Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – January 2016

Editor’s note: Our first innovation for the year 2016 will be a monthly report compiling 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 Headlines

The world of professional sport has been making headlines for the wrong reasons in January. Football’s governing body FIFA is in such a complete governance and corruption mess that one wonders whether a new President (chosen on 26 February[1]) will solve anything. More recently, however, it is the turn of the athletics governing body, IAAF, to undergo “the walk of shame”. On 14 January the WADA Independent Commission released its second report into doping in international athletics. Where the first report (released on 9 November 2015) primarily focussed on the widespread use of doping by Russian athletes, the second report demonstrated a much wider scope of corruption and manipulation, including illegal sponsorship deals, marketing agreements and bidding processes. Guardian sport correspondents Owen Gibson and Sean Ingle have written excellent pieces here and here

Incidentally, on that same 14 January, FIFA announced that it sanctioned Real Madrid and Atlético Madrid for breaching the FIFA Regulation on the international transfer of minors. Both clubs will not be allowed to register any new players for the next two transfer windows, i.e. summer 2016 and January 2017. The sanction is identical to the one FC Barcelona received by FIFA for its failure to comply with the FIFA Regulation on the international transfer of minors. Real Madrid and Atlético Madrid have appealed the sanction to the FIFA Appeal Committee. On 30 January, the appeals were granted suspensive effect by the chairman of the FIFA Appeal Committee until the Appeal Committee has taken and notified its decision on the merits of the appeals.

One can indeed say that January was not the best month for Spanish giants Real Madrid. In addition to the FIFA sanction, the club became a new victim of football’s own version of WikiLeaks namely “footballleaks”. The publication of the transfer agreement between Real Madrid and Tottenham Hotspur concerning Gareth Bale brought to light the actual transfer sum of the Welsh player. Real Madrid had always claimed that it paid a “mere” €91 million. Yet the leaked agreement shows that the club actually paid €101 million, thereby making Bale the most expensive player of all time. Further claims that this transfer agreement was financed by banking institutions previously bailed out by the EU can be read in Sam Wallace’s piece (The Telegraph) here. The leaked documents by “footballleaks” led to widespread outrage. Bale’s agent, Jonathan Barnett, stated that “(t)here should be an independent investigation because it’s outrageous. I think it is disgraceful that people can get hold of this stuff. It shows complete disregard for both clubs and the player”. FIFA, on the other hand, is backing “footballleaks”, stating that the leaks are useful and admitting that it now uses the site as an information source. Furthermore, it forms an important source of information necessary to understand the functioning of Third Party Ownership and whether FIFA’s ban of the practice can be justified. The Asser International Sports Law Blog has already covered the leaked Economic Rights of Players Agreements (ERPA’s) concerning FC Twente and Sporting Lisbon, but more analysis will follow. 

Meanwhile, on 23 January the European Parliament organised a debate on TPO and FIFA’s ban. The debate included some rather emotional calls by Doyen’s CEO Nélio Lucas and La Liga’s President Javier Tebas in defence of TPO. They empathically argued that a prohibition was in breach of EU competition Law. UEFA’s Julien Zylberstein, FIFA’s Omar Ongaro and FIFPro’s Jonas Baer-Hoffmann all defended the banning of the practice. The European Commission, who was not present at the debate, and is yet to decide whether it will launch a formal investigation

Last but not least, tennis fans around the world were shocked by reports of widespread betting related match-fixing. To the surprise of some, however, all of the players allegedly involved in match-fixing were allowed to continue playing by the Tennis Integrity Unit. On 24 January tennis officials announced that an Independent Review Panel will investigate the sport, its anticorruption programme and even the Tennis Integrity unit itself. In order to get a better understanding of the reasons behind players getting involved in match-fixing, we would recommend the piece by Jon Wertheim published in Sports Illustrated on 20 January. Tennis’ vulnerability to match fixing, as he lays out pretty well, lies in the inequalities between the earnings of the top players and the players further down the ranking. 


