The Competition College decision
On 27 July 2015, the Belgian Competition Authority ("BCA") imposed provisional measures on the Fédération Equestre internationale ("FEI"), the international governing body for all Olympic equestrian (horseback riding) disciplines.
The Global Champions League and Tops Trading Belgium, both active in the organization of equestrian competitions around the world, had complained that the exclusivity clause introduced in 2012 in the FEI’s General Regulations infringed Belgian and EU competition law. The exclusivity clause prohibited athletes and horse-owners from participating in any FEI approved competition if they had participated in any non-FEI-approved competitions in the six months preceding the event.
Because of the exclusivity (and related) clauses, the complainants claimed that they were unable to organize a new team competition (called the Global Champions League). No athlete or horse-owner would want take part in such a competition if they would be excluded from participating in FEI approved competitions, since the FEI competitions are the only events eligible to affect their international rankings and qualification for the Olympic Games.
The BCA considered that the exclusivity clause would, prima facie, be liable to infringe Articles 101 and 102 TFEU (and their Belgian equivalents). The BCA regarded the case at hand as a matter of urgency and used its powers to order partial suspension of the exclusivity clause (before taking a final decision on the merits).
The Brussels Court of Appeal judgment
The FEI appealed the BCA decision before the Brussels Court of Appeal seeking annulment and immediate suspension of the BCA decision. On 22 October 2015, the Court dismissed the FEI’s application for suspension.
While there was uncertainty whether the new Belgian Competition Law of 2013 would be favorable to parties seeking provisional measures, this second decision to that effect seems to alleviate such suspicions.
The decision also shows that exclusivity clauses in the rules imposed by sports organizations will continue to be scrutinized by (national) competition authorities and courts. Other examples include a 2012 judgment by the Swedish Market Court in relation to the national Automobile Sports Federation, and a recent investigation opened by the Spanish authority concerning the national basketball association's rules. In a similar vein, the European Commission recently opened a formal investigation into alleged anti-competitive restrictions imposed on speed skaters by the International Skating Union.