J. Kornbeck / Brussels comments in an article in the journal Sport and Law “ISU case decided: Loyalty clauses as antitrust infringement” the most recent decision of the European Commission of 08.12.2017 to the antitrust appeal of the Dutch speed skaters M. Tuitert and N. Kerstholt:
The International Ice Skating Union (ISU) has sanctioned the two athletes for participating in ISU-foreign competitions, i.e. events outside the ISU event calendar. Rule 102 of the Association Regulations prohibit participation outside the ISU event calendar. The athletes rightly saw a violation of antitrust law here, the ISU abusing their dominant position, which constitutes a violation of Art. 101, 102 TFEU. The athletes are hampered in their free competition, whereas the ISU cannot justify this regulation by wanting to secure their own income.
In its decision, the EU Commission considers the sanctions of the ISU to be disproportionate within the meaning of Art. 101, 102 TFEU and calls on the ISU to discontinue its unlawful conduct within 90 days and submit a revised version of Rule 102. Kornbeck comments on this decision, although it should be noted that similar cases have already occurred at the national level. These were already addressed by A. Jakob in 2016/240 and assessed in much the same way as the decision of the European Commission. It was to be expected that the top associations in sport, such as the IOC, behave similarly and support the ISU’s view. Likewise, however, that association regulations can continue to be suspected of being a cartel, which has been known since the Bosmann case. The judgment MOTOE from the year 2008 shows also the conflicts of interest. Finally, this complex has not yet been clarified at EU level. The ISU case is the Commission’s first major sports cartel case since 2001 and is particularly noteworthy because both complainants were athletes, unlike in cases previously decided by national antitrust authorities, as the author explains in detail.