Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.
On 3 June 2016, the Landgericht München (“Munich
Regional Court”) ordered temporary injunctions against the International Basketball Federation (“FIBA”)
and FIBA Europe, prohibiting them from sanctioning clubs who want to
participate in competitions organized by Euroleague Commercial Assets (“ECA”).
The reasoning of the Court is based on breaches of German and EU competition
law provisions. FIBA and FIBA Europe are, according to the judge, abusing their
dominant position by excluding or threatening to exclude national teams from
their international competitions because of the participation of their clubs in
the Euroleague. This decision is the first judicial step taken in the ongoing
legal battle between FIBA and ECA over the organization of European basketball competitions.
This judgment raises several interesting points with
regard to how the national judge deals with the alleged abuse of a dominant
position by European and international federations. A few questions arise
regarding the competence of the Munich Regional Court that may be interesting
to first look at in the wake of an appeal before examining the substance of the
On 18 May 2016, the day the first part
of this blog was published, the Commission said in response
to the Hungarian MEP Péter Niedermüller’s question, that it
had “not specifically monitored the tax relief (…) but would consider doing so.
The Commission cannot prejudge the steps that it might take following such
monitoring. However, the Commission thanks (Niedermüller) for drawing its
attention to the report of Transparency International.”
With the actual implementation in Hungary appearing to
deviate from the original objectives and conditions of the aid scheme, as discussed
in part 1 of this blog, a possible monitoring exercise by the Commission of the
Hungarian tax benefit scheme seems appropriate. The question remains, however,
whether the Commission follows up on the intent of monitoring, or whether the
intent should be regarded as empty words. This second part of the blog will outline
the rules on reviewing and monitoring (existing) aid, both substantively and
procedurally. It will determine,
alia, whether the State aid rules impose an obligation upon the Commission
to act and, if so, in what way. More...
benefit scheme in the Hungarian sport sector decision of 9 November 2011 marked a turning point as
regards the Commission’s decisional practice in the field of State aid and
sport. Between this date and early 2014, the Commission reached a total of ten decisions
on State aid to sport infrastructure and opened four formal investigations into
alleged State aid to professional football clubs like Real Madrid
and Valencia CF.
As a result of the experience gained from the decision making, it was decided
to include a Section on State aid to sport infrastructure in the 2014 General Block Exemption Regulation. Moreover, many people, including myself, held that
Commission scrutiny in this sector would serve to achieve better accountability
and transparency in sport governance.
Yet, a recent report by
Transparency International (TI), published in October 2015, raises questions about the efficiency of State aid enforcement in
the sport sector. The report analyzes the results and effects of the Hungarian tax benefit scheme and
financing system suffers from transparency issues and corruption risks. (…) The
lack of transparency poses a serious risk of collusion between politics and
business which leads to opaque lobbying. This might be a reason for the
disproportionateness found in the distribution of the subsidies, which is most
apparent in the case of (football) and (the football club) Felcsút.”
In other words, according to TI, selective economic
advantages from public resources are being granted to professional football
clubs, irrespective of the tax benefit scheme greenlighted by the Commission
or, in fact, because of the tax
benefit scheme. More...
Editor’s note: This report
compiles all relevant news, events and materials on International and European
Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited
to complete this survey via the comments section below, feel free to add links
to important cases, documents and articles we might have overlooked.
This month saw the conflict between FIBA Europe
and the Euroleague (more precisely its private club-supported organizing body,
Euroleague Commercial Assets or ‘ECA’) becoming further entrenched. This
dispute commenced with FIBA creating a rival Basketball Champions League, starting from the 2016-2017 season with the hope to reinstate their
hold over the organization of European championships. The ECA, a private body
that oversees the Euroleague and Eurocup, not only decided to maintain its
competitions but also announced it would reduce them to a closed, franchise-based league following a
joint-venture with IMG. In retaliation, FIBA Europe suspended fourteen
federations of its competition (with the support of FIBA) due to their support for the Euroleague project.More...
Editor’s note: Marine Montejo
is a graduate from the College of Europe in Bruges and is currently an Intern
at the ASSER International Sports Law Centre.
In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier
league), the European Commission insisted that premium media
rights must be sold through a non-discriminatory and transparent tender
procedure, in several packages and for a limited period of time in order to
reduce foreclosure effects in the downstream market. These remedies ensure that
broadcasters are able to compete for rights that carry high audiences and, for
pay TV, a stable number of subscriptions. In line with these precedents, national
competition authorities have tried to ensure compliance with remedy packages.
