Those judgments are expected to have a major impact on the regulatory landscape surrounding professional sports in the EU. Subsequently, this article ends with a few key takeaways. The ISU has set out a set of rules including, inter alia, so-called prior authorisation rules, arbitration rules and eligibility rules. The prior authorisation rules state that the organisation of an international skating competition is subject to prior authorisation by the ISU.
Further, the prior authorisation rules set out a series of requirements e. The athletes may appeal such a decision imposing a lifetime ban before the CAS. However, the specific characteristics of sports like the specific characteristics of any sector may be relevant when assessing whether a certain conduct infringes Article TFEU, e.
Only certain types of conduct that reveal a sufficient degree of harm to competition, e. In this regard, the CJEU stresses the concept of equality of opportunity and concerns about undistorted competition due to a conflict of interest. According to the CJEU, a conflict of interest arises when an undertaking exercising a given economic activity has the de jure or de facto power to determine which other undertakings are also authorised to engage in that activity and the conditions of their market access para It is important to point out that, unlike the precedents cited by the CJEU e.
The CJEU then follows a clear line regarding the assessment of the prior authorisation rules and eligibility rules. While sports governing bodies are in principle allowed to adopt, apply and ensure compliance with rules relating to the organisation of the sporting discipline concerned, this regulatory power enables them to prevent market access of potentially competing undertakings paras , According to the CJEU, there is a need for previously enacted and accessible transparent, clear and precise substantive criteria circumscribing that regulatory power para These criteria must ensure that the regulatory power is exercised without discrimination and that sanctions are objective and proportionate para The CJEU generally expects non-discriminatory rules to subject 3 rd party competitions to similar requirements as apply to 1 st party competitions competitions by the decision-making entity, e.
In addition to such substantive criteria, the regulatory power must be subject to transparent and non-discriminatory procedural rules para The CJEU held that the prior authorisation rules and eligibility rules allow the ISU, inter alia, to exclude any even equally efficient competing undertaking from the market for organising skating competitions para At least, the rules restrict the creation and marketing of alternative and new competitions para The rules deprive athletes of the opportunity to participate in alternative or new competitions as well as spectators of the opportunity to attend or watch alternative or new competitions para Therefore, the rules conferring the ISU to authorise, control and set conditions of access to the relevant market and to determine both the degree and conditions of competition para Therefore, the prior authorisation rules and eligibility rules restrict competition by their object.
