From Case-by-Case to a General Playbook!
Olfers, Marjan, The International Sports Law Journal
1. According to the European Court of Justice's ruling in the Meca Medina case, the regulatory aspects of sports subject to review against competition law can only be evaluated on a case-by-case basis. In that decision, the European Court of Justice dismissed the concept of "pure sporting rules" as irrelevant to the question of whether EU competition laws apply to sports.
2. In Meca Medina, the European Court of Justice acknowledged that the specific nature of sports must be taken into account, in that competition-restricting effects inherent in the organisation of competitive sporting events do not conflict with the rules of EU competition so long as those effects are proportionate to the legitimate and purely sporting interest being pursued thereby, meaning that the specific elements of each individual case must be considered. Accordingly, following from this decision in the Sports White Book the European Commission cannot formulate any general guidelines for the application of competition law in the sports sector.
This is nonsense, the idea of pure sporting rules, or "sports-inherent" rules must (!) be the guideline for competition law. More to the point, if there is any immunity under application of the free movement rule due to the "sports-specificity" of the rule, then in my opinion, the inevitable consequence is that this rules out unfair restriction of competition under Article 81, EC Treaty, as well as abuse of an economically dominant position under Article 82, EC Treaty, and that the sporting rule rather promotes competition, is efficient, and as such is entirely legitimate. General guidelines can very well be formulated for the sports sector. If we cannot make application of the law any gentler on the sporting sector, shouldn't we at least try to simplify that application?
A. Try to follow the sport-specific rules and distantiate from non-economic grounds within the review framework.
3. In the Dona, Deliege and Lehtonen cases, in which sporting rules such as nationality clauses, selection criteria and transfer periods were reviewed against free movement, the European Court of Justice indicated that the system/practice does not fall under the scope of the free movement provisions if there are non-economic grounds relating to the specific nature and context of [these] competitions, and by which consequently the main concern is sports for sports' sake. For nationality clauses in the event of national competitions, the ECJ rules that "these provisions (Articles 7, 48 through 51 or 59 through 66 (old) of the Treaty) were not incompatible with rules or practice excluding foreign players from participation in certain matches for reasons of a non-economic nature, which related to the particular nature and context of such matches and were thus of sporting interest only, as is, for example, the case between national teams of various countries; this restriction of the scope of the relevant provisions must, however, be restricted to its actual objective;" (1)
4. The Court of First Instance in the Meca Medina matter assumed convergence between free movement and competition law. Any time noneconomic motives or the non-economic nature of sports legislation come into play, the Court of First Instance ruled, there is immunity from the application of both the rules of free movement and the rules of competition. "... That pure sporting regulations do not fall under economic activity, which, according to the opinion of the ECJ, means that they are not covered by the scope of Articles 39 and 49, EC Treaty, therefore also means that they are not covered under the economic competition relationships, so likewise are not covered by the scope of Articles 81 and 82, EC Treaty." (2) In other words, in the view of the Court of First Instance, the immunity for certain sporting rules from application of free movement also applies to the application of competition law. …