, Grix and Houlihan have argued that the use of the EU economic rules in sports-related cases EU provides a normative element to governance issues, which may be lacking at the national level.37 The new propensity to challenge SBG actions using EU competition law may also bring further practical issues for the EU. The SGB may require a greater use of insurance principles, either through indemnity insurance or underwriting from government and super national regulatory authorities if they are confronted with complaints based upon loss of earnings opportunities.38 It is notable that in the Press Release39 announcing the ISU decision the European Commission reminds its readers of the availability of private damages claims, which would be determined at the national level, as well as the protection afforded to whistle blowers. But the European Commission may lack the expertise and resources to handle a surge of new complaints.40 At the Press Conference announcing the ISU decision on 8 December 2017 Commissioner Vestager argued that national courts and antitrust authorities were generally better placed to deal with competition issues.41 As NCA take on the complaints, the main challenge is to ensure consistency from the outcomes of decisions by the Court of Arbitration and the complaints raised at the national level. Where several national complaints emerge relating to similar national SGB rules implementing underlying international SGB regulatory rules there is a Community interest for the European Commission to intervene of its own volition to ensure consistency in rules across the EU. EU competition processes provide some pathways for a dialogue, through Article 15 of Regulation 1/200342 and the NCA could take advantage of the European Competition Network to provide a vehicle for exchanging information and best practice. VIII. Conclusion Practical issues cannot detract from the fact that the decision in the ISU complaint has expanded the power of EU competition law to act as a governance tool, and as a constitutional tool, in the ethical interests of its own large sports market with consequences in the international markets for sport. In doing so the EU has drawn together elements of the duties associated with the exercise of public and commercial power, not only towards the structure of competitive markets, but also the exercise of procedural and substantive rights of individual players in the market. Footnotes 1 ‘Had I got those TV rights I was prepared to withdraw from the scene and leave the running of cricket to the board. I will take no steps now to help anyone. It’s every man for himself and the devil take the hindmost.’ Kerry Packer’s response to reporters in 1977 when he was told that he could only bid for the rights to broadcast cricket like everyone else when the ABC contract expired. The remark was interpreted by some that Packer was not interested in improving the pay and conditions of cricketers but using them as commercial pawns to expand his commercial empire. Gideon Haigh, The Cricket War: The Story of Kerry Packer’s World Series Cricket, Bloomsbury 2018 at page 63. 2 Case number AT.40208. 3 Bosman (ECLI:EU:C:1995:463.) is the well-known case but this was decided under freedom of individual movement rules, not competition law. 4 O. Parker and B. Rosamond, ‘’Normative Power Europe’ Meets Economic Liberalism: Complicating Cosmopolitanism inside/outside the EU’ (2013) Cooperation and Conflict 48:2 229. See also B. Rosamond, ‘Three ways of Speaking Europe to the World: markets, peace, Cosmopolitan Duty and the EU’s Normative Power’ (2014) The British Journal of Politics and International Relations 16:1 133. These ideas are discussed at length in A. Geeraert and E. Drieskens, ‘Normative Market Europe: the EU as a Force for good in international sports governance?’ (2017) Journal of European Integration 39:1 79. 5 Rule 102, para. 2 (ii)). SU General Regulations (2014), available at http://static.isu.org/media/165642/constitution-and-general-regulations-version-july-31-2014.pdf. The sanctions apply also to coaches, trainers, doctors, team attendants, team officials, judges, referees, and even volunteers. 