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 – April 2016. By Marine Montejo

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

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...


The boundaries of the “premium sports rights” category and its competition law implications. 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.

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...

Guest Blog - Mixed Martial Arts (MMA): Legal Issues by Laura Donnellan

Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.


Introduction

On Tuesday the 12th of April, João Carvalho passed away in the Beaumont Hospital after sustaining serious injuries from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The fighter was knocked out in the third round of a welterweight fight against Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises a number of interesting legal issues. This opinion piece will discuss the possible civil and criminal liability that may result from the untimely death of the Portuguese fighter.

It is important to note at the outset that MMA has few rules and permits wrestling holds, punching, marital arts throws and kicking. MMA appears to have little regulation and a lack of universally accepted, standardised rules. There is no international federation or governing body that regulates MMA. It is largely self-regulated. MMA is not recognised under the sports and governing bodies listed by Sport Ireland, the statutory body established by the Sport Ireland Act 2015 which replaced the Irish Sports Council. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered.

The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. Currently there are no minimum requirements when it comes to medical personnel; nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17 MMA promoters in Ireland requesting that they implement safety precautions in line with those used by other sports including boxing and rugby.

Despite this lack of regulation, this does not exempt MMA from legal liability as the discussion below demonstrates.More...



Guest Blog - The Role of Sport in the Recognition of Transgender and Intersex Rights by Conor Talbot

Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.More...



Unpacking Doyen’s TPO Deals: The Final Whistle

Footballleaks is now operating since nearly half a year and has already provided an incredible wealth of legal documents both on TPO (and in particular Doyen’s contractual arrangements) and on the operation of the transfer system in football (mainly transfer agreements, player contracts and agents contracts). This constant stream of information is extremely valuable for academic research to get a better grip on the functioning of the transfer market. It is also extremely relevant for the shaping of public debates and political decisions on the regulation of this market. As pointed out on the footballleaks website, it has triggered a series of press investigations in major European news outlets.

In this blog, I want to come to a closure on our reporting on Doyen’s TPO deals. In the past months, we have already dealt with the specific cases of FC Twente and Sporting Lisbon, reviewed Doyen’s TPO deals with Spanish clubs, as well as discussed the compatibility of the TPO ban with EU law. In the Sporting Lisbon case, Doyen has since earned an important legal victory in front of the CAS (the ensuing award was just published by Footballleaks). This victory should not be overstated, however, it was not unexpected due to the liberal understanding of the freedom of contract under Swiss law. As such it does not support the necessity of TPO as an investment practice and does not threaten the legality (especially under EU law) of FIFA’s ban.

In our previous blogs on Doyen’s TPO deals we decided to focus only on specific deals, Twente and Sporting Lisbon, or a specific country (Spain). However, nearly six months after the whole footballleaks project started, we can now provide a more comprehensive analysis of the TPO deals signed by Doyen. Though, it is still possible that other, yet unknown, deals would be revealed, I believe that few of Doyen’s TPO agreements are still hidden. Thanks to footballleaks, we now know how Doyen operates, we have a precise idea of its turnover, its return on investments and the pool of clubs with which it signed a TPO agreement. Moreover, we have a good understanding of the contractual structure used by Doyen in those deals. This blog will offer a brief synthesis and analysis of this data.More...





Unpacking Doyen’s TPO Deals: TPO and Spanish football, friends with(out) benefits?

Update: On 14 April footballleaks released a series of documents concerning Sporting de Gijón. Therefore, I have updated this blog on 19 April to take into account the new information provided.  

Doyen Sports’ TPO (or TPI) model has been touted as a “viable alternative source of finance much needed by the large majority of football clubs in Europe". These are the words of Doyen’s CEO, Nélio Lucas, during a debate on (the prohibition of) TPO held at the European Parliament in Brussels last January. During that same debate, La Liga’s president, Javier Tebas, contended that professional football clubs, as private undertakings, should have the right to obtain funding by private investors to, among other reasons, “pay off the club’s debts or to compete better”. Indeed, defendants of the TPO model continuously argue that third party investors, such as Doyen, only have the clubs’ best interests in mind, being the only ones capable and willing to prevent professional football clubs from going bankrupt. This claim constitutes an important argument for the defendants of the TPO model, such as La Liga and La Liga Portuguesa, who have jointly submitted a complaint in front of the European Commission against FIFA’s ban of the practice.[1]

