The European Commission’s competition decisions in the area of sport, which set out broad principles regarding the interface between sports-related activities and EU competition law, are widely publicized. As a result of the decentralization of EU competition law enforcement, however, enforcement activity has largely shifted to the national level. Since 2004, national competition authorities (NCAs) and national courts are empowered to fully apply the EU competition rules on anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU).

Even though NCAs have addressed a series of interesting competition cases (notably dealing with the regulatory aspects of sport) during the last ten years, the academic literature has largely overlooked these developments. This is unfortunate since all stakeholders (sports organisations, clubs, practitioners, etc.) increasingly need to learn from pressing issues arising in national cases and enforcement decisions. In a series of blog posts we will explore these unknown territories of the application of EU competition law to sport.

We kick-start the series with a recent investigation of the Swedish National Competition Authority (NCA) into a so-called duty of loyalty clause applied by the Swedish Bodybuilding and Fitness Federation (Svenska Kroppskulturförbundet, SKKF).[1]

Source: http://www.scmp.com/photos/recent/all/1046780

The facts

The SKKF is the only national member of the International Bodybuilding Federation (IFBB) and organises various championships in the sport of bodybuilding and fitness in Sweden. It is essential for Swedish clubs, individual athletes, and officials to be a member of the SKKF as this is prerequisite for participation in IFBB international competitions.

The IFBB’s rules and regulations form an integral part of the SKKF’s Statutes. According to the SKKF’s rules, members who compete or otherwise participate in contests that are not approved or authorised by the SKFF or IFBB can be fined or suspended (i.e. the duty of loyalty clause). Athletes who have taken part in an unsanctioned event must also test for doping, at their own expenses, before they are allowed to compete at SKKF or IFBB events again.

In October 2013, BMR Sport Nutrition AB, a manufacturer of nutritional and bodybuilding supplements that also occasionally organises unsanctioned bodybuilding and fitness events in Sweden, filed a complaint before the NCA alleging that this rule violates Article 101 TFEU and Chapter 2, Article 1 of the Swedish Competition Act as it prevents event organisers from effectively competing with the SKKF (i.e. they are deprived from the chance to gather the human resources necessary for a successful event). The complainant submitted evidence that the threat of a fine and/or the withdrawal of their license by the SKKF effectively deterred athletes from participating in non-sanctioned events.

The context

The Swedish bodybuilding case follows a 2011 decision of the NCA, which ordered the Swedish Automobile Sports Federation (Svenska Bilsportförbundet, SBF) to abolish its rules preventing members from participating in motorsport events not authorized by the KKF.[2] On appeal by SBF, the Swedish Market Court upheld the decision in its entirety.[3]

This “precedent” case dealt with two duty of loyalty clauses in the SBF’s Common Rules prohibiting officials and contestants, licensed by the SBF, to officiate or participate in motor sport events other than those organised by the SBF or its member clubs. A violation of these provisions could result in a fine and/or withdrawal of the licence to officiate or compete in SBF events.

The NCA and the Market Court established that the contested rules constituted a decision by an association of undertakings. While the NCA had only applied national competition law, the Market Court, having defined the organisation of motorsport competitions in Sweden as the relevant product market, found that trade between the Member States was affected and therefore also applied Article 101 TFEU. According to the Court, the mere existence of the rules considerably distorted competition because they led to an absolute ban for SBF members to participate in non-sanctioned events. It concluded that, even if the rules would be regarded as serving a legitimate objective, the total ban could not be considered proportional to achieving such an objective. Moreover, the Court concluded that the restriction of competition could not benefit from an exemption under Article 101(3) TFEU or Chapter 2, Article 1 of the Swedish Competition Act.

While the Market Court’s judgment is far from innovative and carefully followed the proportionality test adopted by the Court of Justice in Meca-Medina, the case drew much media attention and raised concerns and criticism from the Swedish sports movement. Having demonstrated the remedial potential of EU competition law to challenge organisational sporting rules, it was only a matter of time before further national enforcement action would result from this case. 

