The Autonomy and Specificity of sport beyond The ISU case MICHELE COLUCCI www.colucci.eu E-mail: info@colucci.eu BUCHAREST– ROMANIA 2 June 2018

THE TREATY “The Union shall contribute to the promotion of European sporting issues while taking account of its specific nature, its structures based on voluntary activity and its social and educational function”. (art. 165 TFEU )

SPECIFICITY of SPORT “All the characteristics that make sport special, such as for instance the interdependence between competing adversaires or the pyramid structure of open competitions”

Specificity of the ‘Sport structure’ Autonomy and diversity of sport organisations Pyramide structure of competitions One national federation per sport

SPECIFICITY of Sporting activities and rules Separate competitions for men and women Limitations on the number of participants in competitions The need to ensure uncertainty concerning outcome

General Principle Sporting rules are subject to the application of Union Law! (White Paper on Sport) Competition Law Internal Market rules No discrimination

FREE MOVEMENT OF WORKERS Artt.45 TFEU Workers have the right to: accept offers of employment actually made; move freely within the territory of Member States for this purpose; stay in a Member State for the purpose of employment; remain in the territory of a Member State after having been employed in that State.

EQUAL TREATMENT BAN ON “DIRECT” DISCRIMINATIONS Art. 18 TFEU on the basis of nationality Art. 45 TFEU:… Access to employment Pay Employment conditions

The case law of the ECJ “Sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty” . Walrave case, C-36/74. Donà v. Montero case, C- 13/76(nationality clause). sports or economic activity? C-51/96 Deliège case”, C-176/96, Lethonen case, Meca – Medina case(doping).

THE BOSMAN case cause C -415/93 DAVID v. GOLIAH! Sport= economic activity= the end of transfer compensation NO QUOTA on foreign (EU) players!

FIFA regulations on Status and Transfer of Players from 2001 to 2018 The Gentlemen’s agreement FOCUS ON: free of movement but Pacta sunt servanda/ Protected Period (Art. 17 FIFA RSTP,circular letter 1645/2018, enter into force 1 June 2018) protection of minors training compensation solidarity mechanism dispute resolution and arbitration system

THE TREATY ART. 101 TFEU: Are incompatible (and void) with the common market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may: affect trade between Member States have as their object or effect the prevention, restriction or distortion of competition within the common market

Exceptions Agreements which contribute to improving: the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, And which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question

ABUSE OF DOMINANT POSITION ART. 102 TFEU: Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.

Fields of application in Sport Transfer rules Sale of tickets Broadcasting rights Monopoly of federations Multi-ownership of clubs

THE MECA MEDINA test Sporting rules are compatible with EU law if (in the overall context): Objective(s) pursued are legitimate Their restrictive effects are inherent to the pursuit of those objectives The rules are proportionate to those objectives

Sporting rules that are more likely to comply with Art. 101 and Art Sporting rules that are more likely to comply with Art. 101 and Art. 102 TFEU Selection criteria for sport competition At home and away rules Transfer periods Nationality clauses for national teams Rules prohibiting the multiple ownership of clubs Antidoping rules Rules of the game

Sporting rules that are less likely to comply with Articles 101 and 102 TFEU Rules regulating professions ancillary to sport Rules excluding legal challenges of sports awards before ordinary Courts Rules limiting the number of foreign players Rules requiring transfer payments for players at the end of their contracts

The ISU case International Regulatory body for figure and speed skating at worldwide level Pre-authorisation system for events of third party organisers THE ISU eligibility rules Suspension Lifetime ban for participating in unauthorized events by ISU

EU Commission’ investigation Is ISU abusing its regulatory power by precluding (i) skaters from participating to such events? (ii) third parties from hosting different events and

Analysis ISU is a sports association but it is an “undertaking” Organization and commercial exploitation of sports events A sport governing body cannot abuse its regulatory and disciplinary powers in an anti-competitive manner

ISU justifications Eligibility rules not linked to commercial considerations nor intended to stifle competitors, but rather “protect” participants from illegal betting Ensure integrity of sport Protect the health of the athletes

ISU eligibility rules Legal analysis Obstacles for skaters to their freedom to provide services Significant barriers to finding skaters for third parties (events’ organisers)

Eligibility rules Have the object but also the effect to restrict potential competition because: (i) their purpose is to preclude other organizations from running competing events (ii)ISU aims to protect its own economic interests (iii) they are not related to a legitimate sporting objective as ISU claims

Specificity of Sport NOT A BLANKET EXEMPTION from EU competition law All rules on authorizations of third-party events must be based on objective, transparent,non discriminatory criteria Sanctions must be proportionate (MECA –Medina test).

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