On 8 December 2017, the European Commission decided that the International Skating Union (ISU) rules imposing severe penalties on athletes participating in unofficial speed skating competitions breach EU antitrust law. The ISU must now change these rules. The decision could have a wider impact and affect all sport federations.
The investigation carried out by the DG Competition found out that the eligibility rules applied by the ice-skating federation were imposed despite the absence of threat to legitimate sports objectives. At the same time, those restrictions favour the own commercial interest of the ISU, disregarding the athletes and organisers of other events. The Commission stated that it prevents the creation of innovative competition formats since the organisers are unable to attract elite athletes to their new event. By limiting the development of alternative speed skating competition, it restricts the potential competition on the relevant market, to the detriment of ice-skating fans.
The ISU Eligibility rules are binding on all its members and their affiliated clubs. Because of their binding nature the Eligibility rules have the effect of coordinating the behaviour of the ISU Members. The Commission therefore concluded that those rules constitute a decision of an association of undertakings within the meaning of Article 101 of the Treaty on the Functioning of the EU.
The European Commission also sees a conflict of interest in ISU being both regulator and organiser of sport competitions. In this regard, all ISU decisions should be non-discriminatory and based on transparent criteria.
The Commission required the ISU to stop its “illegal conduct” within 90 days (i.e. by mid-March at the latest). The Commission abstained to impose a fine in this case but - if the ISU fails to comply with the Commission's decision - it would be liable for non-compliance payments of up to 5% of its average daily worldwide turnover.
When assessing the structural impact of this ruling, it seems clear that it is not the Commission’s intention to attack the Pyramidal structure of Sport or even to question the role of the federations in safeguarding the integrity, the proper conduct of sport and in guaranteeing safety and health of athletes. Moreover, the abstention from a direct financial fine shows that the EU acknowledges the different steps already taken by the ISU to change their rules.
However, the application of Art. 101 TFEU constitutes a real threat. Following the rationale of DG COMP, all international and European federations could be qualified as cartels. That interpretation is not acceptable. The Commission has applied the competition rules in a purely economic way and has not sufficiently taken into account the societal role of federations, the existing solidarity mechanisms, the investments in youth and women sport as described in Art. 165 TFEU.