6 The genesis of the complaint lies with two Dutch academics, Dr. Ben Van Rompuy (Leiden University) and Dr. Antoine Duval (T.M.C. Asser Instituut) offering to support the complaint to the European Commission, and backed by the Chance to Compete Campaign (http://chancetocompete.com/an-open-letter-to-european-commissioner-for-competition-margrethe-vestager/). As with the pyramid structure often used to describe sports governance, athletes themselves are also placed in a pyramid structure, where the apex of superstars are usually able to exploit their sporting talents, on and off the field. But as Van Rompuy and Duval note: ‘This case was always about giving those that dedicate their lives to excelling in a sport a chance to compete and to earn a decent living. The majority of athletes are no superstars and struggle to make ends meet and it is for them that this decision can be a game-changer. ‘Statement on the European Commission’s ISU Decision by Ben Van Rompuy and Antoine Duval 8 December 2017. Available at: http://www.asser.nl/SportsLaw/Blog/post/statement-on-the-european-commission-s-isu-decision-by-ben-van-rompuy-and-antoine-duval 7 Icederby offered a top prize of $130,000, compared to the €2,000 a top speed-skater could hope to win at ISU events. 8 European Commission—Press release, Antitrust: Commission opens formal investigation into International Skating Union’s eligibility rules Brussels, 5 October 2015 http://europa.eu/rapid/press-release_IP-15-5771_en.htm 9 Szyszczak, Erika (2016) Eligibility Rules, Sport and Competition: Is the ISU skating on thin ice? Available at: http://www.littletonchambers.com/eligibility-rules-sport-and-competition-is-the-isu-skating-on-thin-ice-by-prof-erika-szyszczak-1026/ 10 ‘Accuracy and administrability go hand in hand’, CRA Conference, Brussels, 12 December 2017, available at: http://ec.europa.eu/competition/speeches/text/sp2017_24_en.pdf 11 Nick Butler, ‘European Commission order International Skating Union to change competition rules in landmark legal ruling’, Inside the Games, Friday 8 December 2017. Available at: https://www.insidethegames.biz/articles/1058881/european-commission-order-international-skating-union-to-change-competition-rules-in-landmark-legal-ruling 12 EU: C: 1974:140. 13 Duval, Antoine ‘The Court of Arbitration for sport and EU Law’ (2015) Maastricht Journal 22:2 224. A rare example of the CAC applying EU competition law can be found in Arbitration CAS 98/200 AEK Athens and SK Slavia Prague/Union of European Football Associations (UEFA), award of 20 August 1999. Available at: http://jurisprudence.tas-cas.org/Shared%20Documents/200.pdf. More recently in AS 2016/A/4490 RFC Seraing c. FIFA, 9 March 2017 the CAC held that EU law was applicable to the dispute because it satisfied the condition that it was a ‘mandatory provision of foreign law’ under Art. 19 of the Swiss Federal Act on Private International Law. Under Swiss law, mandatory provisions of foreign law must be taken into account when three cumulative conditions are satisfied: such rules belong to a special category of norms which need to be applied irrespective of the law applicable to the merits of the case; there is a close connection between the subject matter of the dispute and the territory where the mandatory rules are in force; in view of Swiss legal theory and practice, the mandatory rules must aim to protect legitimate interests and crucial values and their application must lead to a decision which is appropriate. 14 For eg: the later free movement case of Olympique Lyonnais SASP v Olivier Bernard, Newcastle United FC, ECLI: EU:C:2010:143. 15 See Van Rompuy, Ben ‘The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations’ (2015) Maastricht Journal of European and Comparative Law 22:2 174; Georgiev, G.S. (2007) ‘Contagious efficiency: the growing reliance on U.S.-style antitrust settlements in EU law’, Utah Law Review 4 971–1037. 16 For example, a ban as a result of a positive doping test, or unacceptable behaviour. 17 EU:C:2006:492. 18 Tom Serby, ‘The State of EU sports law: lessons from UEFA’s ‘Financial Fair Play Regulations’ (2016) International Sports Law Journal 16:1, 37. Cf: Weatherill S (2011) ‘Is there such a thing as EU sports law?’ Int Sports Law Journal 1–2, 39. 19 EU: C:2008:376. 20 See, for eg, the Swedish Competition Authority commissioned a Report on Sport and Competition Law, authored by Dr Johan Lindholm in 2015. A summary is available in English at: http://www.konkurrensverket.se/globalassets/publikationer/uppdragsforskning/forsk_rap_2015-5.pdf 21 A complaint was made in 2015 to the European Commission by Force India and Sauber that Formula One breaches the EU competition rules by favouring the five larger teams of Ferrari, McLaren, Red Bull and Williams in its governance rules and the distribution of prize money and this impedes the ability of smaller teams to compete. See: Keith Collantine, EU investigation into Formula One moves closer, F1 Fanatic Blog, 14 February 2017, Available at: https://www.f1fanatic.co.uk/2017/02/14/european-union-begin-f1-investigation-following-sauber-force-india-complaint/ 22 Swedish Competition Authority (Konkurrensverket) 13 May 2011, Swedish Automobile Sports Federation, Decision dnr. 709/2009. Available at http://www.kkv.se/upload/Filer/Konkurrens/2011/Beslut/09-0709.pdf 23 Case A 5/11, Svenska Bilsportförbundet v Konkurrensverket 