The eruption of footballleaks provided the essential material necessary to test this claim. It allows us to better analyse and understand the functioning of third party investment and the consequences for clubs who use these services. The leaked contracts between Doyen and, for example, FC Twente, showed that the club’s short term financial boost came at the expense of its long-term financial stability. If a club is incapable of transferring players for at least the minimum price set in Doyen’s contracts, it will find itself in a financially more precarious situation than before signing the Economic Rights Participation Agreement (ERPA). TPO might have made FC Twente more competitive in the short run, in the long run it pushed the club (very) close to bankruptcy.

More than four months after its launch, footballleaks continues to publish documents from the football world, most notably Doyen’s ERPAs involving Spanish clubs.More...

International and European Sports Law – Monthly Report – March 2016. By Marine Montejo

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. 

Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.


The Headlines

The Belgian Court of Appeal released its judgment this month regarding Doyen’s legal battle against the FIFA TPO ban. The Appeal Court confirmed the first instance decision and ruled out any provisional measures to block the ban’s implementation (for an in depth review, see our blog post). More importantly, the Court reaffirmed that Swiss based sport federations are liable in front of EU Members’ States courts when EU competition law is involved. That means the next important step for this legal battle is whether or not the European Commission is going to open a formal proceeding (Doyen already lodged a complaint) to assess the compatibility, and more importantly, the proportionality of the TPO ban with EU law. Only a preliminary ruling by the CJEU could hasten the decision if one of the European national courts, hearing a case brought by Doyen (France or Belgium), decided to refer a preliminary question.More...


Doyen’s Crusade Against FIFA’s TPO Ban: The Ruling of the Appeal Court of Brussels

Since 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.[1] 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 case.

·      The jurisdiction of the Belgian courts

·      The admissibility of Doyen’s action

·      The conditions for awarding provisory measures More...

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. More...


Book Review: Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport—Commentary, Cases, and Materials (Wolters Kluwer International 2015). By Professor Matthew Mitten

Editor’s note: Professor Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts. Professor Mitten is a member of the Court of Arbitration for Sport (CAS), and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi, Russia.

This Book Review is published at 26 Marquette Sports Law Review 247 (2015).


This comprehensive treatise of more than 700 pages on the Code of the Court of Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful to a wide audience, including attorneys representing parties before the CAS, CAS arbitrators, and sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars.  It also should be of interest to national court judges and their law clerks because it facilitates their understanding of the CAS arbitration process for resolving Olympic and international sports disputes and demonstrates that the Code provides procedural fairness and substantive justice to the parties, thereby justifying judicial recognition and enforcement of its awards.[1]  Because the Code has been in existence for more than twenty years—since November 22, 1994—and has been revised four times, this book provides an important and much needed historical perspective and overview that identifies and explains well-established principles of CAS case law and consistent practices of CAS arbitrators and the CAS Court Office.  Both authors formerly served as Counsel to the CAS and now serve as Head of Research and Mediation at CAS and CAS Secretary General, respectively, giving them the collective expertise and experience that makes them eminently well-qualified to research and write this book.More...


Asser International Sports Law Blog | The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

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

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.


The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals 

A. Facts and procedures

Henrik Kristoffersen, silver medalist at the 2018 Pyeongchang Olympic Games and a bronze medalist at the 2014 Sochi Olympic Games, is a member of the Norwegian national alpine skiing team. Kristoffersen is not an employee of the Norwegian Ski Federation (NSF), but he did sign a standard athlete’s contract with the NSF to be able to participate in the national team.[1]

The Norwegian Ski Federation (NSF) - a non-profit organisation - is a sports organisation, which organises, among other things, activities in the discipline of alpine skiing. The NSF is a member of both the International Ski Federation (FIS) and of the Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF). Therefore, the NSF is subject to the FIS’ and the NIF’s regulations. Only the FIS and its national federations, such as the NSF, organise alpine skiing races of financial value to alpine skiers in classic disciplines, such as the slalom and downhill skiing. The NSF is financed by public funds and marketing contracts. The revenues gained from marketing activities accounted for 71% of the NSF’s total income in 2015.[2]

Individual sponsorship agreements are subject to the NSF’s approval,[3] although the NSF’s standard athlete contract foresees an exception[4] in which the athlete may enter into individual sponsorship agreements with equipment providers in the NSF’s “skipool”. The NSF skipool is a pool scheme that is open to selected equipment suppliers without requiring the NSF’s approval. To become a member of the NSF skipool, suppliers must be approved as an equipment supplier by the FIS/NSF. In addition, they also must pay an annual fee to the NSF. Athletes are prohibited from entering into agreements with any supplier that is not a member of the NSF skipool.

