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On the 30 May 2012, the Irish Competition Authority (the
"Authority") announced that Show Jumping Ireland
("SJI") had agreed to amend an alleged anticompetitive
rule which prevented its members from competing at unaffiliated
show-jumping events with a prize fund in excess of
€50/£50, and with potential penalties for
non-observance.
The Authority had initially formed the opinion that the rule
amounted to a decision of an association of undertakings, which was
likely to restrict the participation of SJI members at unaffiliated
show-jumping events and the organisation of such unaffiliated
events in Ireland. The Authority further considered that the
rule was disproportionate and was, accordingly, likely to infringe
section 4 of the Competition Act 2002 (as amended) and Article 101
of the Treaty on the Functioning of the European Union
("TFEU").
However, SJI co-operated with the Authority's
investigation and agreed to amend the rule in order to address the
Authority's concerns. The amendment of the rule means
that members of SJI may now participate in unaffiliated events with
a prize fund greater than €50/£50, without being
penalised for so doing, provided that the unaffiliated event
concerned (i) has signed up to health and safety standards
specified by SJI; and (ii) has adequate insurances in place.
Accordingly, it is clear that the Authority looked unfavourably on
an outright ban on its members participating in events organised by
any competitor to SJI. However, it would appear that the
Authority was prepared to accept arguments related to the need to
ensure that competitors in such events were appropriately protected
from a health and safety perspective.
It has been ninety years since Mr Justice Oliver Wendell Holmes
Jr. decided in Federal Baseball Club of Baltimore, Inc. v.
National League of Professional Baseball Clubs that the US
Sherman Antitrust Act did not apply to Major League Baseball
because, broadly, baseball did not constitute interstate commerce
and was merely "a form of amusement". However, more
recently, we have witnessed an ever-increasing reliance on
competition claims in challenging the rules, procedures and
decisions of national sports governing bodies ("NGBs")
and international sporting federations ("ISFs").
NGBs and ISFs are "undertakings" for at least part of the
time (i.e. when they engage in economic activity). NGBs are
usually associations of clubs and ISFs are usually associations of
NGBs. Further, the circumstances by which sport is governed
are inherently monopolistic and competition regulators like
tackling problem-causing monopoly situations.
Accordingly, it is clear, from decided EU cases such as
Meca-Medina and MOTOE (the Greek motorcycle
case), American Needle v. AFL in the United
States and Hendry v. WPBSA in the UK, that
decisions of NGBs and ISFs are not immune from challenge under the
competition rules. Further, the relatively recent entry into
force of Article 165 TFEU which provides, inter alia, that
the EU shall contribute to the promotion of sporting issues, whilst
"taking account of its specific nature" does not
alter the position. The autonomy of NGBs and ISFs to govern
their respective sports is subject to compliance with the
competition rules, with the recent decision of the Authority being
yet another case in point.
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