Antitrust Challenges to Sports Governance: EU and US Perspectives

Abstract

Both in the European Union (‘EU’) and the United States (‘US’), antitrust law offers a unique and potentially powerful tool to curb the private regulatory power of sports governing bodies and leagues (‘sports organizations’).

The application of antitrust rules and principles to various business activities connected to sport, such as the sale of tickets or the licensing of merchandising or media rights, is generally uncontroversial. By contrast, antitrust scrutiny of matters of “internal” sports governance has always been met with fierce opposition. Sports organizations consider this to be part of their autonomous preserve. And, more importantly, there is an often voiced concern that enforcers would not pay due regard to the distinctive features of professional sport and its structures, which all too easily can be misunderstood as regulatory “monopolies” and “collusion between competitors”.

This chapter address these criticisms, arguing that both EU and US antitrust law are in principle well-equipped to subject organizational sporting rules and practices to review. The relevant analytical frameworks essentially impose but one constraint on sports organizations: they should be able to demonstrate that their rules and practices are genuinely designed to achieve, in a manner that is not manifestly disproportionate, legitimate objectives in the interest of sport. There are, however, important differences between both jurisdictions, primarily in terms of enforcement and procedure, which impact the effective use of antitrust challenges to sports governance as an accountability mechanism.

Keywords: EU competition law, EU law, antitrust, sports governance, sports law, sporting rules, private regulation, rule of reason, EU-US comparison

JEL Classification: K21, K29, L40, L41, L83