The outcome

In a statement responding to the filing of the complaint by BMR Sport Nutrition AB, the chairman of the SKKF contested the apparent analogy with the SBF (motorsport) case. He essentially put forward three reasons. First, the SKKF is a non-profit organisation that pursues an aim in the general interest (i.e. the promotion of sport) and reinvests all its income, which is insufficient to cover its costs, in its sports activities, e.g. to fund education and training activities, doping tests, and travel expenses of the national team. This precludes the assumption that it pursues an economic activity. It follows that the SKKF cannot be regarded as an undertaking for the purposes of competition law (contrary to commercially successful sports associations). Second, the SKKF does not act independently of the will of its members. Similar to trade unions, member athletes voluntarily submit themselves to the applicable regulations when they join a member club. They can move to change certain rules if they find, in a true democratic spirit, a majority for such change. Alternatively, member athletes can choose to leave their club and join another association. Third, the right of freedom of association excludes the rule-making powers of the SKKF from the ambit of the competition rules.

Nevertheless, following several meetings between the NCA and the SKKF, the latter committed no longer to suspend or fine athletes, coaches, officials or judges that participate in non-sanctioned events.[4] The requirement that they must test for doping, at their own expense, was not abolished. According to the SKFF, this requirement was necessary to comply with the IFBB anti-doping rules, which conform to the provisions of the World Anti-Doping Code.

Given the commitment of the SKKF to no longer apply the duty of loyalty clause, the NCA decided to close the investigation without concluding whether competition law had been infringed.

Commentary

Those familiar with sports-related competition law cases will surely recognize the arguments of the chairman of the SKKF to assert immunity from the application of the competition rules. While they have been tried and tested many times, also before the Union courts, these arguments keep popping up. So let’s take a closer at why they are not accepted.

Regarding the claim that the SKKF is a non-profit organisation that exclusively aims to promote the development of the sport, it must be recalled that – if there still was any doubt - in Meca-Medina the Court of Justice made clear that the qualification of a rule as “purely sporting” was insufficient to remove the body adopting that rule (or the person engaging in the activity covered by it) from the scope of the Treaty. It thus must be examined, irrespective of the nature of the rule, whether the specific requirements of the various provisions of the Treaty are met. For the purpose of the competition rules, the notion of “undertaking” is a core jurisdictional element. According to established case law, this concept covers “any entity engaged in an economic activity regardless of the legal status of the entity or the way in which it is financed”.[5]

In an attempt to escape the bite of the competition rules, various other sports associations have time and again asserted that they cannot be regarded as “undertakings” because their objective is not the pursuit of economic interests. Even when only considering their regulatory functions, this reasoning finds no support in the case law. The Court of Justice has consistently held that the concept of undertaking does not presuppose a profit-making intention. The fact that entities are non-profit making has no effect on their classification as undertakings.[6] Similarly, the fact that entities pursue cultural or social activities does not in itself prevent these activities from being regarded as economic.[7]

In the case at hand, it is clear that in addition to the SKKF, even assuming that it organises bodybuilding and fitness events without seeking to make profit, other entities like BMR Sport Nutrition AB are also engaged in that activity (and do seek to make a profit). The SKKF offers goods or services on a market in competition with others. The success or economic survival of the SKKF ultimately depends on it being able to impose its services to the detriment of those offered by other event organisers. Consequently, the SKKF must be considered as an undertaking engaged in the markets for the organisation and marketing of bodybuilding and fitness events.

Regarding the somewhat chucklesome claim that the SKKF should be qualified as a trade union (or other professional association) that cannot act independently of the will of its members, it is sufficient to stress that Article 101 TFEU also applies to “associations of undertakings”. A federation like the SKKF, the beacon of democracy it may be, is not an association of employees but (also) of member clubs that engage in economic activities. Hence, the result of the delimitation between the federation acting “in its own right” or “merely as an executive organ of an agreement between its members” is irrelevant: Article 101 TFEU still applies to its regulations.

Regarding the claim based on the principle of freedom of association, indeed protected in the Swedish constitution as well as in the EU legal order, it is difficult to see how the duty of loyalty clause could be considered an inevitable result thereof. In any event, the Court of Justice has made clear that this right cannot be so absolute as to afford sports federations’ complete immunity from EU law.[8] In other words, the need to guarantee sports’ right of self-regulation cannot be a blank check to avoid scrutiny of measures that may conceal the pursuit of economic interest. Provided that its rules are proportional to a legitimate objective, SKKF should have nothing to fear from the competition rules.

