The BCA takes on the FEI
After a 3.5 year-long investigation, the BCA has issued a decision against the FEI in a case concerning the potential restriction of competition arising from the FEI’s rules on unauthorised events.
According to the claimants (2 events organisers, a veterinarian, and 2 judges) the following FEI rules violated competition law:
- the rules on the authorisation of new events, including the rules for series (different events being linked to one another, for instance through prize money) and “clash dates” (when 2 or more events are organised during the same weekend), and
- the penalties for athletes or officials taking part in non-FEI authorised events.
After several intermediate decisions imposing interim measures on the FEI, the BCA and the FEI have come to an understanding on new sets of rules that the BCA does not view as problematic.
These assumptions and outcomes were similar to the EC’s decision in the ISU case. In that case as well, 2 athletes had complained that the rules penalising athletes for participating in an unauthorised event were restrictions of competition. In December 2017, the EC issued a decision establishing the ISU’s infringements of competition law, but did not impose any penalties against the ISU.
Similarities between the 2 cases
- In both cases the rules on the authorisation of new events by an international sports federation and the penalties imposed on athletes (and/or officials) for taking part in non-authorised events came under scrutiny;
- in both cases competition authorities stressed the FEI’s and the ISU’s specific role as the respective regulators of their sports and organisers of events;
- both cases resulted in new rules being adopted by the FEI and ISU.
Differences between the 2 cases
Yet despite the similarities between these 2 cases, differences remain:
- the EC concluded that the ISU:
- had infringed competition law; but
- that it was not necessary to impose a fine; and
- the decision did not contain commitments on new rules from the ISU, who was in fact rather compelled to come up with measures to end the infringement.
- the BCA, on the other hand,:
- stopped its investigation, meaning that no decision was taken on the anti-competitive character of the FEI’s rules; and also that
- no fine could be imposed (as no infringement was found); because
- during the investigation the FEI proposed amending its rules and the BCA deemed that sufficient to lift its concerns.
A new trend in antitrust enforcement?
Given the specifics of both cases, it is premature to declare a new trend of “enforcement without penalty” in antitrust in sports. However, these cases show that sports federations should carefully review their rules on the authorisation of events organised by third parties and on penalties imposed on athletes (and officials) for taking part in non-authorised events. Further, sports federations should note that the BCA continued its investigation on its own motion after all the claimants dropped their complaint.
The latest case in this area is an antitrust complaint in the US by 3 swimmers against the rules of the Fédération Internationale de Natation (FINA).