Case law

The Court of Arbitration for Sport (CAS) published its long awaited decision concerning the alleged doping violation of the thirty-four current and former players of Essendon Football Club. Even though the CAS had already announced its decision in May 2015 (as is extensively discussed on our Blog), it is definitely worthwhile reading the award to grasp the reasoning behind the decision.

On a different note, the High Court of Justice Queen's Bench Division Manchester District Registry Mercantile Court published a very interesting judgment in the field of international sports arbitration on 19 January.[2] The case concerned a CAS award from August 2014 by which the Italian football club Palermo was ordered based on a penalty clause included in the contract to pay €9.4 million to the English firm Pencil Hill Limited. Thus, the legal question posed to the English Court was whether enforcing this CAS award based on a penalty clause would be contrary to public policy. In a nutshell, the judge held that “the public policy of upholding international arbitral awards…outweighs the public policy of refusing to enforce penalty clauses”.

 

Official Documents and Press Releases of the SGBs


In the news

Tennis

Athletics

 Footballleaks and TPO

FIFA Presidential Elections

Other


Case law (CAS, others)


Academic materials


Upcoming events February-March



[1] For more information see Sam Borden, “In Race for FIFA President, Two Front-Runners and Many Possibilities”, New York Times 26 January 2015.

[2] Pencil Hill Limited v US Citta Di Palermo S.p.A, 2016 WL 212897. The judgment can be accessed via Westlaw.co.uk.

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – February 2016

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – February 2016

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 Headlines

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. Both men are of course Swiss[1], and both were general secretaries of an international football governing body (UEFA and FIFA respectively) before becoming FIFA President. Only time will tell whether Infantino manages to cleanse FIFA from all the corruption and demonstrate that he is the right man for the job. In this regard, Infantino’s portrait by Sam Borden is definitely worth a read.

Though no FIFA official was lifted from his hotel bed by the police in the days before this FIFA Extraordinary Congress, the build-up was not entirely flawless. Two of the four Presidential Candidates, Prince Ali and Jérôme Champagne, turned to CAS prior to the elections with the aim of “incorporating transparent voting booths as well as independent scrutineers, in order to safeguard the integrity of the voting process and to ensure that the vote is conducted in secret. In addition, Prince Ali also asked for the FIFA Presidential Election to be postponed in the event the CAS could not rule on the request for provisional measures before the election.”[2] Unfortunately for the two candidates, on 24 February CAS rejected their requests (press releases are accessible here and here), promising that the “full order with grounds will be communicated in a few days”. Yet, the CAS website remained mute since then.

At that same Extraordinary FIFA Congress of 26 February, several reforms were also approved. The reforms include term limits for the FIFA President, FIFA Council members and members of the Audit and Compliance Committee and of the judicial bodies of max. 12 years, and the disclosure of individual compensation on an annual basis of the FIFA President, all FIFA Council members, the Secretary General and relevant chairpersons of independent standing and judicial committees. A summary of these reforms can be read here.

Another headline involving FIFA was the FIFA’s Appeal Committee’s decision to uphold the sanctions imposed on the Belgian club FC Seraing for infringing the rules on Third Party Ownership (TPO). The sanctions include a fine of CHF 150.000 and a complete transfer ban for four consecutive transfer windows starting in the summer of 2016. TPO (or FIFA’s decision to ban the practice) was once again making headlines in February, in large part thanks to the website of footballleaks (for more on the people behind this website, I recommend this interview published by Der Spiegel). On 1 February footballleaks published the Economic Rights Participation Agreement (ERPA) between Doyen Sport and the Spanish club Sevilla FC regarding the economic rights of the French football player Geoffrey Kondogbia. Another ERPA that was made accessible for the general public also involved Doyen and a Spanish club, namely Sporting de Gijón.

