The European Commission’s findings in the International Skating Union complaint: Background and lessons for sport
In what is being referred to by some as the most profound decision in the sporting landscape since the Bosman decision of the mid 90’s, and coming off the back of an epic three year struggle by Dutch professional speed skaters Mark Tuitert and Niels Kerstholt, Matthew Graham, coordinator of legal & player affairs with the World Players Association, takes a closer look at the decision and its implications.
The World Players Association, EU Athletes, and the player association movement worldwide, unite in applauding the long awaited decision of the EU Commissioner for Competition, Margrethe Vestager, that was handed down on the 8 December 2017. The overdue findings come some three years after professional Dutch speed skaters Mark Tuitert and Niels Kerstholt filed their complaint with the European Commission, and some two years after the Commission opened its investigation.
The Commissioner’s decision held that International Skating Union (‘ISU’) rules imposing severe penalties on athletes seeking to participate in speed skating competitions not sanctioned by the ISU, violated EU competition law. It is yet another example highlighting that the too often unilaterally imposed and enforced regulations of sports organisations are not beyond the reach of competition law.
The background to the complaint related to efforts by a private company that sought to stage ice skating events without having obtained the approval of the international federation responsible for ice skating, the ISU. The company which was offering significantly more prize money than typically on offer, had been liaising with the ISU, however the ISU refrained from sanctioning the event.
This meant that pursuant to ISU rules the athletes would become ineligible to participate in ISU events (such as the Winter Olympic Games, and World & European Championships) should they choose to compete. As eloquently put in Mark and Niels’ letter to the European Commission, the profound detrimental impact of this on their careers was noted as:
‘Sport is for us more than a leisure activity. It is our profession. We work in an economic sector that is mostly regulated by international sports federations. More often than not, those rules are disconnected from the interests of those that matter the most: the athletes… If we would participate in such events we can expect to be banned for life from all ISU competitions (including Olympic Games, World Championship, etc.). As such, the federation effectively denies our right to participate in alternative events that do not conflict with the official ISU competition calendar.’
As explained by one of Mark and Niels legal advisers, Assistant Professor Ben Van Rompuy of Leiden University, the essence of the complaint as it concerned competition law was that –‘the main premise of the complaint is that the sanction of a lifelong ban cannot be considered inherent and proportionate to the pursuit of any legitimate objective [such a legitimate objective would for instance be protecting the health and safety of athletes]’. It was more specifically alleged:
The rules created ‘virtually insurmountable’ barriers to entry as competitors wishing to enter the market for staging ice skating events could not do so, and
Connectedly, the commercial freedom of athletes seeking to participate in independent events was significantly restricted in the face of the punitive rules.
The Commission’s Decision:
The decision of the Commission confirmed that ISU practices restricted the commercial freedom of athletes, and prevented private organisers from developing their own competitions. The Commission noted:
‘…[T]he severe penalties the International Skating Union imposes on skaters also serve to protect its own commercial interests and prevent others from setting up their own events. The ISU now has to comply with our decision, modify its rules, and open up new opportunities for athletes and competing organisers, to the benefit of all ice skating fans.’
Whilst the Commission opted not to impose a fine on the ISU, it has given it 90 days to stop its illegal conduct and effectively ‘abolish or modify its eligibility rules so that they are based only on legitimate objectives (explicitly excluding the ISU's own economic interests)’.
Context and implications:
Some have compared the significance of the Commission’s decision to Jean-Marc Bosman’s epic struggle, supported by FIFPro the world footballers’ union, to exercise his freedom of movement rights in professional football in the 1990’s.
The case however more closely resembles the battle by Tony Greig, and his fellow players, against the Test and County Cricket Board in relation to the emergence of World Series Cricket in the late 1970s. In that case, the players were threatened with bans by the governing bodies from participating in first class cricket if they remained contracted with Kerry Packer’s breakaway competition.
The Court held that the ban preventing players from exercising their profession was an unlawful restraint of trade, with the impact of the decision being that it not only accelerated growth in player wages, but it allowed for the game of cricket to innovate and enter the modern era. The legacy of this is still felt today with the emergence of exciting forms of the game such as the popular 20-20 format, and for the most part collectively bargained terms and conditions of employment undertaken by the affiliates of the Federation of International Cricketers' Associations (FICA).
Here, there is an important historical lesson for not only the ISU, but the myriad of other sports that continue to impose similar rules to take heed of. In that despite their rhetoric, sport has nothing to fear from engaging in meaningful dialogue with athletes and their representatives, and opening itself up to competitive practices and innovation. Indeed, this historically represents a win-win for all involved.
Turning to the immediate implications, it is worth reiterating that the relevance of the case extends far beyond the sport of ice-skating. As noted by outgoing Secretary General of EU Athletes, Jean Francois Reymond, whose organisation played a pivotal role in supporting Mark and Niels through the #chancetocompete social media campaign, the decision potentially can:
‘Change the way sport will be regulated and organised in the future. It gives a unique opportunity for athletes to sell their talent during monetised competitions, not always organized by international federations. Google, Facebook or Netflix could be interested in investing in sporting events outside of the scope of sporting federations. Rather than being sponsors, they could become the creator of the event itself and directly cooperate with athletes on things such as the format of competitions, sharing of the revenue, the number of events etc... Which is totally impossible for athletes today under the current structure of sport.’
Here, the case is also another timely reminder, that the European sporting model that has long been connected to references to the ‘specificity of sport’ is by no means absolute. Indeed, as noted in various policy statements by the European Commission, respect for principles of good governance – that extends to social dialogue and collective bargaining, is an essential precondition to claims of sporting specificity. In the absence of respect for such standards, sporting organisations will continue to find their rules subject to intensified scrutiny before European regulators and courts. A point reflected in remarks from Dr Antoine Duval of the Asser Instituut, another key adviser to Mark and Niels, who notes:
‘…[Sports governing bodies] need to care about three main aspects when devising and implementing rules that have potentially a restrictive effect on competition: participation of the affected actors (especially the athletes) in the rule making process; reasonable and proportionate sanctions in case of violation of these rules; and secure the existence of impartial avenues for redress to challenge potentially abusive applications of the rules.’
Aside from the comparisons and implications of the decision, what is true is that the ISU case is merely unfortunately the latest in a decades long struggle by players and athletes to exercise greater freedom of choice in the pursuit of their profession.
The acute difficulties experienced by players and athletes in realising this fundamental right saw it included as Article 5, ‘the right to work’, in the recently unveiled Universal Declaration of Player Rights (Declaration). The struggle of Mark and Niels, and many others, also emphasises the imperative for well governed sporting environments (Article 1) and the right to access and pursue sport as a career (Article 2), both also enshrined in the Declaration.
The Declaration draws upon the generations worth of experience the worlds’ leading player associations have in representing athletes by articulating a cogent set of rights international sports must adhere to, as they exist under international labour and human right standards.
To this end, it is high time that sports heed the win-win historical lesson articulated above, and World Players trusts that the ISU will take advantage of the 90 day grace period granted by the European Commission to embark upon this process. It should not take another George Eastham, Curt Flood, Tony Greig, Jean Marc Bosman, Mark Tuitert or Niels Kerstholt to make immense professional sacrifices in order to reiterate this.