Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Operación Puerto Strikes Back!

Forget the European Championship currently held in France or the upcoming Olympic Games in Rio. Doping scandals are making the headlines more than ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of the controversial ‘meldonium’, to the seemingly never-ending doping scandals in athletics. As if this was not enough, a new chapter was added on 14 June to one of the most infamous and obscure doping sagas in history: the Operación Puerto.

The special criminal appeal chamber,  the Audiencia Provincial, has held that the more than 200 blood bags of professional athletes that have been at the center of the investigations since 2006 can be delivered to the relevant sporting authorities, such as the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). In other words, there is now a good chance that the identities of the involved athletes might eventually be revealed.

Source: http://www.telegraph.co.uk/sport/othersports/cycling/9834122/Operation-Puerto-doctor-Eufemiano-Fuentes-treated-tennis-players-athletes-footballers-and-a-boxer.html

This case note will analyze the court’s ruling and summarize its most important findings. Given the amount of time passed since the scandal first came to light (2004), the blog will commence with a short background summary of the relevant facts. More...

FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München. By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 3 June 2016, the Landgericht München (“Munich Regional Court”) ordered temporary injunctions against the International Basketball Federation (“FIBA”) and FIBA Europe, prohibiting them from sanctioning clubs who want to participate in competitions organized by Euroleague Commercial Assets (“ECA”). The reasoning of the Court is based on breaches of German and EU competition law provisions. FIBA and FIBA Europe are, according to the judge, abusing their dominant position by excluding or threatening to exclude national teams from their international competitions because of the participation of their clubs in the Euroleague. This decision is the first judicial step taken in the ongoing legal battle between FIBA and ECA over the organization of European basketball competitions.

This judgment raises several interesting points with regard to how the national judge deals with the alleged abuse of a dominant position by European and international federations. A few questions arise regarding the competence of the Munich Regional Court that may be interesting to first look at in the wake of an appeal before examining the substance of the case. More...

The Müller case: Revisiting the compatibility of fixed term contracts in football with EU Law. By Kester Mekenkamp

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre.

On 17 February 2016, the Landesarbeitsgericht Rheinland-Pfalz delivered its highly anticipated decision in the appeal proceedings between German goalkeeper Heinz Müller and his former employer, German Bundesliga club Mainz 05.[1] The main legal debate revolved around the question (in general terms) whether the use of a fixed term contract in professional football is compatible with German and EU law. 

In first instance (see our earlier blog posts, here and here), the Arbeitsgericht Mainz had ruled that the ‘objective reasons’ provided in Section 14 (1) of the German Part-time and Fixed-term Employment Act (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, “TzBfG”), the national law implementing EU Directive 1999/70/EC on fixed-term work, were not applicable to the contract between Müller and Mainz 05 and therefore could not justify the definite nature of that contract.[2] In its assessment the court devoted special attention to the objective reason relating to the nature of the work, declining justifications based thereupon.[3] Tension rose and the verdict was soon labelled to be able to have Bosman-like implications, if held up by higher courts.[4] More...

The BGH’s Pechstein Decision: A Surrealist Ruling



The decision of the Bundesgerichtshof (BGH), the Highest Civil Court in Germany, in the Pechstein case was eagerly awaited. At the hearing in March, the Court decided it would pronounce itself on 7 June, and so it did. Let’s cut things short: it is a striking victory for the Court of Arbitration for Sport (CAS) and a bitter (provisory?) ending for Claudia Pechstein. The BGH’s press release is abundantly clear that the German judges endorsed the CAS uncritically on the two main legal questions: validity of forced CAS arbitration and the independence of the CAS. The CAS and ISU are surely right to rejoice and celebrate the ruling in their respective press releases that quickly ensued (here and here). At first glance, this ruling will be comforting the CAS’ jurisdiction for years to come. Claudia Pechstein’s dire financial fate - she faces up to 300 000€ in legal fees – will serve as a powerful repellent for any athlete willing to challenge the CAS.More...



The EU State aid and Sport Saga: Hungary revisited? (Part 2)

On 18 May 2016, the day the first part of this blog was published, the Commission said in response to the Hungarian MEP Péter Niedermüller’s question, that it had “not specifically monitored the tax relief (…) but would consider doing so. The Commission cannot prejudge the steps that it might take following such monitoring. However, the Commission thanks (Niedermüller) for drawing its attention to the report of Transparency International.”

With the actual implementation in Hungary appearing to deviate from the original objectives and conditions of the aid scheme, as discussed in part 1 of this blog, a possible monitoring exercise by the Commission of the Hungarian tax benefit scheme seems appropriate. The question remains, however, whether the Commission follows up on the intent of monitoring, or whether the intent should be regarded as empty words. This second part of the blog will outline the rules on reviewing and monitoring (existing) aid, both substantively and procedurally. It will determine, inter alia, whether the State aid rules impose an obligation upon the Commission to act and, if so, in what way. More...