In addition to new agreement releases by footballleaks, the consequences of earlier releases were slowly being felt in February. For example, the release of the Gareth Bale transfer agreement between Tottenham Hotspur and Real Madrid on 20 January caused quite a few raised eyebrows throughout Europe. Most interestingly, three Members of the European Parliament officially asked the European Commission whether it is planning to “take action under its competition law and state aid responsibilities”, since one of the banks involved in the transfer agreement (Bankia) was previously saved by the European Stability Mechanism (ESM) with public money. The Commission’s answer to this question can be expected shortly.

As regards other issues involving EU law and sport, February was a relatively quiet month. The most interesting new development took place on 22 February with the Euroleague Basketball stating that it submitted a competition complaint before the European Commission against FIBA and FIBA Europe. In a nutshell, Euroleague Basketball is attacking the “unacceptable and illegal threats and pressures that FIBA and its member federations are making against clubs, players and referees to force them to abandon the Euroleague and the Eurocup and only participate in FIBA competitions”. The point of view of FIBA on this issue can be read here. It remains open whether the Commission decides to investigate the matter formally.

This same question can be asked about FIFPro’s complaint against the transfer system. FIFPro has decided to launch #GameChangers campaign to support the complaint and pressure the European Commission into opening an investigation. For an in-depth analysis of the issue, I recommend this piece by Nick de Marco and Alex Mills. 

A report listing the sportslaw headlines would be incomplete these days without references to all the doping related news. It is worth remembering that the two reports by the WADA Independent Commission into doping in international athletics[3] lead to the IAAF banning for life three of its senior officials.[4] This IAAF decision was appealed by the three officials in front of CAS on 1 February. The outcome of this appeal is currently still pending. The Russian Government, meanwhile, heavily criticised the two reports, holding that there is no evidence that it was involved in State-supported doping.  


Case law

The German Appeal Court in Rheinland-Pfalz reached a decision in the Müller case on 17 February.  Contrary to what the Labour Court of Mainz held in March 2015[5], the Appeal Court argued that football players are employed under a fixed-term contract. The judgment has not been made public (yet), so we do not know the full extent of the Appeal Court’s legal argumentation. Further appeal options were available to Müller, but it is unclear whether he exercised them.

On 4 February, another German Appeal Court (the OLG Frankfurt) rendered its decision in the Rogon case (we commented the first ruling on provisory measure in June) involving the German implementation of the new FIFA Regulations on Working with Intermediaries. Here again, the full text of the ruling is still missing and we can only elaborate on press reports (here and here). Yet, it seems that the Court has decided to partially uphold the new Regulations (especially the no-fee for minors provision), while it also stroke down some aspects of the new rules (especially the intermediary’s duty to register with the DFB). 


Official Documents and Press Releases


In the news

Athletics

Australian Football

Baseball

Cycling

Football

Speed skating – Pechstein

Tennis

Other


Academic materials



[1] In fact, Infantino grew up in the town of Brig, less than 10 km from Visp, Blatter’s home town.

[2] Media Release by the Court of Arbitration for Sport of 24 February 2016, “CAS rejects HRH Prince Ali Al Hussein’s request for urgent provisional measures”, http://www.tas-cas.org/fileadmin/user_upload/Media_Release_4459_decision.pdf accessed 23 March 2016.

[3] The Independent Commission Report #1 of 9 November 2015, https://wada-main-prod.s3.amazonaws.com/resources/files/wada_independent_commission_report_1_en.pdf accessed 24 March 2016; and The Independent Commission Report #2 of 14 January 2016, https://wada-main-prod.s3.amazonaws.com/resources/files/wada_independent_commission_report_2_2016_en_rev.pdf accessed 24 March 2016.

[4] I.e. Papa Massata Diack, Valentin Balakhnichev and Alexei Melnikov.

