Belgian Competition Authority lists the sports sector as one of its 2022 priorities

#competitionlaw #sports #BCA

Tuesday 31 May 2022 - The Belgian Competition Authority (“BCA”) recently announced its enforcement priorities for 2022. In addition to the traditional topics and sectors that have been on the BCA’s ‘radar screen’ in recent years - like telecommunications, the digital economy, and the pharma sector - the BCA has this year also listed competition law in the sports sector as one of its priorities.

Sports SUBJECT TO competition law scrutiny

The BCA notes that “for centuries, sports and games have been an important binder in society.” While the BCA has acknowledged sports’ major social role, it has also explicitly stressed the sports sector’s economic characteristics, which bring it within the ambit of competition law: “The sports world is today - at least as far as certain branches are concerned - an important economic sector. Just as fair play can and must be expected of athletes, competition law must also be complied with by sports administrators, sport unions and sports federations.”

The BCA has now announced in its priorities’ note that it will “pay attention to the enforcement of competition rules in the sports sector, with a focus on fair access to sports leagues, the organisation of sports competitions and events, no poaching agreements and the rise of e-sports and (online) sports betting.”

BUILDING ON EXISTING CASE LAW

While this is the first year that the BCA has explicitly named the sports sector as one of its priorities, the BCA’s focus on sports should not come as a surprise. Indeed, as the BCA has itself noted, “in the past, the BCA has investigated several competition law breaches in various sports disciplines.” For instance:

In 2020, the BCA imposed an interim measure on the Belgium Bumper Pool Association (“Belgische Golfbiljartbond” or “BGB”) concerning the bumper pool balls that can be used in official competitions and matches.ⁱ The BCA gave the BGB two choices: (i) to suspend the obligation to exclusively use the bumper pool balls from one specific bumper pool ball producer as from the start of the 2020-2021 season until the BCA’s final decision; or (ii) to have the authorised bumper pool balls determined for a maximum of two playing seasons on the basis of a non-discriminatory tender from the start of the 2020-2021 season. In both situations, the BCA authorised the BGB to stipulate that the balls must have certain objectively determinable characteristics that make them functionally suitable for playing bumper pool and do not create a statistically significant advantage for players who have practised with a particular brand of ball (concerning ball weight, diameter, material, and rotation speed).
Also in 2020, the BCA ruled on two requests for interim measures in the football sector. First, the BCA ruled on football club Royal Excelsior Virton’s request to impose interim measures on the Royal Belgian Football Association (“RBFA” / KBVB).ⁱⁱ On the one hand, the BCA decided that the RBFA’s refusal of a licence to RE Virton for the ongoing season 2020-2021 was based on grounds that were prima facie compatible with competition law, as RE Virton had, despite several invitations, not used the possibility of offering a bank guarantee or other instrument that would have provided safeguards to the RBFA regarding the club’s continuity during the 2020-2021 season. However, the BCA imposed an interim measure on the RBFA for the new season, requiring that RE Virton had to receive the opportunity to participate again in the 1st class B division for the 2021-2022 season. In 2020, the BCA also ruled that the Pro League’s decision to not-in-time declare the 2019-2020 season closed due to the coronavirus crisis measures, which resulted in the relegation of the football club Waasland-Beveren to division 1B, was prima facie compatible with competition law.ⁱⁱⁱ
The BCA has also issued several decisions regarding showjumping. At the heart of the first legal proceedings were the FEI’s (Fédération Equestre Internationale) rules prohibiting the participation by athletes, horses and officials in unauthorised (i.e. non-FEI recognised) events (including those arranged by the competing organiser, Global).^iv The BCA ultimately decided not to impose a fine on the FEI, as the FEI amended its rules and allowed Global to organise its own events. The second proceedings flowed from the first. The FEI’s decision to allow Global to organise its GCL tournament prompted an athlete and a stable to argue that the system for selecting the athletes participating in the GCL events was discriminatory. After several decisions and judgments back and forth between the BCA and the courts, the BCA finally decided not to impose interim measures on the FEI and Global.^v

The BCA is not the only competition authority pursuing cases in the sports sectors. Several other national competition authorities, as well as the European Commission, have been or are investigating restrictive practices, abuses of dominance or grants of state aid in the sports sectors.^vi

Also, it should be noted that competition law arguments have been invoked successfully for a long time in sports litigation¹ and sports arbitration² in general. This being said, the world of sports justice and sports arbitration in particular at times still seem to grapple with this very specific area of law, giving rise to ‘mixed’ case law. The renewed interest by the ABC in sports may very well lead to a spike in new sport competition law cases.

CONCLUSION

The BCA listing the sports sector as one of its 2022 priorities serves as a useful reminder to all actors in the sports sector to be aware of national and international competition law rules.

For this article, the ATFIELD team was able to rely on the dedicated assistance of Carmen Verdonck, Partner at Altius (This email address is being protected from spambots. You need JavaScript enabled to view it.) and Beatrijs Gielen, Managing Associate at Altius (This email address is being protected from spambots. You need JavaScript enabled to view it.).

ⁱ Decision n° ABC-2020-V/M-04 of 23 January 2020 in case MEDE–V/M–19/0041, available at https://www.bma-abc.be/nl/beslissingen/20-vm-04-bvba-hector-cue-sports-belgium-vzw-belgische-golfbiljart-bond.

ⁱⁱ Decision n° ABC-2020-V/M-36 of 19 November 2020 in case CONC-V/M-20/0012.

ⁱⁱⁱ Decision n° ABC-2020-V/M-26 of 2 July 2020 in case CONC–VM–20/0017.

^iv The different decisions regarding the request for interim measures are to be found on the BCA’s website: https://www.abc-bma.be/fr/decisions/15-vm-23-gcl-ttb-vs-fei. The principal decision being the decision n° ABC-2015-V/M-23 27 July 2015 in case CONC-V/M-15/0016.

^v Decision n° ABC-2018-V/M-33 of 28 September 2018 in case CONC-V/M-17/0037, available at https://www.abc-bma.be/fr/decisions/18-vm-33-lisa-nooren-et-henk-nooren-handelsstal-sprl-fei-gcl-ttb.

^vi For more on this topic, see our earlier post here.

¹ Recent example : Commercial Court Leuven, 30 november 2021, Rechtskundig Weekblad 2021-22 | nr. 29, 2022.

² Recent example : BCAS 17 December 2021, VZW K. RACING CLUB GENK 322 v. VZW PRO LEAGUE and OH LEUVEN CVBA, case 246/21.