The Rise and Fall of FC Twente

Yesterday, 18 May 2016, the licensing committee of the Dutch football federation (KNVB) announced its decision to sanction FC Twente with relegation to the Netherland’s second (and lowest) professional league. The press release also included a link to a document outlining the reasons underlying the decision. For those following the saga surrounding Dutch football club FC Twente, an unconditional sanction by the licensing committee appeared to be only a matter of time. Yet, it is the sanction itself, as well as its reasoning, that will be the primary focus of this short blog.More...

The EU State aid and Sport Saga: Hungary’s tax benefit scheme revisited? (Part 1)

The tax benefit scheme in the Hungarian sport sector decision of 9 November 2011 marked a turning point as regards the Commission’s decisional practice in the field of State aid and sport. Between this date and early 2014, the Commission reached a total of ten decisions on State aid to sport infrastructure and opened four formal investigations into alleged State aid to professional football clubs like Real Madrid and Valencia CF.[1] As a result of the experience gained from the decision making, it was decided to include a Section on State aid to sport infrastructure in the 2014 General Block Exemption Regulation. Moreover, many people, including myself, held that Commission scrutiny in this sector would serve to achieve better accountability and transparency in sport governance.[2]

Yet, a recent report by Transparency International (TI), published in October 2015, raises questions about the efficiency of State aid enforcement in the sport sector. The report analyzes the results and effects of the Hungarian tax benefit scheme and concludes that:

“(T)he sports financing system suffers from transparency issues and corruption risks. (…) The lack of transparency poses a serious risk of collusion between politics and business which leads to opaque lobbying. This might be a reason for the disproportionateness found in the distribution of the subsidies, which is most apparent in the case of (football) and (the football club) Felcsút.”[3]

In other words, according to TI, selective economic advantages from public resources are being granted to professional football clubs, irrespective of the tax benefit scheme greenlighted by the Commission or, in fact, because of the tax benefit scheme. More...

International and European Sports Law – Monthly Report – April 2016. By Marine Montejo

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.  


The Headlines

This month saw the conflict between FIBA Europe and the Euroleague (more precisely its private club-supported organizing body, Euroleague Commercial Assets or ‘ECA’) becoming further entrenched. This dispute commenced with FIBA creating a rival Basketball Champions League, starting from the 2016-2017 season with the hope to reinstate their hold over the organization of European championships. The ECA, a private body that oversees the Euroleague and Eurocup, not only decided to maintain its competitions but also announced it would reduce them to a closed, franchise-based league following a joint-venture with IMG. In retaliation, FIBA Europe suspended fourteen federations of its competition (with the support of FIBA) due to their support for the Euroleague project.More...


The boundaries of the “premium sports rights” category and its competition law implications. By Marine Montejo

Editor’s note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier league), the European Commission insisted that premium media rights must be sold through a non-discriminatory and transparent tender procedure, in several packages and for a limited period of time in order to reduce foreclosure effects in the downstream market. These remedies ensure that broadcasters are able to compete for rights that carry high audiences and, for pay TV, a stable number of subscriptions. In line with these precedents, national competition authorities have tried to ensure compliance with remedy packages. The tipping point here appears to be the premium qualification of sport rights on the upstream market of commercialization of sport TV rights.

This begs the question: which sport TV rights must be considered premium? More...

Guest Blog - Mixed Martial Arts (MMA): Legal Issues by Laura Donnellan

Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.


Introduction

On Tuesday the 12th of April, João Carvalho passed away in the Beaumont Hospital after sustaining serious injuries from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The fighter was knocked out in the third round of a welterweight fight against Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises a number of interesting legal issues. This opinion piece will discuss the possible civil and criminal liability that may result from the untimely death of the Portuguese fighter.

It is important to note at the outset that MMA has few rules and permits wrestling holds, punching, marital arts throws and kicking. MMA appears to have little regulation and a lack of universally accepted, standardised rules. There is no international federation or governing body that regulates MMA. It is largely self-regulated. MMA is not recognised under the sports and governing bodies listed by Sport Ireland, the statutory body established by the Sport Ireland Act 2015 which replaced the Irish Sports Council. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered.

The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. Currently there are no minimum requirements when it comes to medical personnel; nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17 MMA promoters in Ireland requesting that they implement safety precautions in line with those used by other sports including boxing and rugby.

Despite this lack of regulation, this does not exempt MMA from legal liability as the discussion below demonstrates.More...



Asser International Sports Law Blog | Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Sport and EU Competition Law: uncharted territories - (I) The Swedish Bodybuilding case. By Ben Van Rompuy

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

Comments (2) -

  • penerjemah tersumpah

    12/5/2014 2:34:42 AM |

    or more specific project names that would be searchable? Sounds like it would be worth writing up.

  • Garret Radle

    6/24/2015 9:31:34 PM |

    but you sound like you know what you�re talking about! Thanks

Comments are closed