Straying Offside? Exceptions to no-poach rules in sports considered

The recent Opinion of Advocate General Emiliou in CD Tondela v Autoridade da Concorrência [1] (“AdC”) serves as a reminder that context still matters in competition law – even when dealing with typically clear cut “by object” restrictions such as no-poach agreements (where firms agree not to solicit each other’s employees). While the Opinion does not challenge the general presumption that such agreements are inherently anticompetitive, it does illustrate just how unusual the circumstances must be to displace that starting point.

In this case, the combination of a global pandemic and the distinct dynamics of professional football led Advocate General Emiliou to argue for a more nuanced, context-sensitive assessment. His Opinion is particularly relevant for specialised markets, such as professional sports, in times of crisis, where the broader objectives of cooperation may not squarely align with standard competitive logic. However, it is important to note that such exceptions are likely to remain very rare.

The facts

The case concerns an agreement concluded between several Portuguese football clubs during the COVID-19 pandemic. In the face of widespread contractual instability, with some players unilaterally terminating contracts amid pandemic-related uncertainty, clubs reportedly agreed not to recruit each other’s departing players. The AdC viewed the agreement as an unlawful restriction of competition, arguing that it unlawfully limited labour market mobility.

In his May 2025 Opinion, AG Emiliou acknowledged that no-poach arrangements typically exhibit “all the characteristics to be considered prima facie restrictive of competition ‘by object’.” AG Emiliou is clear in his endorsement of the prevailing view that no-poach agreements between competitors are generally anticompetitive by object. He notes that such arrangements are, in essence, a form of market sharing – specifically, the allocation of labour, which is explicitly covered by Article 101(1)(c) TFEU.

Citing enforcement practice, academic commentary and relevant case law such as FIFA v Commission [2],  he observes that these agreements undermine normal competitive dynamics by “locking in” employees, creating a “freezing effect” on contractual terms. This, he explains, leads to a suboptimal allocation of human resources, diminished innovation and downward pressure on wages, all harms that affect not only the input market but often spill over into output markets as well. In his view, the economic rationale behind most no-poach agreements leaves little doubt as to their inherently restrictive nature.

The Advocate General therefore expressed “no difficulty” in concluding that the economic logic of most no-poach agreements is inherently anti-competitive, but contended that such agreements should not be automatically presumed unlawful when they arise in exceptional circumstances and serve legitimate objectives.

Reassessing by object: key factors in the analysis

AG Emiliou identified several contextual factors which, in his view, militated against the agreement in question being deemed restrictive by object against this backdrop:

1. Exceptional circumstances. The agreement was concluded during the COVID-19 pandemic, with the objective of ensuring that the 2019/2020 seasons could be completed, despite the interruption and delays, without compromising the integrity and fairness of the tournament. The AG referenced the European Competition Network’s March 2020 joint statement, which recognised that temporary limited cooperation between competitors may be permissible where necessary to address crisis conditions. He also highlighted that the Portuguese Government adopted temporary measures permitting sports associations to adapt their regulations for the 2019/20 season in light of the pandemic.

2. Limited scope and duration. The agreement was time-bound, covering only the remainder of the disrupted 2019/20 season, and applied solely within Portugal. The AG contrasted this with the broader and longer-term restrictions examined in FIFA v Commission, which imposed enduring restrictions on cross-border mobility in sport.

3. Legitimate sporting objective. The purpose of the agreement was to preserve the fairness and integrity of the sporting competition during the exigencies of the pandemic. Clubs aimed to maintain the integrity of the league by avoiding opportunistic transfers and preserving squad continuity. Emphasising that sports leagues operate under different dynamics from traditional product markets, the AG remarked that “[t]he wildest dream of any club […] is not to send all its competitors out of the market and become a de facto monopolist.” Rather, the AG found that competitive balance is essential to the product of professional sport itself, and inter-club rivalry sustains consumer interest.

Against this backdrop, AG Emiliou advised the Court that a no-poach agreement concluded during the COVID 19 pandemic by professional sports clubs, in agreement with their national sports association, should not be classified as restrictive by object, if its genuine rationale was to preserve the fairness and integrity of the sports competition affected by the pandemic. [3]

Key takeaways

The Opinion serves as a timely reminder that context remains a crucial consideration in by object analysis under Article 101(1) TFEU – but only at the margins. Far from weakening the general presumption, the Advocate General’s reasoning reinforces the view that no-poach agreements will, in almost all cases, amount to by object restrictions of competition law. That presumption was only displaced in this case due to an exceptional convergence of factors: a narrow, time-limited agreement reached in the midst of COVID-19 related uncertainty, within the distinctive framework of professional sport. While the Opinion marks a note of caution against blanket enforcement approaches that ignores essential context, it also confirms just how rare such exceptions will be. For businesses, the message is clear: absent similarly extreme facts, no-poach agreements remain high-risk and are likely to be treated as inherently anticompetitive.

Importantly, this Opinion is not a carte blanche for employers to coordinate hiring practices. The broader enforcement environment remains highly active. In the UK, the CMA has made labour market enforcement a headline priority for 2024-25. In Portugal, the AdC imposed a fine exceeding €3 million on the Inetum Group for participating in a no-poach agreement earlier in 2025. [4] Meanwhile, as recently as 2 June 2025, the European Commission issued its first no-poach decision in labour markets, fining the food delivery companies Delivery Hero and Glovo €329 million. [5]

The Opinion is not legally binding on the Court, which has yet to issue its own judgment. 

Footnotes

[1] https://curia.europa.eu/juris/document/document.jsf?text=&docid=299652&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1
[2] Case C-650/22 Fédération internationale de football association (FIFA) v BZ
[3] The Advocate General opined that the agreement may instead fall within the Meca Medina framework. Under this doctrine, even agreements that restrict competition may be unlawful if they pursue legitimate sporting objectives and are necessary and proportionate to achieving them.
[4] https://www.concorrencia.pt/en/articles/adc-fines-inetum-group-anti-competitive-practices-labour-market
[5] https://ec.europa.eu/commission/presscorner/detail/en/statement_25_1381