So contrary to what the chairman of the SKKF contented, the analogy between its rule and the contested rule in the SBF (motorsport) case was accurate. A confrontation with this inconvenient truth was sufficient to convince the SKKF to commit itself to no longer suspend or fine athletes, coaches, officials or judges for participating in non-sanctioned competitions. That the requirement of a doping test (for those having participated in competing events) could remain clearly illustrates that competition law will leave unscratched restrictive sporting rules that are deemed inherent and proportionate to the organisation and proper conduct of sport. It almost makes you wonder what all the fuss is about when competition law confronts the world of sport.

One final note: the contested “SKKF” rule is the national equivalent of the clause contained in the IFBB Constitution (which forms an integral part of the SKKF’s statutes). Article 19.4.7 stipulates that:

“Any athlete or official who participates in a competition or event not approved or sanctioned by the IFBB, may be fined, suspended or expelled. The amount of the fine as well as the suspension period will be decided by the IFBB Disciplinary Commission … Once the suspension has been completed and before participating in an IFBB competition or event, the athlete must be drug tested at his or her own expenses”

Participation in an event or competition includes (but is not limited to!) competing, guest posing, giving a seminar, lecture or similar presentation, judging, officiating, allowing the use of one’s name and/or likeness for promotional purposes, and/or taking part in a non-IFBB sanctioned competition or event in any other way, shape or form.

To the IFBB and all other European member federations, who have to the author’s knowledge not decided to no longer enforce or abolish this rule: beware!

[1] Swedish Competition Authority (Konkurrensverket), 28 May 2014, Bodybuilding and Fitness Competitions, Decision dnr. 590/2013, http://www.kkv.se/upload/Filer/Konkurrens/2014/13-0590.pdf

[2] Swedish Competition Authority (Konkurrensverket) 13 May 2011, Swedish Automobile Sports Federation, Decision dnr. 709/2009, available at http://www.kkv.se/upload/Filer/Konkurrens/2011/Beslut/09-0709.pdf

[3] Swedish Market Court's ruling 2012:16 in Case A 5/11, Svenska Bilsportförbundet v Konkurrensverket (December 20, 2012), http://www.kkv.se/t/NewsArchive.aspx?id=529

[4] The SKKF notified its member athletes and clubs of the changes via its newsletter and website.

[5] Case C-41/90 Höfner and Elser [1991] ECR I-1979, para. 21.

[6] See e.g. Case C-222/04 Ministero dell'Economia e delle Finanze v Cassa di Risparmio di Firenze SpA and others [2006] ECR I-289; Case C-475/99 Firma Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I-8089; Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125; C-244/94 Fédération Française des Sociétés d’Assurances and others v Ministère de l'Agriculture [1995] ECR I-4013; Joined Cases C-115/97 to C-117/07 Brentjens’ Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen [1999] ECR I-6025.

[7] See e.g. Joined case C-180/98 to C-184/98 Pavel Pavlov and Others v Stichting Pensioenfonds Medische Specialisten [2000] ECR I-6451; Case C‑218/00 Cisal [2002] ECR I‑691.

[8] Case C-415/93 Union Royale Belge des Sociétés de Football Association and others v Bosman and others [1995] ECR I-4921, paras. 79-80

Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

The organizational structure of sports in Europe is distinguished by its pyramid structure which is marked by an open promotion and relegation system. A truly closed system, without promotion and relegation, is unknown to Europe, while it is the main structure found in North American professional sports leagues such as the NFL, NBA and the NHL. Recently, top European football clubs along with certain members of UEFA have been debating different possibilities of introducing a more closed league system to European football. Some football clubs have even wielded the threat of forming an elite closed breakaway league. Piercing through these intimidations and rumors, the question of whether a closed league system could even survive the scrutiny of EU competition law remains. It could be argued that an agreement between clubs to create a completely closed league stifles competition and would most likely trigger the application of Article 101 and 102 TFEU.[1] Interestingly, a completely closed league franchise system has already permeated the European continent. As outlined in my previous blog, the League of Legends European Championship (LEC) is a European e-sports competition that has recently rebranded and restructured this year from an open promotion and relegation system to a completely closed franchise league to model its sister competition from North America, the League Championship Series. This case is an enticing opportunity to test how EU competition law could apply to such a competition structure.