20 December 2012. http://www.kkv.se/t/NewsArchive.aspx?id=529 24 Using the corresponding Swedish national competition law: Chapter 2, Article 1 Swedish Competition Act. 25 Swedish Competition Authority (Konkurrensverket), 28 May 2014, Bodybuilding and Fitness Competitions, Decision dnr. 590/2013. Available at: http://www.kkv.se/upload/Filer/Konkurrens/2014/13-0590.pdf 26 The global league for show jumping was designed to replicate the success of motor racing’s Formula 1 franchise and is backed by Frank McCourt, the billionaire sports investor and former owner of the Los Angeles Dodgers baseball team. 27 Competition and Consumer Protection Commission, Show Jumping Ireland amend allegedly restrictive rule, 1 May 2012. https://www.ccpc.ie/business/enforcement/civil-competition-enforcement/closed-investigations/show-jumping-ireland-restrictive-rule/ 28 Laurent Piau v Commission of the European Communities, ECLI:EU:T:2005:22. 29 For a fuller discussion see Duval, Antoine, and Mekenkamp Kester ‘De- or Re-Regulating the Middle Men The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt’ (2016) Asser International Sports Law Blog, 6 October 2016. 30 Stibbe, ‘Belgian competition authority upholds licence refusal to football club White Star’ https://www.lexology.com/library/detail.aspx?g=6421affd-ebcb-4fd7-b73c-098f417c364f 31 A useful source of up to date information is the Law in Sport Blog: http://www.lawinsport.com/articles/competition-law and TMC Asser International Sports Law Blog: http://www.asser.nl/SportsLaw/Blog/ 32 Mercedes, Red Bull, Ferrari, Williams and Mclaren. 33 Serby, Tom, ‘The state of EU sports law: lessons from UEFA’s ‘Financial Fair Play’ Regulations’ (2016) International Sports Law Journal 16:1 37; Van Rompuy, Ben ‘The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations’ (2015) Maastricht Journal of European and Comparative Law 22:2 174-204. 34 A notable example is the long-running litigation commenced by Claudia Pechstein after a doping ban imposed in 2009. 35 OJ C 2015 270/19. 36 Viewing the performance of an athlete may also depend upon the opponent. Leading football teams are often castigated for resting leading players when they are drawn against a weaker team in tournaments, or towards the end of a league season; in 2017 first round Wimbledon tennis fans felt short-changed when the opponents of Rodger Federer Angelique Kerber and Novak Djokovic retired injured after only short appearances on court, ostensibly to qualify to earn £35,000 as a first round loser. See Nick Harris, Wimbledon fans left short-changed after Roger Federer, Angelique Kerber and Novak Djokovic matches amount to just 179 MINUTES on Centre Court, 4 July 2917, available at: http://www.dailymail.co.uk/sport/tennis/article-4665788/Wimbledon-fans-angry-179-minutes-play-Centre.html#ixzz4yVOoUKsj 37 J. Grix and B. Houlihan ‘Sports Mega-events as part of a Nation’s Soft Power Strategy: the Cases of Germany (2006) and the UK(2012) (2014) The British Journal of Politics and International Relations 16:4 572 38 A current case is the claim in newspapers (see, for example, The Daily Telegraph, 8 November 2017) that a boxer, Tyson Fury, may sue the UK Anti-doping body (UKAD) for two years of lost earnings after being suspended from boxing as a result of a positive test for a banned steroid. UKAD is reported to have held meetings with the Department for Digital, Culture, Media and Sport, through whom they are accountable to Parliament, to confirm if the Government would underwrite such a case, since the annual budget of UKAD of £8 m would not cover a potential damages claim. 39 European Commission—Press release,Antitrust: International Skating Union’s restrictive penalties on athletes breach EU competition rules Brussels, 8 December 2017, available at: http://europa.eu/rapid/press-release_IP-17-5184_en.htm 40 See the interviews with European Commission officials reported in A. Geeraert and E. Drieskens, Normative Market Europe: the EU as a force for good in international sports governance? 2016) Journal of European Integration 39:1 79, 89–90. 41 Nicholas Hirst, ‘EU to sports chiefs: Get your skates on Competition commissioner says she wants to send a message with ice-skating case’. Politico, 8 December 2017Available at: https://www.politico.eu/article/margrethe-vestager-orders-skating-union-to-change-rules/ 42 This provision is under-used, but a national court may contact the European Commission to ask it to transmit information in its possession or to give its opinion on questions concerning the application of EU competition rules. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of European Competition Law & Practice – Oxford University Press
Published: Mar 1, 2018
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