An update on competition law and sports in Europe and the UK

In recent years, the sports industry has come under greater scrutiny from both competition authorities and private enterprises to address concerns such as sports governance[1], sports agents fee caps[2], replica kits[3], and issues surrounding sports broadcasting[4]. More recently, there has been a growing trend of athletes using competition law as a means to address grievances, with recent claims relating to unlawful restrictions of athletes’ earnings and governing bodies dictating tournament and tour schedules.

Historically, these complaints have focussed on anti-competitive behaviour in the football world. However, this bulletin will also highlight the application of competition law in other sports, namely tennis, basketball, and cycling. This article provides an update on the regulation of sports governing bodies and so-called breakaway leagues, and illustrates how the key issue underpinning the complaints and investigations stems from the autonomy and regulation of governing bodies.

Breakaway leagues

Post-Brexit, it is becoming apparent that the UK, and England in particular, is diverging in its approach to dealing with the issue of self-regulation of football governing bodies. The Football Governance Act has been in the pipeline for a number of years, but finally received Royal Assent in July of this year. The act establishes a new regulator, the Independent Football Regulator (“IFR”), to cover the top five tiers of men’s English football. This has largely been hailed as a much-needed change that will aim to protect and promote the financial soundness and resilience of clubs and English football, as well as safeguard the heritage associated with English football.

However, from a competition law perspective, it adds to a long line of discussion around the ability of clubs and athletes to participate in so-called breakaway leagues. The Government has sought to justify the prevention of football clubs joining a “prohibited competition” on the grounds that such leagues “do not have the support of the fans” and “threaten the heritage or sustainability of English football”[5]. The Act puts in place various considerations the IFR must have regard to, including that the competition is merit-based and operates on the basis of fair and open competition.

Such concerns came to the forefront following the announcement of the proposed European Super League (“ESL”). The ESL would have operated in a semi-closed format, with 15 Founding Clubs guaranteeing their position in the league, and 5 teams qualifying to join on an annual basis. This sparked criticism from across the political spectrum in the UK, with the Labour party asking the Competition and Markets Authority (“CMA”) to investigate the plan and the Conservative party – which was then in government – announcing that it would develop its plans for a fan-led review into the regulation of football in England. The subsequent review cited the ESL proposal as the “final crisis”[6] resulting in the need for such review, which paved the way for a new regime of regulation to be brought into play.

The proposed ESL was also criticised by FIFA and UEFA, the international and European governing bodies of football, respectively. Both organisations threatened sanctions against any clubs or players who become involved in the breakaway league. This prompted the European Superleague Company, the Spanish entity seeking to organise the ESL, to bring an action in Spain. The Spanish Court referred the case to the EU Court of Justice (“CJEU”) for a preliminary ruling, to determine, inter alia, the interpretation of Articles 101 and 102 of the TFEU, in the context of FIFA and UEFA’s rules on requiring their prior approval to organise interclub football competitions.

The CJEU determined that the prior approval rules were contrary to EU competition law as there was no framework in place for the rules to be suitably “transparent, objective, non-discriminatory and proportionate” and that without such framework in place for making decisions on the approval of interclub football competitions, it constituted an abuse of a dominant position[7].

Whilst this ruling was regarded as having the potential to increase competition in the sporting world across Europe, the creation of the IFR in England marks a clear divergence post-Brexit.

The breakaway league saga has continued to rumble on. Following the CJEU ruling and a subsequent judgment by the referring Spanish national court applying the CJEU ruling[8], A22 Sports Management, who were involved in the promotion of the ESL, have sought to revive their plan for a new league: the Unify League. The Spanish competition authorities have also opened an investigation into UEFA, following a complaint by A22 Sports Management, in respect of an agreement between UEFA and nine football clubs, aimed at restricting those clubs from organising or participating in non-UEFA European competitions, and any measures taken by UEFA to ensure compliance with this agreement[9].

Similar concerns have arisen in respect of basketball, where the incumbent operator of the men’s top-level basketball league in Great Britain, Super League Basketball (“SLB”), commenced proceedings in the High Court of England and Wales against the governing body for basketball in Great Britain, British Basketball Federation (“BBF”) for breaches of competition law. The claim relates to BBF’s refusal to issue Governing Body Endorsements to clubs for international players who require a visa, unless SLB accepts that such endorsements will be limited to one year. Governing Body Endorsements are important for the functioning of elite sports as they act as confirmation to the Home Office for the International Sportsperson visa route that the elite sportsperson or coach is internationally established and will make a significant contribution to the sport at an elite level in the UK.