The NSF covers all expenses (e.g. board and lodging, transport, equipment, medical support, insurance, etc.) of the members of the Norwegian national alpine skiing team for approximately 200 days a year, but the athletes do not receive any of the funds that the NSF collects from the main and co-sponsors as the athletes’ own income.[5]

This specific case concerns a dispute between Kristoffersen and the NSF relating to an individual sponsorship contract that Kristoffersen had with Red Bull[6] for helmet and headgear worn in races under the auspices of the NSF and the International Ski Federation (FIS). Kristoffersen and Red Bull had been seeking to enter into such an agreement since 2014, but the NSF had refused permission for Kristoffersen to sign the contract at the end of April 2018.[7] The NSF had already decided to include space upon its helmet and headgear in the contract with its main sponsor, Telenor.

B. Questions to the EFTA Court and its answers

The questions

In this dispute, the Oslo District Court referred six questions to the EFTA Court, the supranational judicial body responsible for interpreting the Agreement on the European Economic Area (EEA) for the EFTA States that are parties to the EEA Agreement (Iceland, Liechtenstein and Norway).[8]

The questions essentially covered two issues.

The first issue was whether rules, such as those in the NSF Joint Regulations, on prior control and consent for individual sponsorship contracts regarding commercial marking on the national team’s equipment, or the application of those rules, constitute a restriction under Article 36 EEA Agreement or the Services Directive.[9]

The second issue was whether such a restriction on an athlete’s right to enter into sponsorship agreements could be justified.

Prior control and consent for individual sponsorship contracts can constitute a restriction

Applicability of Article 36 EEA Agreement

The EEA Agreement’s free movement rules may also apply to the rules laid down by sports associations.[10] With reference to the Court of Justice of the European Union’s long-standing case law,[11] the EFTA Court has concluded that sport is subject to EEA law to the extent it constitutes an economic activity. Athletes’ sponsorship contracts entail marketing services, which constitute, as such, an economic activity.[12] The EFTA Court has also concluded that the cross-border element is present since the proposed sponsorship contract involved a Norwegian athlete and an Austrian company; and the professional competitions in which Kristoffersen participated took place in several EEA States.[13]

Next, the court has determined whether the present case concerns the freedom of establishment or the freedom to provide services. The court has stated that “the rules in question concern, at least predominantly, the freedom to provide services, as opposed to the freedom of establishment” since the NSF’s rules may grant or refuse permission to athletes to enter into individual marketing contracts, which will have an impact on Kristoffersen’s opportunities to provide marketing services. By contrast, the rules will not or only remotely, affect an athlete’s freedom to establish themselves as professional skiers, which is the activity from which their marketing activity derives.[14]

The prohibition of restrictions on the freedom of providing services

Article 36 EEA Agreement prohibits restrictions on the freedom of providing services within the EEA. Measures liable to hinder or make less attractive the exercise of a fundamental freedom guaranteed by the EEA Agreements are an encroachment upon this freedom.

A system of prior control and consent for individual sponsorship contracts appears to make the exercise of Kristoffersen’s marketing activity less attractive. Under the EFTA Court’s settled case law, prior authorisation schemes amount to a restriction on the freedom to provide services.[15] However, this is ultimately for the referring court to determine.[16]

Justifications to restrictions

A restriction on the freedom to provide services (Article 36 EEA Agreement) may be justified on the grounds set out in Article 33 EEA Agreement[17] or by overriding reasons in the public interest, provided that it is appropriate to secure the attainment of the objective that it pursues and does not go beyond what is necessary to attain it.[18]

Legitimacy of the aims pursued by the measures at issue

Aims of a purely economic nature, such as the desire to increase profits, cannot justify a restriction on the freedom to provide services. The aim of the measure in this case appears, however, to be related to ensuring a stable basis for the NSF’s activities. The court has found it relevant that the NSF is a non-profit sports association, that the marketing revenues are by far its most important source of income (71% of the NSF’s total income in 2015) and that the overall revenue is not only used for professional sports, but also for recruitment, education and children’s and reactional sports.

