EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

For these reasons, some scholars and professionals argue that the lex sportiva , which encompasses the regulations and practices created and adopted by sport governing bodies, merits exception from EU law (the so-called sporting exception; Weatherill, 2017, p. 6). It should be noted, however, that Article 165 TFEU explicitly recognises and refers to the specificity of sport and its structure. It aims to protect the European model of sport and governance. Although its social, cultural and educational functions are recognised, sport generates large amounts of money (cf. Agafonova, 2019, p. 99), i.e., it is not that special that it would be incomparable with other industries. In the end, despite their interdependence, clubs and players remain competitors in terms of players, sponsors, or broadcasters. Therefore, the common argument that issues of a purely sporting nature (as initially differentiated from commercial activities in C-36/74 Walrave , paras. 4 and 8) should be excluded from the application of EU law has lost its relevance. Today, competition law is applied by the Member States and the EU institutions as soon as economic activities are involved. Nonetheless, both the Commission and the CJEU take into account the special characteristics in their decision-making through the so-called Wouters test. Stephen Weatherill, Emeritus Jacques Delors Professor of European Law at Oxford University, refers to the relationship of federations to EU law as “conditional autonomy”, according to which sport governing bodies act in line with their lex sportiva on condition that they demonstrate why their actions and practices are necessary for the organisation and integrity of sport and thus in conformity with EU law (Weatherill, 2017, pp. 71 et seq.). What this means will be clarified in the following chapter. 3. Sport and EU Competition Law It follows from the Court’s ruling in Meca-Medina that EU competition law is fully applicable to cases concerning the organisation and regulation of sport (C 519/04 P Meca-Medina , para. 27; Van Rompuy, 2015, pp. 174 et seq.). Hence, the sporting exception was curtailed and ultimately dismissed by the CJEU and cannot be invoked to exclude the application of EU competition law, which inherently restrains the autonomy of sport governing bodies. Article 101(1) TFEU prohibits agreements between undertakings and decisions by associations of undertakings, which have as their object or effect the restriction, distortion or prevention of competition, and which affect trade between Member States. According to Article 102 TFEU, the abuse of a dominant position by one or more undertakings which affects trade between Member States is incompatible. Moreover, the rules and decisions of sport governing bodies are often subject to challenge on free movement grounds (e.g., C-415/93 Bosman on transfer rules and the free movement of workers), although this is not the focus of this paper.

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