On 5 October, the European Commission launched a formal antitrust investigation into the International Skating Union (ISU) eligibility rules. ISU rules prevent skaters to take part in events not approved by the ISU, under threat of being permanently banned from competitions such as the Winter Olympics and the World and European Championships.
The decision to open an antitrust investigation into ISU rules has been taken following a complaint by two Dutch ice speed skaters, Mark Tuitert and Niels Kerstholt. The two athletes wanted to participate in a new speed skating event in Dubai. However, ISU decided not to recognise this event as it was “possibly being closely connected to betting”, and threatened anyone participating to become ineligible for ISU activities and competitions.
The European Commission will have to decide whether ISU rules violate article 101 and 102 TFEU that prohibit anti-competitive agreements and the abuse of a dominant market position.
The specificity of sport and the autonomy of sporting organisations have been recognised by the EU on several occasions – Margrethe Vestager, EU Commissioner for competition policy, recalled “the role of international sports federations to set the rules of the games and to ensure the proper governance of sport”. She justified the opening of the investigation by the fact that the ISU case “raises specific allegations of breaches of competition law at international level”.
With regard to competition investigations in sport, the European Commission has generally used a case by case approach. However, the ISU case offers the possibility to set up some general criteria that could enhance the legal certainty for the future. It is worth to mention that several similar cases are ongoing with some EU national antitrust authorities such as in Sweden, Italy and Ireland.
Previous jurisprudences from the European Court of Justice stated that sporting rules are applying to EU competition rules when the organisations setting-up the rules or the persons affected by the rules are part of an economic activity. Sporting rules are likely not to breach the anti-trust provisions of the EC Treaty, if their anti-competitive effects are inherent and proportionate to pursue legitimate interest. Contrary to state aid investigations, there are no legal deadlines regarding anti-trust cases.
Press release of the European Commission