As a preliminary note, this blog does not aim to argue whether the LEC is a ‘real’ sport competition and makes the assumption that the LEC could be considered as a sports competition.[2]

2.     LEC’s Position in the League of Legends Competitive Structure

The LEC is the pinnacle of League of Legends (LoL) competition in Europe that is organized by its developer, Riot Games. Currently, the LEC is the only path to the League of Legends World Championship. Its previous name was the EU League Championship Series (EU LCS), and it featured a promotion and relegation system with the EU Challenger Series. The EU Challenger Series has been replaced with the European Masters, which is a tournament that places the top seed from European regional leagues against each other. It is important to highlight that the teams in the LEC do not compete on behalf of their region (although some of the organizations from the LEC have their second team competing in a regional leagues).

The franchise agreement between the LEC and the participant e-sport organizations required organizations to buy-in at 10.5 million euros into the LEC. The ensuing partnership lasts three years and ensures that the organization is guaranteed a spot in the LEC during this period, unless there are “consistent poor performance or disciplinary issues”. The agreement effectively prevents any other European organization/team from the regional leagues and the European Masters from accessing the highest LoL championship in Europe (the LEC) and completely cuts off any opportunity to reach the League of Legends World Championships for at least three years.

The previous system of relegation and promotion has helped foster talent and create new successful European e-sports organizations. Currently, the winners of Mid-Season Invitational 2019 (a mid-year world championship) is G2 Esports, which was able to rise to the EU LCS through the EU Challenger Series in late 2015. As a result, concerns have been expressed that by adopting the closed league model, the LEC will not be able to nurture new talent and competitive organizations. This worry goes to the heart of Article 165 TFEU’s aim to develop the ‘openness’ of sporting competitions and gives merit to analyzing the LEC under EU competition law rules.[3]

3.     EU Competition Law and its Application to Sports

Generally speaking, EU competition law seeks to ensure ‘effective’ competition between undertakings in Europe. Concerning the field of sports, the CJEU asserted that rules of sport governing bodies fall under the inspection of EU competition law even if they are purely sporting in nature.[4] However, the CJEU left room for sport governing bodies to defend their measures which fall within the scope of competition rules. Sporting rules can escape the prohibitions of EU competition law if it can be shown that the concerned measures are inherent to the objectives it seeks to achieve and that they are “proportionate to the legitimate genuine sporting interest pursued”.  In other words, the specificity of sport must be taken into account.[5] Additionally, the CJEU has recognized that the participation in sport competitions can constitute economic activity because of the exposure that participation may provide.[6] Thus, preventing other organizations and their athletes from taking part in a league competition and as a consequence, the world championships, can have detrimental economic impacts on that organization and its athletes.

For this reason, the organizational structure of sport competitions may have colossal economic ramifications and easily fall within the scope of the Treaties. Articles 101 and 102 TFEU are the two cornerstones of EU competition law that prima facie would be applicable to this case. Essentially, Article 101 TFEU prohibits agreements between undertakings that restrict competition, and Article 102 TFEU forbids an undertaking or group of undertakings (collective dominance) from abusing its dominant position on the relevant market. So when a group of undertakings hold a dominant position in the relevant market and make an agreement which abuses their dominant position, the CJEU has recognized that both Article 101 and 102 TFEU may be applied. Nevertheless, the following analysis will concentrate on Article 102 TFEU.

4.     Does LEC (and its participant organizations) have a Dominant Position?

4.1.Are the LEC (and its participant organizations) undertakings?

As a preliminary point, the European Commission and the CJEU has repeatedly qualified sport governing bodies as undertakings under EU competition law.[7] The key criteria to determine whether an entity is an undertaking under EU law is whether the entity is engaged in ‘economic activity’. In MOTOE, the CJEU ruled that ELPA, a body that was organizing motorcycling events, was engaged in economic activity because it entered into “sponsorship, advertising and insurance contracts designed to exploit those events commercially”.[8] In the present case, there is little doubt that the League European Championship Limited, which is a private company limited by shares incorporated in the Republic of Ireland controlled by Riot Games, could be considered an undertaking since it concludes sponsorships and advertises its events.

