The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations
| Author | Ben Van Rompuy |
| Date | 01 April 2015 |
| Published date | 01 April 2015 |
| DOI | 10.1177/1023263X1502200203 |
| Subject Matter | Article |
22 MJ 2 (2015) 179
ARTICLES
THE ROLE OF EU COMPETITION LAW
IN TACKLING ABUSE OF REGULATORY
POWER BY SPORTS ASSOCIATIONS
B V R*
ABSTRACT
In his opinion in Bosman, Advocate General Lenz called atte ntion to the function of
EU competition law to control the private regulatory powe r of international sports
associations. e tr ue potential of EU competition law to protect athletes and other parties
against reg ulatory ove rreach by sports a ssociation s, howeve r, remains unde rexplored .
is article examines the prospect of an increased u se of EU competition law to challenge
restrictive rules or ab usive conduct and, consequently, to exer t in uence on the governance
structure and institutional features of s ports associations . First, it generally assesses the
extent to which the rule-making activ ity of sports associations relating to the organization
of sport satis es the requirements for the application of Articles101 and 102 TFEU. It will
highlight that the analytical framework gives su cient exibility to take into account the
speci c characteristic s of sport. Second, to practically illustrate the nature and function of
EU competition law enforcement, it analyses European and national decisional practice
regarding con icts of interest between the role of sports assoc iations as the regulator of
their sport and their commercial inte rests in the events that they promote and organize.
Keywords: con ict of interest; EU competit ion law; organizational sporti ng rules; private
regulatory power; sport
§1. IN T RODUC T IO N
e issue of the application of EU competition law to the sports sector rapidly gat hered
momentum in the m id-1990s. e interplay between two factors se cured this cha nge. First,
* Senior Researc her T.M.C Asser Instituut, t he Netherlands; Profe ssor of Competition Polic y and Media
Regulation , Vrije Universiteit Brussel, Bel gium.
Ben Van Rompuy
180 22 M J 2 (2015)
the growing commercia lization of professional sport, closely related to developments in
the European audiovisu al sector, broadened the extent to which EU competition law could
a ec t sports-related activitie s. Second, the landmark C ourt of Justice (CJEU) ruling i n
Bosman1 functioned as a wake-up ca ll for all sta keholders involved. e judgment and
the Opinion of Advocate General L enz, who applied the competition rules a longside the
free movement rules, mapped t he future co-existence bet ween EU (competition) law and
sport.2 e CJEU signi cantly curtai led the ‘sporting except ion’ that it had seemingly
established in it s 1970s case law.3 It famously stressed that the exception ‘cannot (…) be
relied upon to exclude the whole of sporting act ivity from the scope of the Treaty’.4
is had v ast and immediate implications for EU compet ition law enforcement. Prior
to Bosman, the European Commission had adopted only four forma l decisions in the eld
of sport, all pursu ant to Article101 TFEU (ex Article81 EC). e c ases solely concerned
revenue-generating activities connected with sport: two relating to the distribution of
sports goods,5 one relating to ticket distribution,6 and one relating to the joint acquisition
of broadcast ing rights.7 Between 1996 a nd 1999, an exponential increase in noti cations
and complaints prompted the Commission to open 60 sp orts-related antitrust cases.8
Afraid that t he exigencies of EU competition law would not pay due regard to the
distinct ive features of sport, the Europea n Council and the Eu ropean Parliament pressured
the Commission to develop a sector-speci c approach and provide ‘legal cer tainty’ to the
sports world. In a rst attempt to g ive direction as to the application of the competition
rules, the Commission sought to draw a dividi ng line between practices of sports
associations that fal l outside the competition rules (‘the sporti ng activity strict ly speaking,
which ful ls a social, integrating a nd cultural role that must be preser ved’) and economic
1 Case C-415/93 Union Royale Belge des S ociétés de Football A ssociation and other s v. Bosman and others,
EU:C:1995:463.
2 S. Weatherill, ‘B osman Changed Every thing: e Ris e of EC Spor ts Law’, in M. Maduro a nd L. Az oulai
(eds .), e Past and Future of EU Law: e Cl assics of EU Law Revis ited on the 50th Anniversary of the
Rome Treaty (Hart, 2010), p.480–487; S. Van den Bogaert, ‘Bosman: e Genesi s of European Sports
Law’, in M. Maduro an d L. Azoulai, e P ast an d Futur e of EU La w: e Classics o f EU Law Revisited on
the 50th Anniversar y of the Rome Treaty (Hart, 2010), p.488–498.
3 Case 36/74 Walrave and Koch v. Union Cycliste Intern ationale, EU:C:1974:140, para. 8; Cas e 13/76 Donà
v. Man tero, EU:C:1976:115, para. 14 (stressing that EU l aw does not a ect a pr actice of ‘purely sporting
interest’ that ‘ has nothing to do with econo mic activity’).
4 Case C-415/93 Union Royale Belge des S ociétés de Football A ssociation and other s v. Bosman and others,
para. 76.
5 Commission Decision 92/261/EEC of 18March 1992 (IV/32.290 – Newitt/Dunlop Slazenger
International a nd Others), [1992] OJ L 131/32; Commission Deci sion 94/987/EC of 21December 1994
(IV/34.590 – Tertorn and Ot hers), [1994] OJ L 378/45.
6 Commission Decision 92/521/EEC of 27October 1992 (IV/33.384 and IV/33.378 – Distribution of
package tours du ring the 1990 World Cup), [1992] OJ L 326/31.
7 Commission Decision 93/403/EEC of 11June 1993 (IV/32.150 – EBU/Eurovision System), [1993] OJ L
179/23.
8 J.-F. Pons, ‘Sport and Europe an Competit ion Policy’, address g iven at the Twenty-sixth A nnual
Conference on Internat ional Antitrus t Law & Policy, New York, 14–15October 1999.
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