EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

based abroad, which in the context of the SGBs is combined with the fact that the majority of them are registered in Switzerland (Szyszczak, 2018, p. 264). Thus, the application of the provisions of the competition law of the EU may have a positive effect on increasing the social accountability of the actions of the SGBs. Such an effect would amount to the increased legitimacy of the SGBs in adopting their own “societal constitutions” such as the Olympic Charter and statutes (Duval, 2018, pp. 245–269; Bützler, Schöddert, 2020, pp. 40–54) and attach much-needed strings on often wilful actions of sport-Leviathans. Similarities to the approach and reasoning behind such an effect and the most prominent proposal of the Commission related to the competition law, i.e., Digital Market Act regulation (limiting market and social power of digital gatekeepers) are self-evident in this respect. 3.2.2 Strengthening the fundamental rights of the athletes Such strings are much-needed foremost due to the effect that the actions of the SGBs may have on the individuals. Especially in the most vulnerable sphere of their fundamental rights. Without any form of societal control, the SGBs would be almost immune in affecting the fundamental rights of the athletes – due to the private nature of the SGBs invoking fundamental rights enshrined in the Charter of fundamental rights of the EU (CFREU) or the European Convention on Human Rights (ECHR) in horizontal disputes may be very obstructed (Lewandowski, 2020, pp. 55–66; Shinohara, 2021; Haas, Hessert, 2021, pp. 287– 307). Additionally, the combined size, market power, self-regulatory competencies, and transnational activities grant the SGBs a very strong position vis-à-vis athletes in economic and legal terms – this disproportion translates into de facto semi verticality of their relation (in comparison to the formally horizontal relation of two equal, private entities) (Kolasiński, 2020, pp. 4–8; Becker, 2007, pp. 1017– 1018). The affected fundamental rights can be of various character (freedom to choose the occupation, right to privacy, right to healthy working conditions, the prohibition of discrimination in the workplace), but arguably the most severe violations may concern the right to a fair trial due to the widely used non voluntary arbitration clauses within, conferring almost exclusive right to appeal from the decisions of the SGBs on the Court of Arbitration for Sports (CAS). The topic of compatibility of sports arbitration system with the requirements of impartiality and independence and the standards of Article 47 of the CFREU and Article 6 of the ECHR is widely discussed in the literature (Łukomski, 2013; Duval, 2017; Duval, 2020; Duval, Van Rompuy, 2016; Kolasiński 2018; Pijetlovic, 2014; Motyka-Mojkowski, Kleiner, 2017; Cattaneo, 2021), therefore it is worth to highlight the contribution that can be made in this respect by the competition law of the EU. This contribution is twofold – on the one hand, the European Commission in its ISU decision determined that the arbitration

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