The organizations that have signed the franchise agreement with Riot Games are mainly private limited companies.[9] These organizations enter into sponsorship agreements, and as stated earlier, the CJEU found that the participation in a sport competition could constitute economic activity. It follows that these e-sport organizations would easily be considered as undertakings.

4.2.What is the relevant market?

The next issue is determining the relevant market, including the relevant product and geographic market, the LEC and its participant organizations occupy. To identify the relevant product market, EU competition law examines the substitutability of the product or service. For example, in defining the relevant product or service market, the CJEU in MOTOE quite readily found that ELPA was “engaged ... in the organisation of motorcycling events and … their exploitation by means of sponsorship, advertising and insurance contracts”.[10]

From the outset, it should be underlined that games considered as e-sports greatly differ from one another.[11] E-sports usually fall within different genres of games, such as Real-Time Strategy (RTS), First-Person Shooter (FPS), Fighting, and Sports games. LoL falls within the Multiplayer Online Battle Arena (MOBA) genre. Thus, one may argue the relevant market in this case is e-sports competitions in the MOBA market. One way to test this market definition would be examining the ability of e-sports players to move from one e-sport to another.

Unfortunately, there has not been a complete study on the maneuverability of e-sport professionals between games of the same genre or of a different genre. As a result, it is difficult to have a complete view on the issue. Nevertheless, while there have been cases where certain players from e-sports of a different genre were able to move to LoL successfully (Ggoong [e-sports players are known by their own made up player names]) and others who have moved from LoL to another e-sport (Gesture, Bischu), there have been others who have attempted such moves without success (Destiny). On the other hand, when examining ‘traditional’ sports there are also many examples of athletes who have moved from one sport to another. For example, Primož Roglič was a high-level ski jumper, and even won the Junior Ski World Championship in this discipline, who then moved into professional road cycling and most recently came third in the Giro d’Italia. Ski jumping and road cycling arguably have very little in common, and it would be highly doubtful that the Commission or the CJEU would include both in the same market. Such an extreme example demonstrates that focusing on the maneuverability of e-sports athletes between e-sports may not always be the best way to define an e-sport market, and perhaps a more suitable approach would be to examine the specific features of the e-sport.

In this sense, it should be borne in mind that e-sports in the same genre, while sharing many basic characteristics and many of the fine motor skills, still diverge in terms of gameplay and strategy. If this were not the case, a professional LoL player could become a professional DOTA 2 (another MOBA e-sport) player without any extra effort. In reality, to make a transition, the professional LoL player would have to learn the intricacies and nuances of DOTA 2 compared to LoL, e.g. the champions and their builds, the pace of play, meta (the best strategies to win the game) etc. All of these differences support the argument that perhaps defining the product or service market in this case to MOBA e-sport competitions may be too broad, and it could be more appropriate to narrow the definition to LoL e-sport competitions.

Lastly, the geographic market is much more straightforward to define since the LEC Regulations define the EU Competitive Region in its 2019 Season Official Rules.[12] Therefore, the relevant geographic market would most likely be the EU Competitive Region.

4.3.Does LEC (and its participating organizations) have a dominant position in this market?

The Commission provides the most relevant criteria to ascertain whether an undertaking or undertakings hold a dominant position on the relevant market in its Guidance on enforcement of Article 82 of the EC Treaty (now Article 102 TFEU). Pertinent benchmarks include the “position of the dominant undertaking and its competitors”, “expansion and entry” of actual or future competitors, and the “bargaining strength of the undertaking’s customers” (countervailing buyer power). Usually, market shares are used to give a preliminary indication whether an undertaking occupies a dominant position in the market. The minimum threshold market share for which an undertaking or undertakings may be found to hold a dominant position is around 40-50%.[13]

If the relevant market was defined as the e-sport competitions in the MOBA market in the EU Competitive Region, one would have to examine competitive LoL in comparison to other e-sport competitions in the MOBA genre in Europe. For the purposes of this blog, there is rather limited information on the market share of LoL competitions in comparison to other MOBA e-sports in Europe. However, to at least give an idea of the size and dominance of LoL in the general MOBA market, LoL was projected to have an estimated 66% market share in 2016. When one compares this share to the second place, DOTA 2 with 14 %, it is evident that LoL generally holds a powerful position in the MOBA market and this most likely extends to its e-sports competitions.