[5] For more information on the Müller case in first instance, read the blogs by Piotr Drabik: “Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework”, http://www.asser.nl/SportsLaw/Blog/post/part-1-compatibility-of-fixed-term-contracts-in-football-with-directive-1999-70-ec-the-general-framework-by-piotrek-drabik accessed 24 March 2016; and “Compatibility of fixed-term contracts in football with Directive 1999/70/EC. Part 2: The Heinz Müller case”, http://www.asser.nl/SportsLaw/Blog/post/compatibility-of-fixed-term-contracts-in-football-with-directive-1999-70-ec-part-2-the-heinz-muller-case-by-piotr-drabik accessed 24 March 2016.

[6] Prof. Ben Van Rompuy of the Asser Institute contributed tot his report with his piece “The role of the betting industry”, pages 236-241.

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Asser International Sports Law Blog | Sports arbitration and EU Competition law: the Belgian competition authority enters the arena. By Marine Montejo

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Sports arbitration and EU Competition law: the Belgian competition authority enters the arena. By Marine Montejo

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 14 July 2016, the Belgian competition authority refused to grant provisional measures to the White Star Woluwe Football Club (“The White Star”), which would have allowed it to compete in the Belgian top football division. The club was refused a licence to compete in the above mentioned competition first by the Licences Commission of the national football federation (“Union Royale Belge des Sociétés de Foootball Association” or “URBSFA”) and then by the Belgian court of arbitration for sports (“Cour Belge d’Arbitrage pour le Sport” or “CBAS”). The White Star lodged a complaint to the national competition authority (“NCA”) and requested provisional measures. The Belgian competition authority rendered a much-overlooked decision (besides one commentary) in which it seems to accept the reviewability of an arbitral award’s conformity with EU competition law (articles 101 and 102 TFEU). 


1. Licencing mechanism in football and EU competition law

In April 2016, the White Star won the 2015-2016 Belgian’s football second division championship (until then known as the “Proximus League”, but as of the 2016-2017 season renamed “Division 1B” or “D1 B”) and, as such, was, on sporting grounds, expected to accede to the top division (“Division 1A” or “D1 A”, but previously called “Jupiler ProLeague”).

However, in order to be allowed to compete in the D1 A championship (as well as for the D1 B), all professional football clubs have to obtain a licence under the URBSFA’s regulation (“federal regulation”). This licence is granted if the club complies with of the following criteria:

  • Article 406 provides for the so-called ‘continuity obligation’ which, in a nutshell, aims at ensuring the financial stability of the club for the entire season to come.

  • Article 407 draws up a list of general conditions by which all professional clubs have to comply with.

  • Articles 408 and 410 provide for specific conditions for either D1 A and D1 B clubs.

On 12 April 2016, the URBSFA Licences Commission (“Commission des Licences”) refused to grant the D1 A or the D1 B licences to the White Star to the effect that the club did not comply with the general conditions provided in article 407. According to the Licenses Commission, the club suffers from chronical financial problems (including unpaid debts) and it had no guarantees of having access to its stadium for the upcoming season as no agreement had been reached at the time with the municipality. The White Star appealed the decision to the CBAS, which rendered its arbitral award on 6 May (award published on 13 May). The arbitral tribunal annulled the first decision of the Licences Commission, insofar as at the time of the hearing the White Star provided further evidence that it complied with the general conditions. However, the CBAS finally decided not to grant the licence, because the club’s financial stability was not ensured and, as a consequence, it did not comply with the ‘continuity obligation’ provided in article 406. The arbitral tribunal highlights the club’s chaotic financial situation in its award[1] and concluded that the club could not be granted either a D1 A or D1 B licences. Consequently, the club should be relegated to the third division and be subject to amateur status.

