1. The Autonomy and Specificity of sport beyond The ISU case
MICHELE COLUCCI
BUCHAREST– ROMANIA
2 June 2018

2. 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 )

3. 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”

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

5. 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

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

7. 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.

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

9. 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).

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

11. 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

12. 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

13. 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

14. 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.

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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

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

24. 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

25. 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).

26. ALL ROADS LEAD TO ROME BUT FIRST ... THEY GO THROUGH BRUSSELS