Eligibility Rules, Sport and Competition: Is the ISU skating on thin ice? by Prof. Erika Szyszczak
In an unusual step, the European Commission sent a Statement of Objections to the International Skating Union (ISU) on 27 September 2016.
The ISU is composed of national ice-skating associations and is the sole body recognised by the International Olympic Committee (IOC) to administer the sports of figure skating and speed skating on ice. The EU competition investigation relates to the eligibility rules of the ISU governing participation in various skating events.
This development is unusual since, as the European Commission acknowledges, most sporting disputes concerned with issues related to the governance of a particular sport or the application of the rules to individuals (anti-doping, match fixing) are handled through the national legal system or through arbitration. As a consequence the sports sector, where pure sporting activities are involved, has achieved an element of autonomy in EU law. However, where sporting rules may have commercial consequences, the economic law of the EU may apply.
The initial investigation began in October 2015, following a complaint by two Dutch professional speed skaters, Mark Tuitert and Niels Kerstholt.
Both skaters challenged the threat by the ISU to bar ice skaters who competed in commercial, well paid, Icederby events run by a South Korean company until 2012. The legal argument raised by the skaters was that the ICU rules compromised the commercial freedom of athletes and the ICU rules prevented new organisers of international speed skating events from entering the market because they are unable to attract top skaters.
Under the ISU rules an athlete participating in an unauthorised event faced a range of penalties, leading potentially to a life-time ban from all key international speed skating competitions. As with many other sports, even a limited ban on participation would leave an ice skater unable to prepare for, and participate in, major events such as the Olympic Games, shortening their competitive skating career.
The European Commission’s investigation will focus on the system of penalties set out in the ISU Eligibility rules, recently amended at the ISU Congress in June 2016.
The European Commission’s initial finding is that the rules remain disproportionate in the punitive sanctions that would prevent non-ISU affiliated players from organising international speed skating competitions. This could be a potential breach of Article 101 TFEU.
The ISU issued a response on 27 September 2016 stating:
“Any allegation that the ISU’s rules are somehow anti-competitive appears to be based on a misplaced understanding of the governance structure of sport and the Olympic movement. The European Union’s founding Treaty as well as the EU institutions have long recognized the autonomous governance structure of sport as being essential to the protection of the integrity, safety and health in sport. These rules benefit sports organizers, sportspersons and spectators.
The ISU reiterates that independent organizers are able to organize international tournaments on the ISU international calendar. Indeed, the ISU recently authorized an event in the Netherlands to be co-organized by Icederby – the organization which initiated the complaint through two Dutch Skaters. As such, there is no basis for the Commission’s claim that organizers are foreclosed from the market.