What can sports governing bodies do to comply with EU antitrust rules while maintaining territorial exclusivity?
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ARTICLE
What can sports governing bodies do to comply with EU antitrust rules while maintaining territorial exclusivity? Jacob Kornbeck1
© T.M.C. Asser Instituut 2020
Abstract Territorial exclusivity clauses are so ubiquitous and ingrained in the statutes and regulations of sports governing bodies (SGBs) that, until now, they seem to have gone largely unnoticed by members of the sporting community. In recent years, however, they have been challenged by means of antitrust complaints and occasional litigation: a trend that is currently showing no signs of abating. By revisiting these decisions, and the pattern emerging from them, the paper aims to discuss what SGBs may do to comply with antitrust rules while maintaining territorial exclusivity. Solutions available include “splitting” or “unbundling,” the “revocation of statutory rules” and, finally, “light-touch application and sanctions renunciation.” An exploration of challenges identified and solutions found in the European Union is provided, and further contributions from other parts of the world, based on the legal requirements in force in other jurisdictions, are encouraged. Keywords Antitrust law · Competition authorities · European Union (EU) · Sports governing bodies (SGBs) · Exclusivity · Loyalty clause
1 Introduction 1.1 Problem formulation If “a fish would be the last to discover the existence of water,”1 athletes might be the last to detect the presence of the “one federation principle”2 of territorial exclusivity underpinning much of what they (or at least most of them) do. Large portions of the sports world obey to the “one federation principle”—a concept particularly established in German legal scholarship as far as explicit semantics are concerned,3 though it exists de facto in many other places, even if there is no particular terminus technicus denoting it—according to which, for each sport and for each geographical catchment area, there can only be one sports governing body (SGB). Although some sports have traditionally done without it (e.g. boxing), it seems fair to say that most The author is an EU official, yet opinions expressed are strictly personal and do not render official positions of any EU institution. He is also an external lecturer at the German Sport University (DSHS), Cologne. * Jacob Kornbeck [email protected] 1
Brussels, Belgium
sports worldwide operating at any noticeable scale accept the authority of SGBs to impose monopoly and demand 1
Cf. Pugh (2003), p. 15. “It was once said that ‘a fish would be the last to discover the existence of water’; an apt metaphor for the limited awareness of language that is sometimes found in social work.” 2 Pijetlovic (2015), p. 37: “The described ‘one-federation-per-sport’ structure reveals the apparent monopolistic position of the governing bodies that regulate everything from professional to amateur and youth sports. They are able to pass the rules and regulations which affect the way in which clubs buy and sell players, dispose of their commercial rights, conduct thems
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