The tipping point here appears to be the premium qualification of sport rights
on the upstream market of commercialization of sport TV rights.
This begs the question: which sport TV rights must be
considered premium? More...
last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal
crusade against FIFA’s TPO ban. It has lodged a competition law complaint with
the EU Commission and started court proceedings in France and Belgium. In a first
decision on Doyen’s request for provisory measures, the Brussels Court of First
Instance rejected the demands raised by Doyen and already refused to send a
preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing,
decided to appeal this decision to the Brussels Appeal Court, which rendered
its final ruling on the question on 10 March 2016. The
decision (on file with us) is rather unspectacular and in line with the first
instance judgment. This blog post will rehash the three interesting aspects of
The jurisdiction of the Belgian courts
The admissibility of Doyen’s action
The conditions for awarding provisory measures More...
Editor’s note: This report compiles all relevant news, events and materials on
International and European Sports Law based on the daily coverage provided on
our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section
below, feel free to add links to important cases, documents and articles we
might have overlooked.
The eagerly awaited FIFA Presidential elections of 26 February provided
for a “new face” at the pinnacle of international football for the first time
since 1998. One could argue whether Infantino is the man capable
of bringing about the reform FIFA so desperately needs or whether he is simply
a younger version of his predecessor Blatter. More...
FIFA’s Third-Party Ownership (TPO)
ban entered into force on the 1 May 2015.
Since then, an academic and practitioner’s debate is raging over its compatibility with EU law,
and in particular the EU Free Movement rights and competition rules.
The European Commission, national
courts (and probably in the end the Court of Justice of the EU) and the Court
of Arbitration for Sport (CAS) will soon have to propose their interpretations
of the impact of EU law on FIFA’s TPO ban. Advised by the world-famous Bosman lawyer, Jean-Louis Dupont, Doyen
has decided to wage through a proxy (the Belgian club FC Seraing) a legal war
against the ban. The first skirmishes have already taken place in front of the
Brussels Court of first instance, which denied in July Seraing’s request for provisional
measures. For its part, FIFA has already sanctioned the club for closing a TPO deal
with Doyen, thus opening the way to an ultimate appeal to the CAS. In parallel,
the Spanish and Portuguese leagues have lodged a complaint with the European
Commission arguing that the FIFA ban is contrary to EU competition law. One
academic has already published an assessment of the compatibility of the ban
with EU law, and many practitioners have offered their take (see here and here for example). It is undeniable that the FIFA
ban is per se restrictive of the
economic freedoms of investors and can easily be constructed as a restriction
on free competition. Yet, the key and core question under an EU law analysis,
is not whether the ban is restrictive (any regulation inherently is), but
whether it is proportionate, in other words justified. More...
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.
The decision on appeal in the case
of O’Bannon v. NCAA seems,
at first sight, to deliver answers right on time regarding the unpaid use of
names, images and likenesses (NILs) of amateur college athletes, which has been
an ongoing debate in the US after last year’s district court decision that
amateur players in the college games deserve to receive compensation for their
The ongoing struggle for compensation in exchange for NILs used in TV
broadcasts and video games in the US has reached a turning point and many have
waited impatiently for the final say of the Court of Appeal for the 9th
circuit. The court’s ruling on appeal for the 9th circuit, however,
raises more legitimate concerns for amateur sports in general than it offers
consolation to unprofessional college sportsmen. While the appellate court
agreed with the district court that NCAA should provide scholarships amounting
to the full cost of college attendance to student athletes, the former rejected
deferred payment to students of up to 5,000 dollars for NILs rights. The
conclusions reached in the case relate to the central antitrust concerns raised
by NCAA, namely the preservation of consumer demand for amateur sports and how
these interests can be best protected under antitrust law. More...
In June 2014, two prominent Dutch speed skaters, Mark Tuitert
(Olympic Champion 1500m) and Niels Kerstholt
(World Champion short track), filed a competition law complaint against the
International Skating Union (ISU) with the European Commission.
European Commission announced that it has opened a
formal antitrust investigation into International Skating Union (ISU) rules
that permanently ban skaters from competitions such as the Winter Olympics and
the ISU World and European Championships if they take part in events not organised
or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will
investigate if such rules are being abused to enforce a monopoly over the
organisation of sporting events or otherwise restrict competition. Athletes can
only compete at the highest level for a limited number of years, so there must
be good reasons for preventing them to take part in events."
the case originates from legal advice provided by the ASSER International
Sports Law Centre, we thought it would be helpful to provide some
clarifications on the background of the case and the main legal issues at