EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

contrary to Articles 101 and 102 TFEU, or whether such a monopoly is necessary to ensure the proper functioning of sport. This paper seeks to clarify these issues and assess whether there is a need for further regulation at EU level. 2. Special Characteristics of Sport It is undisputable that sport has certain characteristics that distinguish it from other industries. These characteristics include the need for and interdependence between competitors, the uncertainty of outcome, the educational, social and cultural function, and the monopolist pyramid structure. The distinctive feature of this governance structure is that, as a rule, a single governing body regulates a sport at European or international level (Weatherill, 2017, pp. 2 et seq.). Such pooled power is necessary as most sports are truly global, i.e., their rules of the game do not differ regardless of the country in which they are played in. Probably the most unique aspect of sport is the need for competitors to bring value to it. Participants are not competitors in the usual sense, but cooperate and compete at the same time. Hence the need for an overarching structure for organising competitions, rules of the game and governance. In fact, each sport involves a complex system with horizontal relationships between competitors as well as vertical relationships between the governance and the individuals involved. Sports associations usually have practical monopolies in a given sport and are considered dominant. This results from the pyramid structure that makes clubs and athletes dependent on the activities and regulations of the association (see e.g., Budzinski and Szymanski, 2014). Another peculiarity is the difficulty in drawing a line between economic and non economic aims or purely sporting rules and all other rules. Sporting rules can pursue a variety of objectives, including the integrity of competition, the health of players and the competitive balance (Commission, 2007b, chapter 2.1.5). They can be divided into different categories of rules: rules of the game, rules governing the conduct and transfer of players, rules governing relationships with other actors (e.g. agents), rules governing the monetisation of value created (e.g. broadcasting rights) or rules governing income caps. Competition law tends to intervene in cases where it is not the classical rules of the game that are at stake, but everything else related to a particular sport. Especially rules regulating the behaviour of participants are increasingly scrutinised by authorities and courts (e.g., C-519/04 P Meca-Medina (anti-doping) or T-93/18 ISU (participation in rival competitions)). These peculiarities are also reflected in sport litigation. Litigation can take months, if not years, to be decided, while sport careers are usually very short. Thus, in practice, sport governing bodies are immune to litigation, as athletes usually choose to continue their careers rather than end them prematurely (Weatherill, 2017, p. 2).

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