This presentation by Ben Van Rompuy, Professor of Law (Leiden University) was made during the discussion “Competition & Sports” held at the 2023 edition of the OECD-IDB Latin American and Caribbean Competition Forum on 29 September 2023. More materials on the topic can be found at https://www.oecd.org/competition/latinamerica. This presentation was uploaded with the author’s consent.

1. Discover the world at Leiden University
Discover the world at Leiden University
Sports Organisations as
Gatekeepers:
Competition Issues
Dr. Ben Van Rompuy | OECD-IDB LAC Competition Forum, Quito, 29.09.2023

2. Discover the world at Leiden University
Overview
• Scope of application
• Principles for assessment
• Jurisdictional issues
1. Competition law and sports
• Monopoly and monopsony power
• Competition issues and remedies
2. Sports associations as gatekeepers

3. Discover the world at Leiden University
• Sports associations engage in wide range of practices
Scope of application

4. Discover the world at Leiden University
Scope of application
• In some jurisdictions: statutory exemptions; collective bargaining
• “Economic” or “commercial”
EFFECT FORM
Commercial
activities
Regulatory
activities

5. Discover the world at Leiden University
Principles for assessment
• Not all practices require special consideration of sporting interests
• Rule of reason
• EU Court of Justice, Meca-Medina (2006): test for regulatory activities
of professional bodies
- Does the practice/rule seek to obtain a legitimate sporting objective?
- Are its restrictive effects inherent to the pursuit of that objective?
- Are its restrictive effects necessary to achieve that objective?

6. Discover the world at Leiden University
Jurisdictional issues
• Mandatory arbitration (by reference)
- Court of Arbitration of Sports, Switzerland
- Limits competence of the courts for all sporting matters
• Often transnational practices >< national remedies

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Gatekeepers
• Leagues
- Licensing requirements / entry fee
• Governing bodies of individual sports
- Functional (quasi-)monopoly + monopsony power
- Typically control access by third parties to the market for the organisation &
commercial exploitation of sporting events
- Pre-authorisation mechanism
- Rules prohibiting participation of members in unauthorised events
• SportAccord (GAISF), IOC, WADA, …

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Competition issues
• Systemic conflict of interest (regulator + market participant)
• Risk of anti-competitive market foreclosure
• Members prevented from offering their services to third parties
• Barriers to entry: effective possibilities for market entrants?
• Case-by-case assessment

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Remedies
Minimum safeguards to obviate risk of anti-competitive exclusion:
• Substantive: approval criteria objective, transparent, and sufficiently
determinate + suitable and necessary to achieve legitimate objectives
• Procedural : to ensure appropriate, reasonable, and non-
discriminatory application
• Sanctions: suitable and necessary
• Effective market access, if sustainable
≠ ‘equal’ opportunities

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Concluding thoughts
• Competition law: subjects private rule-making to meaningful scrutiny
(with due deference to sport associations’ expertise)
= accountability mechanism
• Competition authorities much better placed than courts:
- For structural competition issues >< arbiter of individual sporting disputes
- Jurisdictional hurdles
- Tools and procedures to appraise proportionality
- Positive remedial action: co-design remedies and monitor compliance

11. Discover the world at Leiden University
Discover the world at Leiden University
v
Dr. Ben Van Rompuy
Leiden University
b.van.rompuy@law.leidenuniv.nl
@BenVanRompuy