Skating on thin ice: The International Skating Union & EC Competition Laws

On 27th September  2016, the EC Commission issued a preliminary finding that the International Skating Union (ISU) were in breach of violating antitrust rules by banning skaters from participating in international events that are not approved by the ISU.

The investigation by the Commission commenced following a complaint by Dutch skaters, Mark Tuitert and Niels Kerstholt, stating that the threat of a lifetime ban prevented them from pursuing their careers and that the ISU placed unreasonable barriers in the way of other companies looking to hold events and invite participants.

Under ISU rules, skaters are permanently banned from participating in international events such as the Olympics and World Championships if they participate in other international speed skating events that have not been authorised by the ISU.

The EC has stated that they are concerned that such policies prevent other organisations from competing because they are unable to attract top talent, due to the ban.
Commissioner, Margrethe Vestager stated:

"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."

What do the antitrust rules state?

The rule that applies here is Article 101 which states:

"The following shall be prohibited as incompatible with the internal market: 

All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market."

What is the ISU's response to the Commission's findings:

The ISU issued their own statement in response to the Commission's findings and advised (unsurprisingly) that the EC's claims were unfounded. They stated that they were confident that they would be able to show that their rules comply with EU competition law and protect sports organisers, sportspersons and spectators. Further, the rules are required to protect the integrity, safety and health of the sport and to adopt a neo-liberal and deregulated approach would destroy Olympic values.

What's next? 

The ISU will now respond to the charges made against them by the EC, setting out their arguments for why the rules are justified and do not breach competition laws. The EC will then, in turn, consider those arguments before issuing their ruling.

Could this have wider implications for other sports? 

Yes, this decision is likely to affect other sports governing bodies. For example, the International Basketball Federation Europe banned eight nations from EuroBasket 2017 after it was established that they had a relationship with the Euroleague (the continent's premier league contest) which is an unauthorised contest. The governing body stated that any federation that supported and competed in the Euroleague would lose their right to participate in senior national team competitions.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

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