SLB alleges that BBF’s limitation on the validity of Governing Body Endorsements to one year renders SLB’s competitions and clubs unviable, and referred to BBF’s decision as putting SLB’s clubs at a “competitive disadvantage to any rival league favoured by BBF”[10]. This is because, whilst SLB is the incumbent operator of the men’s top-level basketball league in Great Britain, an alternative operator will take over from the start of the 2026/2027 season. Despite this, and as accepted by BBF, SLB will continue to operate as a rival league. BBF has subsequently filed a counterclaim against SLB, alleging that SLB, as the incumbent operator, abused its position to seek to stifle the development of a competitive market due to its actions during the tender process for the subsequent operating licence[11]. This claim shows a different angle to concerns about breakaway leagues as the harm complained of is not a direct ban on the existence of an alternative league, but instead an action of a governing body which might by its nature render the operation of the alternative league unviable.

In the tennis world, a recent complaint to the European Commission similarly highlights concerns around the prevention of new tournaments from being organised, to the detriment of players and spectators alike. The complaint was filed by the Professional Tennis Players Association (“PTPA”), a tennis player advocacy organisation founded by top tennis players, against the four governing bodies that oversee tennis globally. The complaint, which has also been filed with the CMA in the UK, explains how the use of commonly known restrictions, such as the use of non-compete provisions, prevents the creation of competing tournaments. This is reinforced through restrictions which, the complaint alleges, by their nature have the effect of allowing the governing bodies to control the market for services of professional tennis players – for example, by not allowing players to accumulate ranking points at non-sanctioned tournaments, thereby encouraging players to only compete in authorised tournaments[12].

Sanctions on athletes

Related to the creation of breakaway leagues is the imposition of penalties and sanctions on individual athletes for participation in competitions which are not authorised by the relevant governing body.

One such case arose in the skating world, where two speed skaters filed a complaint with the European Commission against the world governing body for figure and speed skating, the International Skating Union (“ISU”). The complaint concerned the ISU’s “Eligibility Rules” and challenged the lawfulness of the ISU being able to impose bans (including lifetime bans) on skaters who participated in ice-skating competitions which were not authorised by the ISU. This was of course of fundamental importance to skaters, as a ban would prohibit them from participating in ISU-authorised events (such as the World Championships) which provide the opportunity to qualify for the Winter Olympics.

The European Commission ultimately found[13] that such rules infringe Article 101(1) of the TFEU by both object and effect as they prevented athletes from competing in non-ISU events, which consequently also prevented the organisation of skating events that rivalled the ISU’s events as athletes would not risk falling foul of the ISU’s Eligibility Rules.

Both the EU General Court and the CJEU dismissed ISU’s appeals and confirmed the unlawfulness of the ISU’s regulations. The CJEU, handing down its judgment on the same day as it did in the ESL case, accepted that the ISU can ensure compliance with its rules by way of sanctions, but that such rules must be transparent, objective, non-discriminatory and proportionate[14].

More recently, a similar complaint was filed with the European Commission in February of this year, challenging the practices of the world governing body for cycling, the Union Cycliste Internationale (“UCI”). The complaint alleges that the UCI breached Articles 101 and 102 of the TFEU in its regulation of bike trial cycling, and includes allegations that UCI imposed disproportionate sanctions on riders for taking part in unregistered cycling events[15]. The alleged behaviour goes back to 2022, when the UCI sought to discourage riders from competing in the (unaffiliated) BikeTrial International Union's European Championships by sending letters to the riders directly before the Championships were due to take place[16].

It may be alleged that UCI’s regulations, which were last modified before the CJEU ruling in the ISU appeal, fall foul of competition law given the wide range of fines and suspensions applicable to riders and teams for participation in unaffiliated events, coupled with the limited guidance provided as to the applicability of such sanctions.

Final remarks

It is apparent from the above that more athletes are looking to use competition law as a means to tackle issues within their respective sport, with the complaints filed so far providing a clear demonstration of how the autonomy and self-regulation of governing bodies is intertwined with the behaviours complained of. Whilst the CJEU rulings in the ESL and ISU cases are considered as landmark cases in this sphere, it appears we may have some interesting regulatory decisions and judgments on the horizon.