The White Star sought provisional measures before the NCA in order to be granted a professional licence and participate in the D1 A 2016-2017 championship. To grant an interim measure, the NCA has to make a prima facie assessment of the alleged infraction which, in this case, relates to the licencing system. The question is whether a refusal to grant a licence to a football club, which would allow it to participate in the first division infringes competition law. Without prejudice to the final decision, the NCA recalled that the licence system at stake had already been assessed and found compatible with EU competition law provisions in previous decisions.[2] Furthermore, the NCA indirectly assessed[3] the modification of the system that was decided in 2015 by the Belgian federation, which provides for stronger control over financial conditions and continuity obligations. It is widely acknowledged that a licencing system has a restrictive effect because it limits access to football competitions. Without said licence, a club cannot enter the relevant market. However, those effects were found to be inherent to the organisation of sport competitions (Meca Medina, C-519/04, 18/07/2006) and proportionate to its objective, i.e. to make sure that all clubs are able to sustain their participation in the competition, as a financial default of one club during the season would threaten the position of the competition and of the others clubs. Subsequently, the Belgian competition authority decided that it was not established prima facie that there was a breach of competition law provisions either with regard to the ‘continuity obligation’ or its application. 

The surprising aspect of the decision is that the NCA envisaged an alternative and less restrictive measure by integrating the White Star into the second division without it being requested by the club in its complaint. Both D1 A and D1 B licences were refused because after the 2015 modification of the regulation, the criteria for both divisions converged in order to professionalize the second division. This means that if the D1 A licence is refused, the probability is relatively high that the other licence (D1 B) will be refused as well and that the club will be relegated to the third division. The NCA concluded that this arrangement was inherent to the modification of the regulation and that it was not, prima facie, a disproportionate restriction. The decision also stated that the balance between the White Star’s interests and those of other clubs would be compromised if no breach is found in the final decision.[4] 


2. Sports arbitral awards and EU competition law, an uneasy relationship

The most interesting part of the decision is on the interaction between EU competition law and sports arbitration. The Belgian football federation’s regulation provides for the exclusive competence of the CBAS to appeal the Licences Commission’s decision (article 421). The arbitration tribunal then has the duty to conduct a further factual and legal examination of the case. The award is still amenable to an action for annulment in front of the First Instance Tribunal (“Tribunal de Première Instance”). The possible grounds are listed exhaustively in article 1717§2 of the Belgian Judicial Code (“Code Judiciaire Belge”). This procedure is not unknown in sports law and is rather similar to the system in force at the Court of Arbitration for Sport (“CAS”) in appeal procedures following a sports federation’s decision where the regulation of the body concerned expressly provides for it. Judicial review of the CAS award is also available before the Swiss Federal Tribunal on a very limited number of grounds. 

Challenges to arbitral awards concerning sports matters on EU competition law grounds is not a novelty either. In the past, the European Commission (“Commission”) and the Court of Justice of the European Union (“CJEU”) received complaints on EU competition law grounds involving arbitral awards rendered by the CAS. All these cases have one thing in common: both the Commission and the CJEU decisions did not refer directly to the arbitral award and went on instead to examine whether the rules of the sport governing body (“SGB”) on which the awards were grounded were compatible with EU competition law provisions. Already with the Meca Medina case the CJEU limited its assessment to FINA (International Swimming Federation) anti-doping regulations. The same approach was used by the Commission in the ENIC case referring to the UEFA rule on multiple ownership of football clubs (COMP/37 806 ENIC Plc/UEFA, 25/06/2002) and the Cañas case regarding the ATP anti-doping code (COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009). In those three cases, the SGB’s rules were found compatible with EU competition law provisions as long as they are proportionate to their objective, which was deemed the case in such instances. However, if the rule at stake had been found in breach of articles 101 or 102 TFEU, the award would be contrary to EU competition law as well.

