On 15 January I had the pleasure of moderating the 138th GCLC Lunch Talk in Brussels, where we discussed the recent judgements of the Court of Justice of the EU in European Superleague (C-333/21), International Skating Union (C-124/21 P) and Royal Antwerp (C-680/21). 

Here are my key takeaways from the thoughtful discussion I had with Gero Meessen (European Commission) and Ben Van Rompuy (Leiden University).  

• In direct contrast to AG Rantos’ Opinion, the CJEU disregarded the so-called “regulatory ancillary restraints doctrine” (i.e., Wouters, Meca-Medina) for restrictions by object or per se abuses. This is very significant, as the CJEU reminded that the fact that certain conduct pursued a legitimate objective is not always enough to bring such conduct outside the application of EU competition rules. Consequently, rules on pre-authorisation of third-party events can restrict competition by object if they are not subjected to restrictions, obligations and review. 
   
• In practical terms, this is expected to be a problematic move, as it requires a definitive classification of the nature of the restriction of competition at the outset of the analysis. Besides, restrictions by object can only be exempt under Article 101(3) TFEU which seems ill-equipped to deal with social and solidarity functions pursued by sporting objectives.
   
• Sports governance must be scrupulous. The judgments confirm the ability of sports governing bodies to adopt rules with a view to authorising sporting events of third-party organisers and to regulate participation by their members in these events. However, because a sports governing body in a dominant position has the power to determine the conditions in which potentially competing undertakings may access the market, that power must be subject to transparent, objective, non-discriminatory and proportionate criteria. The devil will be in the details as to how the rules of sports governing bodies are designed and applied. 
   
• Is CAS compulsory arbitration still valid? The CJEU acknowledged that, although disputes can be submitted to an arbitration body with limited judicial review, sports associations cannot limit the rights and freedoms conferred on individuals by EU law. Therefore, prior authorisation and eligibility rules must be subject to effective judicial review, which includes the court that reviews awards made by an arbitration body having the right to apply EU law in full and being entitled to refer questions to the CJEU. 

If you would like to know more about the far-reaching implications of these judgements for both antitrust and sports law, read this article on the future governance of sports and competition law prepared by Bird & Bird’s Competition & EU Law team. 

The College of Europe's Global Competition Law Centre (GCLC) organises monthly lunch talks in Brussels on current topics of competition law and economics. The aim of these events is to provide a discussion platform for private practitioners and competition officials.

If you have questions related to competition/antitrust law and sports, please contact Jose Rivas.