EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

is inherent in the pursuit of legitimate objectives. Nevertheless, the decision taken and the disciplinary measures announced could and should be found to be disproportionate. The analysis would then end here. However, if the Wouters test is not applied or not met, UEFA and FIFA would still have a chance for justification under Article 101(3) TFEU if they can plausibly demonstrate that consumers benefit from their decision and that competition is not substantially eliminated. Even in this case, UEFA and FIFA are unlikely to pass this test, leaving them no chance against Europe’s top clubs and the EU’s competition law rules. 4. Conclusion The EU has been consistently resistant to grant sport an automatic exemption from the application of EU law, despite the claim of sport governing bodies of commercially significant sports that they deserve autonomy by advocating fair and tolerant play and lifestyles. This results not the least from the lack of EU competence in the field of sport. In the presence of economic effects, the lex sportiva is never completely exempt. Instead, EU law recognises and takes into account the special nature and characteristics of sport, so that certain measures taken by sport governing bodies with overall responsibility for a given sport are permissible to protect their legitimate interests, subject to proportionality. As a result, the compatibility of sporting practices with EU law provisions must be assessed on a case-by-case basis. The downside of such a methodology is, of course, legal uncertainty and unpredictability for the sports associations, clubs and players concerned. The main problem is the leverage of regulatory power to achieve commercial advantage and the resulting imbalance of power between the different actors in a given sport. The dilution of these two functions, regulatory and commercial, creates a conflict of interest that is likely to be challenged even more frequently in court. As can be seen from the CJEU’s case law on sport and the above analysis on the Super League, the chances of winning against sport governing bodies and their restrictive regulations are relatively high. In practice, however, athletes or clubs are unlikely to claim a breach of EU competition law, as they may fear retaliation, reputational damage, high litigation costs and an early end to their careers. Sport is a very dynamic and fast-growing sector (Commission, 2007b, chapter 3). For this reason, and in combination with a lack of competence, further regulation at EU level would be redundant. It is not possible to foresee every type of possible sporting rule; such a list would never be exhaustive. Nevertheless, the EU, especially at the initiative of the Commission and with the support of the Courts, must take a more assertive role. More intervention leads to a greater threat to the sport governing bodies’ autonomy and a greater ability to control the legitimacy and proportionality of the rules and sanctions adopted. This is all the more

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