The Court and the Commission are reluctant to give way to challenges against arbitral awards based on competition law provisions.[5] In Meca Medina, the Commission and the Court both criticized the applicants’ choice to submit a complaint based on EU competition law while they did not appeal the CAS award in front of the Swiss Federal Tribunal.[6] In Cañas, the Commission endorsed CAS as a legitimate independent institution whose role as a sport arbitral institution is comparable to that of national courts.[7] It is particularly striking that the Commission is reluctant to be seen as an alternative appeal mechanism against CAS awards[8], and here probably lies the explanation as to why it restricts its assessment to the SGB’s rule and leaves the arbitral award aside.

 

3. The White Star decision, a new twist in the debate

The Belgian competition authority faces the same type of challenge in the White Star case in which the arbitral award was an appeal of the Belgian football federation’s decision based on the federal regulation providing for a licence mechanism and, as a consequence, restricting the access for the club to the market of top division football matches. Had the NCA followed the Commission and the CJEU practice, it would have ignored the award and directly assessed the SGB’s rule under EU competition law. 

Yet, the Belgian competition authority did not leave the award aside. To apply EU competition law provisions to that case, the NCA did not have any difficulty in considering that the football federation is an association of undertakings (nothing new and revolutionary here), and quickly concluded that the CBAS is neither an undertaking nor an association of undertakings following the Commission assessment in Cañas[9]. However, and the innovative aspect of the decision lies here, it considers that the interpretation of the URBSFA regulation enacted by the football federation, an association of undertakings and as such bound by competition law provisions, may be a restrictive practice even though the CBAS is not in itself subject to competition law.[10] The licensing requirements provided by the federal regulation are subject to competition law scrutiny because the URBSFA is an association of undertakings. The arbitral award annulled and replaced the URBSFA Licences Commission’s decision[11], as the CBAS has unlimited jurisdiction to review the case on appeal. As a consequence, the only decision still existing is the arbitral award. Therefore, it seems that the Belgian competition authority considers that the effect of the award is to implement the URBSFA’s regulation which means that the arbitral award is ‘detached’ from the arbitral tribunal and deemed attributable to the football association and, as a consequence, may potentially constitute a restrictive practice[12]. The new and important aspect of the decision being that the NCA will then review both the URBSFA regulations and its interpretation by the CBAS in its arbitral award, meaning that the Belgian competition authority will also assess the arbitral award. 

An explanation for this innovative argumentation is probably the fact that this case is a request for interim measures related to an individual decision, i.e. the arbitral award. The Belgian NCA, contrary to the established practice of EU institutions in similar cases, did not deal with it as an indirect challenge to the award via the URBSFA regulation. The NCA justifies its reasoning by saying that it must protect the effectiveness (“effet utile”) of later decisions on the merits of the case.[13] It therefore recalls that its role is to enforce competition law provisions which are a matter of public policy based on the CJEU’s Eco Swiss (C-126/97) decision. This case concerns an action for annulment in commercial arbitration, but its findings can be extended to sports arbitration. Following the Eco Swiss jurisprudence, the responsibility for reviewing compliance with European public policy rules lies with the national courts of the Member States and not with the arbitrators. This means that it is for the judges to decide whether an arbitral award is in conformity with EU competition law and set it aside if it breaches these provisions. 

The Belgian competition authority extended that jurisprudence to its own assessment of the compatibility of the URBSFA regulation with EU competition law.[14] Hence, if it had considered the regulation in breach of EU competition law, the award itself would have been found contrary to the same provisions and set aside. This means that, in the end, the NCA would have the ability to set aside the arbitral award without the interference of a (national) court in the meaning of the Eco Swiss judgment. Indeed, if the SGB’s rules are contrary to articles 101 or 102 TFEU, then the award is too.[15] The NCA decision will, consequently, lead to the annulment of the arbitral decision which, in turn, will not be enforced. This is also important in the light of the Belgian competition authority decision that is, while attributing the award to the SGB, also allowing a control on the interpretation of the licensing rules by the CBAS.