The EFTA Court has indicated – with reference to the CJEU’s Bernard judgment[19] - that the objective of encouraging the recruitment and training of young athletes is legitimate. But, it is not sufficient for the restrictive measure to resort to a legitimate aim in general: it must be assessed whether the measure at issue actually pursues the invoked aim. The referring court must therefore identify, in the light of the facts of the case, the objectives that are in fact pursued by the contested measure.[20]

Suitability/Consistency

The party imposing the restriction must demonstrate that the measure is suitable to achieve the legitimate objective pursued along with genuinely reflecting a concern to attain that aim in a consistent and systematic manner.[21] The EFTA Court states that it is reasonable that some of the revenues are only dedicated to professional athletes, but that the income generated must also benefit the legitimate aims (such as recruitment, education, children’s and recreational sports).[22]

In this case, the EFTA Court has concluded that the rules on prior control and consent for individual sponsorship contracts, such as those laid down in the NSF Joint Regulations, are suitable to achieve that objective since a substantial part of the income is spent on the objective of encouraging the recruitment and training of young athletes.[23]

Necessity

The referring court must also assess whether the measure goes beyond what is necessary to attain that objective. The necessity test implies that the chosen measure must not be capable of being replaced by an alternative measure that is equally useful but less restrictive to the fundamental freedoms of EEA law.[24] In this case, it must be assessed whether there are other less restrictive measures that would ensure a similar level of resources.[25]

The Court believes that the assessment of the system’s necessity must take account of the fact that the NSF and the athletes are mutually dependent on one another.[26] The system must ensure that the athletes receive a fair share of the revenues from sponsorship contracts. If not, that would constitute a disproportionate restriction on the athletes’ freedom to provide sponsorship services. The Court has argued that in this case it appears that revenue generated from marketing contracts constitutes the most important source of income for both the NSF and the athletes.[27] In addition to that, the Court has also taken into account that the NSF covers all the expenses of members of the Norwegian national alpine skiing team for approximately 200 days a year. Furthermore, the athletes may enter into individual sponsorship contracts with equipment providers in the NSF skipool without the NSF’s approval. Outside the NSF skipool, additional contracts may be entered into with the NSF’s approval.[28]

Kristoffersen concluded several of those contracts, which may have an impact on the assessment of the referring court about whether the athletes receive - through the system in place - a fair share of the revenue from the potential market for sponsorship contracts.[29]

C. Guidelines for concrete decisions and procedural aspects

A system of prior control and consent for individual sponsorship contracts may constitute a justified restriction on athletes’ freedom to provide sponsorship services, so long as it pursues a legitimate aim, is suitable and does not go beyond what is necessary to attain the aim.[30]

While a system of prior control and consent for individual sponsorship contracts may be justified as such, it does not necessarily follow that every individual decision taken under that system is equally justified. Such individual decisions must pursue the legitimate aims of the system in a suitable and proportionate manner and there must be a fair balance between the interests of the NSF and the professional athletes.[31]

The existence, at the time of the athlete’s application for approval, of a collective sponsorship contract with the NSF’s main sponsor, Telenor, covering helmet and headgear, may be relevant to the assessment of whether the concrete refusal is justified. The assessment of proportionality may also include the issue of whether the NSF was aware of Kristoffersen’s intention to enter into a separate sponsorship agreement when NSF concluded its collective sponsorship contract, as well as the impact of such a collective sponsorship agreement on Kristoffersen’s ability to generate income from his profession. Furthermore, the referring court may also take account of the impact of individual sponsorship contracts on the NSF’s ability to achieve the legitimate aims invoked.

Besides that, the system and the decisions under a national sports federation’s approval scheme for individual marketing contracts may not be arbitrary and must satisfy certain procedural requirements (such as: the proper communication of an individual decision within a reasonable time; and a review of the decision before an independent body should be available).[32]

Striking the right balance between collective interests and individual ones can be difficult as the EFTA Court’s decision illustrates. Even though the EFTA Court sets out some key principles for evaluating advertising and sponsorship restrictions, it leaves the ultimate call for balancing those interests to the Oslo District Court.