In contrast, if the relevant market is narrowed to LoL e-sport competitions in the EU Competitive Region only, there would be an even higher chance of the LEC and its participant organizations being found to hold a dominant position. It could be argued that the European Masters (although Riot Games is a co-organizer) and the LoL regional leagues could be seen as ‘competitors’. Once more, direct information on market shares is scant. However, if one observes the viewership numbers of the LEC versus the European Masters, the LEC completely dwarfs the European Masters. The LEC in its 2019 Spring Split had a peak viewership of over 475,000 viewers and an average concurrent viewership of over 200,000 viewers. By comparison, the European Masters Spring 2019 competition had a peak viewership of just over 60,000 viewers and an average concurrent viewership of 32,000 viewers. From these numbers, it is evident that the LEC is overwhelmingly more popular and as a corollary, it may indicate that the LEC’s market share is likely to also reflect this.

5.     Does LEC abuse its Dominant Position?

5.1.Is the dominant position being abused and can it be justified (sporting exceptions)?

The finding of a dominant position is not enough to constitute a breach of EU competition law. Article 102 TFEU also requires that the dominant undertaking or undertakings abuse its dominant position, and it allows the dominant undertaking(s) to demonstrate how the relevant measures may be justified and proportionate. Within the sport context, the sport governing body must explain how the conduct which restricts competition pursues a legitimate objective and the anti-competitive effects must be “inherent in the pursuit of those objectives … and are proportionate to them”.[14]  There are a variety of ways an undertaking may abuse its dominant position, but in the present case, the LEC and its participant organizations agreement to seal the LEC and the LoL World Championship from any other European competitors would most likely fall under a non-price based exclusionary abuse. More specifically, exclusionary conduct must constitute ‘anti-competitive foreclosure’ which according to the Commission’s Guidance Paper is “a situation where effective access of actual or potential competitors to supplies or markets is hampered or eliminated as a result of the conduct of the dominant undertaking whereby the dominant undertaking is likely to be in a position to profitably increase prices to the detriment of consumers” (emphasis added).[15] 

The foreclosure requirement in this case is quite evidently satisfied since the LEC and its participant organizations have effectively excluded other organizations in Europe from the highest European competition of LoL and as a result, the LoL World Championship. Actually assessing whether there has been an increase in price to the detriment of consumers is not necessary, and the CJEU has ruled that “Article 102 TFEU must be interpreted as referring not only to practices which may cause damage to consumers directly, but also to those which are detrimental to them through their impact on competition”.[16] Moreover, a dominant undertaking “has a special responsibility not to allow its conduct to impair genuine undistorted competition in the internal market” and “[Article 102 TFEU] is aimed not only at the practices which may cause prejudice to consumers directly, but also at those which are detrimental to them through their impact on the competition structure”.[17] Therefore, it is not necessary to show direct harm to consumers, but that the foreclosure effects damage competition to a sufficient degree to their disadvantage.

As discussed earlier, the former promotion and relegation system helped promote new talent and organizations that were able to develop new fanbases, giving the opportunity for the European LoL viewers to get behind up and coming organizations. By stifling the prospects of new organizations from emerging in the LEC or the Worlds stage, market development may be hindered in contravention with Article 102 (b) TFEU at the European LoL e-sport’s expense.

