Sport body's restrictions on athlete participation in non-affiliated events breach EU competition rules, says Commission

Out-Law News | 11 Dec 2017 | 2:29 pm | 2 min. read

The penalties an international sports body can impose on athletes' participation in non-affiliated events breach EU competition laws, the European Commission has said.

The Commission said the measures drawn up by the International Skating Union (ISU) are "disproportionately punitive and prevents the emergence of independent international speed skating competitions". The ISU is recognised by the International Olympic Committee (IOC) as the sole body responsible for administering the sports of figure skating and speed skating on ice. Its members are national ice skating associations.

Athletes face potential lifetime bans from "all major international speed skating events" if they participate in events not sanctioned by the ISU, according to the Commission.

"The ISU can impose these penalties at its own discretion, even if the independent competitions pose no risk to legitimate sports objectives, such as the protection of the integrity and proper conduct of sport, or the health and safety of athletes," the Commission said.

According to the Commission, the ISU's 'eligibility rules' "restrict competition and enable the ISU to pursue its own commercial interests to the detriment of athletes and organisers of competing events". They further "prevent independent organisers from putting together their own speed skating competitions because they are unable to attract top athletes", it said. As a result, the ISU's rules have "limited the development of alternative and innovative speed skating competitions, and deprived ice-skating fans from following other events", the Commission said.

The ISU was given 90 days from the 8 December to "stop its illegal conduct … and to refrain from any measure that has the same or an equivalent object or effect".

"In order to comply, the ISU can abolish or modify its eligibility rules so that they are based only on legitimate objectives (explicitly excluding the ISU's own economic interests) and that they are inherent and proportionate to achieve those objectives," the Commission said.

"In particular, the ISU should not impose or threaten to impose unjustified penalties on athletes who participate in competitions that pose no risk to legitimate sports objectives. If the ISU maintains its rules for the authorisation of third party events, they have to be based on objective, transparent and non-discriminatory criteria and not be intended simply to exclude competing independent event organisers," it said.

The case against the ISU was prompted by a complaint from Dutch speed skaters Mark Tuitert and Niels Kerstholt who argued that the rules set by the sports body were "unduly preventing athletes from exercising their profession".

EU competition commissioner Margrethe Vestager said that athletes "should have the chance to make the most of the years while they're at the top of their game".

"[Under the ISU's rules] skaters can be suspended for several years, or even banned for life from all major international competitions, including the Olympics and the European and World Championships," Vestager said. "That's a risk that a professional athlete can't afford to take. So in effect, those rules prevent skaters from taking part in competitions that aren't authorised by the ISU and its members."

"That can be costly for athletes, who lose the chance to compete – and an opportunity to better earn their living," she said.

The determination by the Commission that the ISU's rules breach competition rules should be noted by other sports governing bodies, competition law expert Angelique Bret of Pinsent Masons, the law firm behind, said.

"The Commission’s decision is based on principles established in a small number of cases, from the Bosman case in 1995 to Mecca Medina in 2006, that sporting rules may be excluded from the application of the competition law rules, provided that they pursue a legitimate objective, normally relating to the organisation and proper conduct of competitive sport," Bret said. "Any such rules must be limited to what is necessary and proportionate to ensure the proper conduct of competitive sport."

"This case is, however, an important application of the principles to restrictions on sportsmen and women from taking part in competing events, taking into account commercial objectives, with implications for all sports governing bodies," she said.