By Peter Alexiadis and Pablo Figueroa
The recent announcement by the European Commission (“the Commission”) that it is actively looking into the compatibility of the disciplinary measures exacted by the International Skating Union (“ISU”) with competition rules reminds us yet again of that there are few elements of modern life that are exempt from the scope of EU competition rules. The approach being undertaken by the Commission in the ISU case constitutes a logical extension of the recent interest shown by National Competition Authorities within the EU on the compatibility of governance rules of sports organisations with national and EU competition law.
I. The Facts
Based in Lausanne, Switzerland, the ISU is the only body recognised by the International Olympic Committee (“IOC”) with the responsibility of administering the sports of ice figure skating and speed skating. In turn, its members are the various national ice-skating associations.
The Commission had initiated proceedings in relation to ISU’s eligibility rules in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert (gold medal winner at the 2010 Winter Olympics) and Niels Kerstholt.
After an extremely short formal investigation of less than a year, the Commission has announced that the rules imposed by the ISU might be in contravention of the EU prohibition on anti-competitive agreements under Article 101 TFEU.
More precisely, the Commission has informed the ISU of its preliminary view that its rules, under which athletes face severe penalties if they participate in speed skating events which have not been authorised by ISU, might infringe EU competition rules. Competition Commissioner Margrethe Vestager has indicated that the Commission’s concerns stem from the belief “that the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU’s control over speed skating. The ISU now has the opportunity to reply to our concerns”.
These accusations are outlined in a Statement of Objections addressed to the ISU, a document which informs the parties concerned of the competition allegations raised against them and which foresees that investigated entities can reply in writing and also request an Oral Hearing. While the issuance of a Statement of Objections does not prejudge the outcome of the investigation, it is relatively rare that the Commission backs away from its claims.
According to a blog post by the Complainants’ counsel, which includes a twitter exchange between a skate complainant and Commissioner Vestager, the complaint is based on the ISU’s intention to declare skaters as “persona non grata” where they participate in events organised by Icederby International, a private entity. Moreover, the Complainants contended that the ISU Eligibility Rules rendered ineligible a person skating or officiating in an event not endorsed by ISU and/or its Members (i.e., the individual national associations) from participating in ISU activities and competitions. According to the Complainant’s counsel, this sanction apparently applies not only to the skaters, but also extends to coaches, trainers, doctors, team attendants, team officials, judges, referees and even volunteers.
By way of rebuttal, the ISU noted in a recent press release that independent organisers can establish international tournaments on the ISU calendar, and that Icederby, an organisation which initiated the complaint that triggered the Commission’s investigation via the two speed skaters in question, recently received ISU authorisation to co-run an event.
The facts of the ISU case are not entirely dissimilar to those of Fédération Internationale de l’Automobile (“FIA”) in the late 1990s. In that case, the Commission closed its investigation, apparently after the FIA agreed to refrain from using its regulatory powers in relation to international motor racing in a manner that would mean that competing events were forced out of the market. Continue reading