SPORT AND COMPETITION LAW AT EU LEVEL

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SPORT AND
COMPETITION LAW
AT EU LEVEL
Lessius, December 2010
MICHELE COLUCCI
www.europa.eu
[email protected]
1
The European Model of Sport
The “Pyramid” model
2
Characteristics

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Promotion and relegation
Grassroots approach (starting from the clubs)
Stakeholders and their role (who does what)
3
EC TREATY
ART. 81 EC:
Are incompatible (and void )with the common
market all agreements between undertakings,
decisions by associations of undertakings and
concerted practices which may:
 affect trade between Member States
 have as their object or effect the prevention,
restriction or distortion of competition within
the common market
4
Exceptions

Agreements which contributes to improving:


the production or distribution of goods or to promoting
technical or economic progress, while allowing consumers a
fair share of the resulting benefit,
And which does not:
(a) impose on the undertakings concerned restrictions
which are not indispensable to the attainment of these
objectives;
(b) afford such undertakings the possibility of
eliminating competition in respect of a substantial part
of the products in questio
5
ABUSE OF DOMINANT
POSITION
ART. 82 EC:
Any abuse by one or more undertakings of a
dominant position within the common market
or in a substantial part of it shall be prohibited
as incompatible with the common market in so
far as it may affect trade between Member
States.

6
ABUSE OF DOMINANT
POSITION



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Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling
prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the
prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with
other trading parties, thereby placing them at a competitive
disadvantage;
(d) making the conclusion of contracts subject to acceptance by
the other parties of supplementary obligations which, by their
nature or according to commercial usage, have no connection
with the subject of such contracts.
7
Fields of application in Sport

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Transfer rules
Sale of tickets
Broadcasting rights
Monopoly of federations
Multi-ownership of clubs
8
Basic Principles of Community Law


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EC law applies to Sport in so far it constitutes
an economic activity (ECJ case law)
No Activities “purely” social, artistic or sporting
......
but then “MECA MEDICA” judgement of 18
July 2006...
Test of “Necessity”
Test of “Proportionality”
9
Applicability of EC competition law
to football




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Question:Are Sports federations (private entities)
associations of undertakings?
Undertaking under art. 81 is “every entity engages in an
economic activity, regardless of the legal status of the
entity and the way in which it is financed”
Nature, profit, and aims are irrelevant!
Sport industries: many services
Analysis of finacial resources, training of players, ...
10
Nature of Transfer regulations

Decision of an association of undertakings:
Regulations issued by the executive committee of
FIFA adopetd on the legal basis of the federation’s
statutes
 No importance if they are legally binding or mere
recommendations

11
THE RELEVANT MARKET


GEOGRAPHICAL Market: territory of all
associations
PRODUCT MARKET:
EXPLOITATION Market: where clubs and
association exploit their performance
 CONTEST MARKET: where the performance are
exploited (the Sporting contest)
 SUPPLY MARKET: where the clubs “sell” and
buy” players

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RESTRICTION OF
COMPETITION


AMOUNT OF TRANSFER PAYMENT
EFFECT ON THE MARKET:
Strong clubs remain strong
 Players less paid


NECESSITY OF THE TRANSFER
REGULATIONS:
Maintaining financial and competitive balance
 Compensation for cost of training


EFFECT ON TRADE BETWEEN MSs
13
THE ECJ CASE LAW
analysis and perspective
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BOSMAN
PIAU
MECA MEDINA
14
THE MECA MEDINA CASE


Compatibility of rules with the Community
rules on competition cannot be assessed in the
abstract.
Taking into account:
“the overall context” in which the decision of the
association of undertakings was taken or produces
its effects.
 Its objectives: measures inherent in the pursuit of
those objectives and proportionate to them.

15
THE NEW SCENARIO

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RETHINKING SPORT AT EU LEVEL?
NEW STRATEGIES AMONG
STAKEHOLDERS?
CO-OPERATION WITH THE EU
INSTITUTIONS?
CHANGE THE EU LEGISLATION IN THE
NAME OF AUTONOMY AND
SPECIFICITY OF SPORT?
16
CONCLUSIONS
ALL ROADS LEAD TO ROME
BUT FIRST ...
THEY GO THROUGH
BRUSSELS
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