Nonetheless, the Belgian competition agrees with the CJEU and the Commission regarding the competition law arguments raised against the arbitral procedure. The White Star challenged the ‘forced’ appeal procedure in front of the CBAS provided by the federal regulation as well as the independence and impartiality of the CBAS on competition law grounds. The CBAS invoked the findings in the recent Pechstein case (Bundesgerichtshof, KZR 6/15, 07/06/2016), very similar to the one at stake, to argue that the procedural characteristics in sports arbitration had already been found compatible with EU competition law. At the EU level, the Commission already considered that a forced arbitration clause would only constitute a breach of EU competition law if it supports a restrictive practice, but not on its own (see Cañas, p. 41). The Belgian competition authority, in turn, considers that there is not a prima facie competition law breach because of the possibility to appeal the arbitral award to the Tribunal of First Instance, a national court.[16] The argumentation on this point is limited. However, one should remember that this is an interim measure decision and the NCA is only checking prima facie restrictions. 

Finally, the Belgian competition authority did not quite reply to the CBAS argument stating that preliminary measures would endanger the uniformity and organisation of sports arbitration if granted in that case. It recalled that in a previous case of interim relief regarding a CBAS sentence, a judge declared of its own motion that it had no jurisdiction to hear the case (Première instance du Hainaut, Division de Mons, 09/05/2016), but the Tribunal of First Instance did have jurisdiction by law. The question is whether the NCA created a third alternative of recourses against arbitral awards in addition to the one in front of the First Instance Tribunal. The NCA made sure to state that it is not an appeal body[17] and, as such, its only preoccupation is to scrutinize that competition law provisions are applied. Therefore, the NCA did not create an alternative way of appeal, but the attribution of an arbitral award to a sport federation is a notable move. The CBAS argues in its conclusions[18] that the judge in the proceeding detailed in article 1717 of the Belgian Code of Justice is as competent as the NCA to hear EU competition law arguments in the case of an appeal (where the Eco Swiss judgement applies). 

The CBAS argument is not entirely convincing. If this decision appears to be as important, it is because the NCA will, in most cases, have a greater capacity than a judge to decide if there is a competition law breach. On another hand, a question is raised about the extent of the control of the judge over public policy arguments in the case of a legal action against the enforcement of an arbitral award. For example, the French Cour de Cassation requires a control limited to a manifest error of assessment (Cour de Cassation, Chambre civile 1, of 13 October 1981, 80-11.098, Publié au bulletin). Indeed, in the Belgian case the NCA will exercise a more stringent control than just the identification of a flagrant infringement of competition law provisions. To add to the debate, in a recent case[19] Advocate General Whatelet defended a stronger control of the judge over the compatibility of arbitral awards with EU competition law.[20] The CJEU did not endorse this position but did not reject it either. The question whether arbitral awards and the rules they are based on will become subject to greater scrutiny under articles 101 and 102 TFEU is still pending. 

Consequently, the Belgian competition authority extended the EU competition law control over sports arbitration to cover the specific interpretation of the SGB’s regulations by an arbitral tribunal. As a consequence, and if this reasoning is confirmed, lawyers might be able to challenge an arbitral award directly with the national competition authorities if it appears to interpret the SGB’s regulations in contradiction with EU competition law.

It should be noted that this procedure is only about provisional measures, but the legal reasoning used by the Belgian competition authority shakes the already shaky grounds of sports arbitration. After the Pechstein and SV Wihelmshaven cases in German courts, sports arbitration is anew put to the test based on EU law considerations. The Belgium decision went unnoticed because it is in French and the regulations at stake were not deemed contrary to competition law. However, if more national competition authorities follow a similar reasoning, more challenges of arbitral awards in sport matters will necessarily arise. The question that remains open is whether the Commission itself will welcome such a change or not.




[1] « Force est de constater qu’il s’agit là d’un ensemble de faits précis, graves et concordants qui remettent fondamentalement en cause l’affirmation selon laquelle la continuité du club peut être assurée pour la saison 2016-2017 », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p.23.

