The European Commission has informed the
International Skating Union (ISU) of its preliminary view that the ISU rules
under which athletes face severe penalties for participation in unauthorised
speed skating events are in breach of EU antitrust rules.
The ISU eligibility rules ban skaters
from international speed skating events such as the Olympic Games or the World
Championship, if they participate in international speed skating events that
are not approved by the ISU. If skaters break these rules, they can face up to
a life-time ban. The Commission's preliminary view is that the rules restrict
the athletes' commercial freedom unduly and result in a situation where they
are not willing to participate in speed skating events other than those
organise by the ISU or its members (national federations). This prevents new
entrants from organising alternative international speed skating events because
they are unable to attract top athletes.Commissioner Margrethe Vestager, in
charge of competition policy, said: "International sports
governing bodies play a unique role in setting the rules of the game and
ensuring standards of conduct. They are responsible for both the health and
safety of athletes and for the integrity of competitions. We have concerns that
the penalties the ISU imposes on skaters through its eligibility rules are not
aimed at preserving high standards in sport but rather serve to maintain the
ISU's control over speed skating. The ISU now has the opportunity to reply to
our concerns".
The Commission opened proceedings in relation to the ISU's eligibility rules in October 2015
following a complaint by two Dutch professional speed skaters, Mark Tuitert and
Niels Kerstholt. The Commission's concerns are outlined in a Statement of
Objections addressed to the ISU. The sending of a Statement of Objections does
not prejudge the outcome of the investigation.
The Commission's concerns
The Commission takes the preliminary
view that the penalties set out in the ISU Eligibility rules restrict the
commercial freedom of athletes and prevent new organisers of international
speed skating events from entering the market because they are unable to
attract top athletes.If an athlete participates in an unauthorised event, the
athlete faces a range of penalties leading potentially to a life-time ban from
all key international speed skating competitions. The career span of a
professional athlete is considerably limited in time. As a result athletes
cannot risk losing the possibility of participating in events such as the
Olympic Games, the World Championships or the European Championships, as this
would be extremely damaging and possibly even put an end to their speed skating
career.
The Commission is concerned that the
system of penalties set out by the ISU Eligibility rules, as amended at the ISU
Congress in June 2016, remains disproportionately punitive and would prevent
non-ISU affiliated players from organising international speed skating competitions.
If this concern is proven, the ISU Eligibility rules may breach Article 101 of
the Treaty on the Functioning of the European Union (TFEU) that prohibits
anticompetitive practices.
Background
The ISU is the sole body recognised by
the International Olympic Committee (IOC) to administer the sports of figure
skating and speed skating on ice. Its members are national ice-skating
associations. Sporting rules are subject to EU antitrust rules when the body
setting the rules or the companies and persons affected by the rules are
engaged in an economic activity. On the basis of EU Court case law, sporting
rules are compatible with EU law if they pursue a legitimate objective and
if the restrictions that they create are inherent and proportionate to
reaching this objective. This assessment can be performed by national courts,
national competition authorities, particularly vis-à-vis national bodies, and
by the Commission, especially in the case of practices at international level.
Many disputes about sporting rules raise
primarily issues related to governance of the sport, i.e.
relations between different stakeholders belonging or being closely connected
to the structure headed by sports federations. Such disputes can usually be
best handled by national courts rather than by the European Commission. The
same goes for disputes resulting from the application of sporting rules to individuals,
e.g. athletes being sanctioned for breach of relevant anti-doping or
match-fixing regulations, which can be handled by relevant arbitration bodies
or national courts.
Article 101 TFEU prohibits
anticompetitive agreements and its implementation is defined in the Antitrust
Regulation (Council Regulation No 1/2003), which can be applied by the
Commission and by the national competition authorities of EU Member States.
A Statement of Objections is a formal
step in Commission investigations into suspected violations of EU antitrust
rules. The Commission informs the parties concerned in writing of the
objections raised against them. The addressees can examine the documents in the
Commission's investigation file, reply in writing and request an oral hearing
to present their comments on the case before representatives of the Commission
and national competition authorities.
There is no legal deadline for the
Commission to complete antitrust inquiries into anticompetitive conduct. The
duration of an antitrust investigation depends on a number of factors,
including the complexity of the case, the extent to which the undertaking
concerned cooperates with the Commission and the exercise of the rights of
defence.
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