Nonetheless, the LEC hopes that the closed structure “provides teams with more security to make longer investments that will strengthen and support pros, and provide better experiences for fan (sic)”, to “unlock revenue sharing” and “to focus on shaping the long-term future”. Basically, the LEC and its members seek greater financial security for themselves in order to invest more in its players and fans. The question is then whether the restrictions of competition resulting from the closed league described above are inherent to the pursuit of the aforementioned objectives.[18] While “the ensuring of financial stability of sport clubs/teams” could be a legitimate objective,[19] it is possible to envisage less restrictive means to achieve financial stability without completely excluding other European organizations from competing for the final LEC title and the LoL World Championship. For example, perhaps the LEC play-offs could give the opportunity for teams number 5 and 6 from the regular season to first face off against the top two teams of the European Masters Tournament.[20] A similar play-in format could easily be introduced for the LoL World Championships. Despite these changes, new organizations would still be precluded from joining the LEC. Perhaps this would require the LEC to come up with new creative structures that allow new organizations to join the LEC after having proven their worth. An example of such a system can be found in the top European basketball competition, EuroLeague, which issues different license/partner tiers for its participating clubs in order to provide better financial security for itself and its participants but still provides the possibility for a better performing national team to participate in the EuroLeague.[21] Based on my analysis, it is probable that the anti-competitive effects of a completely closed league will not be found to be entirely ‘inherent’ in the pursuit of financial stability.

6.     Conclusion

Taken altogether, the issue with EU competition law does not solely materialize because the LEC aims to provide greater financial stability for itself and its partners. Instead, the problems arise when there are no or very limited avenues for new competitors, in this case European e-sport organizations and their cyberathletes, to progress to the highest levels of competitive LoL in Europe. The closed league structure of the LEC precludes any outside organizations from playing in the LEC Playoffs and Finals, and as a result, they also may never participate in the LoL World Championship. On the other hand, it is understandable that the LEC seeks to create further financial stability for itself, the organizations and ultimately the cyberathletes. However, this should not come at the detriment of new competitors who could help elevate the level of competition in the LEC.

By extending this analysis to the wider sports world, it would be advisable for sports governing bodies who wish to create a more closed competitive league to pay close attention to the anti-competitive effects such restructuring could produce. Moreover, these effects would have to be proportionate and in the sporting context, “inherent in the pursuit of those objectives”.[22] All things considered, it does seem rather difficult to reconcile a completely closed league, as the one found in the LEC, with EU competition law.

[1] Stephen Weatherill, Principles and Practice in EU Sports Law (1st edn, Oxford University Press 2017) 282-283.

[2] See my previous blog for an analysis of whether LoL and the LEC could be a sport.

[3] Weatherill (n 1) 283.

[4] Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European Communities [2006] ECR I-06991 para. 27; White Paper on Sport, COM (2007) 391, 11 July 2007, 13.

[5] White Paper on Sport ibid.

[6] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 57.

[7] Cases IV/33.384 and IV/33.378 FIFA-distribution of package tours during the 1990 World Cup [1992] European Commission, OJ L326/31; Meca-Medina (n 4); Case C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio [2008] ECR I-04863.

[8] MOTOE (n 7) para 23.

[9] See for example: Fnatic (Private limited company), G2 Esports (GmbH) and Origen Esports (ApS).

[10] MOTOE (n 7) para 33.

[11] Cem Abanazir, ‘E-sport and the EU: the view from the English Bridge Union’ (2019) International Sports Law Journal 102.

[12] The LEC 2019 Season Official Rules Glossary defines the EU Competitive Region as: “Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kosovo, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom (UK), Vatican City (Holy See)”.

[13] Alison Jones and Brenda Sufrin, EU Competition Law: Text, Cases, and Materials (6^th edn, Oxford University Press 2016) 325.

[14] Meca-Medina (n 4) para 42; also see Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings [2009] OJ C45/02 para 28.

[15] Guidance on the Commission’s enforcement priorities in applying Article 82 (n 14) para 19.

[16] Case C-52/09 Konkurrensverket v TeliaSonera Sverige AB [2011] ECR I-00527 para 24.

[17] ibid; Case C-95/04 British Airways plc v Commission of the European Communities [2007] ECR I-02331 para 106.

[18] Meca-Medina (n 4) para 42; Commission Staff Working Document - The EU and Sport: Background and Context - Accompanying document to the White Paper on Sport (2007) COM 391 at 2.1.5.

[19] White Paper on Sport (n 4) 68.

[20] See here for the current format of the 2019 LEC Playoffs.

[21] See Chapter II and III of the EuroLeague Bylaws.

[22] Meca-Medina (n 4) para 42.