[2] See for example decision 2004-E/A-25, 04/03/2004.

[3] The NCA organises an informal procedure with the ProLeague, the Belgian professional football teams’ association, to monitor the sale of the media rights from 2005. In this framework the NCA had to examine the modification of the football federation’s regulation in 2015. See, for further explanation, Autorité Belge de la Concurrence, 14/07/2016 points 22-62, p. 65-69.

[4] « … la balance des intérêts de la Requérante et des autres clubs risque d’être compromise au cas où une infraction ne serait pas établie », Autorité Belge de la Concurrence, 14/07/2016 point 81, p. 177.

[5] For an in-depth analysis, see Antoine Duval, “The Court of arbitration for sport and EU Law: Chronicle of Encounter”, (2015) 22, Maastrich Journal of European and Comparative Law, 2, p. 224-255.

[6] Supra, p. 251.

[7] Supra, p. 252.

[8] Supra, p. 253.

[9] « (…) Le rôle du TAS est comparable à celui d’un tribunal. Il rend des décisions arbitrales qui ont généralement la même force que des jugements de juridictions de droit commun. L’exercice de ces activités de jugement, ainsi que l’administration et le financement de ces activités par le CIAS, ne peuvent être considérés comme constituant une activité économique (…) Par conséquent, il semble difficile de qualifier le CIAS (ou le TAS) (…) d’entreprises ou d’associations d’entreprises au sens de l’article 81 et/ou 82 du traité CE. », COMP/39471, Certain joueurs de tennis professionnels v. Agence mondiale antidopage, ATP et CIAS, 12/10/2009, point 23.

[10] « […] Le Collège ne considère dès lors pas manifestement déraisonnable de penser que l’Autorité puisse constater qu’une interprétation d’un règlement qui entre dans le champ d’application des règles de concurrence, constitue une pratique restrictive même sans qu’elle ne soit sanctionnable dans le chef de l’instance qui l’a interprété […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[11] « Met à néant la décision prononcée par la Commission des Licences de l’ASBL URBSFA… », Cour Belge d’Arbitrage pour le Sport, 13/05/2016, p. 32.

[12] See supra 10 and « (…) [Le Collège] peut dès lors apprécier dans le cadre de cette procédure en matière de mesures provisoires, prima facie, la conformité avec le droit de la concurrence du Règlement fédéral et de son application et effets dans la mesure où le refus de licence continue à produire ses effets, même si la décision de la commission de l’URBSFA est formellement remplacée par la sentence arbitrale de la CBAS. », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[13] « […] de protéger dans le cadre de cette procédure en matière de mesures provisoires l’effet utile de la décision à prendre dans le cadre de la procédure de fond. […] », Autorité Belge de la Concurrence, 14/07/2016 point 53, p. 172.

[14] « Le Collège fait remarquer qu’une autorité de concurrence est chargée de la mise en œuvre de règles d’ordre public. […] », Autorité Belge de la Concurrence, 14/07/2016 point 52, p. 172.

[15] See Duval, p. 251.

[16] Autorité Belge de la Concurrence, 14/07/2016 point 62, p. 174.

[17] « Elle n’est pas une instance d’appel pour entendre des recours contre une décision attaquée », Supra, point 52, p. 172.

[18] Autorité Belge de la Concurrence, 14/07/2016 point 119, p. 146.

[19] Opinion of Advocate General Wathelet, 17/03/2016, Case C‑567/14, Genentech Inc.v Hoechst GmbH, formerly Hoechst AG, Sanofi-Aventis Deutschland GmbH and CJEU, 07/07/2016.

[20] Supra, point 71 “For these reasons, the review by a court of a Member State of whether international arbitral awards are contrary to European public policy rules cannot be conditioned by whether or not this question was raised or debated during the arbitration proceedings, nor can it be limited by the prohibition under national law preventing the substance of the award in issue from being reconsidered.”

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