Conclusion

The EFTA Court has drawn a clear ‘line in the sand’ for SGBs.

The Court’s ruling considers that a system of prior control and consent for athlete’s individual sponsorships, and potential refusal of such sponsorship, constitutes a restriction of the freedom to provide services, to the extent that the system makes less attractive the exercise of an athlete’s freedom to provide a marketing service. Such a restriction will be acceptable only if it pursues a legitimate aim, is suitable and does not go beyond what is necessary to attain the aim.

Aims of a purely economic nature, such as the desire to increase profits, cannot justify such a restriction. The objective of encouraging the recruitment and training of young athletes can however be a legitimate aim, to the extent that a substantial part of the income is indeed spent on encouraging the recruitment and training of young athletes. Also, a fair balance between the federation’s interests and the particular athlete’s interests is required. The EFTA Court considers that SGBs and athletes are often mutually dependent on one another. Athletes must receive a fair share of the revenues from sponsorship contracts. A decision to refuse an endorsement must be well-reasoned and communicated to the athlete within a reasonable timeframe. In addition, a review procedure before a body independent of the federation should be available.

In times where SGBs’ advertising and sponsorship restrictions are already under scrutiny from a competition law perspective,[33] the EFTA Court has added internal market arguments to the mix. Both the fundamental freedoms and the competition law arguments are likely to bolster individual athletes seeking to increase revenue from their sporting activities. The decision clearly indicates that SGBs should be careful when dealing with sponsorship deals.

At the same time, the ruling shows SGBs how to adopt sponsorship regulations that are the least likely to infringe EEA law. To justify restrictions, the SGBs will need to come up with a transparent, intelligent system in which restrictions are justified in view of (proven) redistribution of income to support the training of athletes and the funding of amateur sports. The presence of independent review procedures will be key. In that respect, the EFTA Court ruling may serve as ‘ammunition’ for those looking to increase transparency and good governance in the seat of SGBs.


[1] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 8.

[2] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 9-10.

[3] It follows from art. 200.3 and 204.1 of the FIS International Ski Competition Rules (joint regulations for alpine skiing), section 13-3(3) and chapter 14 of the Norwegian Olympic Committee’s Statutes, and Point 206.2.5 of the NSF Joint Regulations.

[4] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 17.

[5] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 19.

[6] Red Bull GmbH has its headquarters in Austria.

[7] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 20.

[8] Article 34 of the “Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice” foresees in the possibility for courts or tribunals in an EFTA State (Norway, Iceland and Liechtenstein) to request the EFTA Court to give an advisory opinion on the interpretation of the EEA Agreement.

[9] Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on service in the internal market.

[10] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 68.

[11] See among others: CJEU 12 December 1974, n° 36-74, ECLI:EU:C:1974:140; Walrave and Koch/Union Cycliste International, par. 4; CJEU 14 July 1976, nr. 13/76, ECLI:EU:C:1976:115, Donà/Mantero, par. 12; CJEU 15 December 1995, n° C415/93, ECLI:EU:C:1995:463, ‘Bosman’, par. 73; CJEU 18 July 2006, n° C-519/04 P, ECLI:EU:T:2004:282, Meca-Medina and Majcen/Commissie, par. 37-44.

[12] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 66.

[13] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 67.

[14] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 69.

[15] EFTA Court 10 May 2016, Case E-19/15, ESA/Liechtenstein, par. 85.

[16] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 76.

[17] Article 33 EEA Agreement “The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.”

[18] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 114.

[19] CJEU 16 March 2010, n° C-325/08, ECLI:EU:C:2010:143, Olympique Lyonnais

SASP/Olivier Bernard and Newcastle UFC, par. 23.

[20] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 117.

[21] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 118.

[22] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 119.

[23] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 120.

[24] EFTA Court, 16 May 2017, Case E-8/16 Netfonds Holding ASA, Netfonds Bank AS and Netfonds Livsforsikring AS/the Norwegian Government.

[25] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 122.

[26] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 124.

[27] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 124.

[28] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 125.

[29] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 125.

[30] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 125.

[31] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 127-128.

[32] EFTA Court 16 November 2018, Case E-8/17, Kristoffersen/NSF, par. 129-133.

[33] Cf. https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2017/21_12_2017_DOSB_IOC.html.

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