EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

position due to a conflict of interest. The governing body had a regulatory power which it could use to favour its own events and competitions and exclude those of its competitors (C-49/07 MOTOE , paras. 33 and 51; see also Opinion of AG Kokott in C-49/07 MOTOE , para. 98). In that regard, the Court held that [A] legal person whose activities consist not only in taking part in administrative decisions authorising the organisation of [sport] events, but also in organising such events itself and in entering, in that connection, into sponsorship, advertising and insurance contracts, falls within the scope of Articles [102 and 106 TFEU]. Those articles preclude a national rule which confers on a legal person […] the power to give consent to applications for authorisation to organise such competitions, without that power being made subject to restrictions, obligations and review (C-49/07 MOTOE , para. 53). The latest decision of the CJEU dealing with the application of competition law to sport is the International Skating Union (ISU) case from December 2020. The GC upheld the Commission’s decision on appeal concerning measures taken by the speed skating governing body (ISU) to protect its model against third-party organisers of competing events. The skaters wanting to take part in events not approved by ISU were banned from competitions organised by it. The Commission considered that ISU’s powers went beyond what was necessary for the organisation of the sport and the preservation of its integrity (AT.40208 International Skating Union’s Eligibility Rules , paras. 254–258; T-93/18 ISU , paras. 59 et seq. and 81 et seq.). It found a conflict of interest as ISU’s regulatory function overlapped with its commercial interests, of which the latter prevailed (T-93/18 ISU , para. 75). This was held to be a restriction by object in breach of Article 101 TFEU (AT.40208 International Skating Union’s Eligibility Rules , paras. 162-188; T-93/18 ISU , para. 123). Moreover, the sanctions envisaged by ISU were considered disproportionate in the absence of clear authorisation criteria (T-93/18 ISU , paras. 84 et seq.). The problem in ISU was not the gatekeeper role of the governing body, but the leveraging of its economic power to gain a commercial advantage (Weatherill [online], 2021). The GC ruling has been appealed and is still pending, as are the questions referred to the CJEU for The similarities between the ISU case and the Super League as well as the possible disciplinary measures against participating members are obvious. Both situations involve a non-compete obligation imposed by the sport governing body responsible for the organisation of tournaments. In the regulation of football, UEFA and FIFA enjoy a monopoly on the organisation and authorisation of European and international competitions respectively. Their statutes prohibit a preliminary ruling on the Super League. 3.2 Pending Super League Proceedings

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