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From Antitrust Law Daily, December 8, 2017

EC orders freeze on International Skating Union eligibility rules penalizing speed skaters

By Jeffrey May, J.D.

Just two months before the opening of the 2018 Winter Olympic Games, the International Skating Union (ISU)—the exclusive international sport federation recognized by the International Olympic Committee (IOC) to administer the sports of figure and speed skating—has been ordered by the European Commission (EC) to refrain from enforcing rules that prevent speed skaters from participating in competitions, such as the Olympics, if they take part in events not approved by the ISU.

Today, the EC announced that ISU rules imposing severe penalties on athletes for participating in speed skating competitions that are not authorized by the ISU are in breach of European Union antitrust law. The ISU has been ordered change these rules. Within 90 days, the ISU must abolish or modify its eligibility rules so that they are based only on legitimate objectives (explicitly excluding the ISU's own economic interests) and that they are inherent and proportionate to achieve those objectives, according to the EC. The ISU was directed not to impose or threaten to impose unjustified penalties on athletes who participate in competitions that pose no risk to legitimate sports objectives. ISU rules on authorization of third party events must be based on objective, transparent, and non-discriminatory criteria and not be intended simply to exclude competing independent event organizers. The EC did not impose a fine.

Following an investigation that was disclosed in 2015, the EC determined that, despite rule changes in 2016, the system of penalties set out by the eligibility rules remains disproportionately punitive and prevents the emergence of independent international speed skating competitions. Among other things, the ISU maintains the discretion to impose penalties on speed skaters participating in competitions that are not approved by the ISU, including penalties of up to a lifetime ban from all major international speed skating events, even if the independent competitions pose no risk to legitimate sports objectives, such as the protection of the integrity and proper conduct of sport, or the health and safety of athletes. These practices enable the ISU to pursue its own commercial interests to the detriment of athletes and organizers of competing events, according to the EC.

ISU reaction. The ISU is considering an appeal. In a statement, the ISU said that it "cannot accept the proposition that the ISU should allow Skaters to compete in unauthorized events where their organizers refuse to adhere to the ISU’s standards."

According to the ISU, one example of its conduct found improper by the EC was its decision to warn skaters about the "risks of participating in a planned unauthorized event in Dubai due to the close links of the organizer to betting in Asia and the fact that the organizer had unequivocally refused to follow the ISU’s Code of Ethics." The ISU contends that it acted at all times in a responsible manner.

MainStory: TopStory Antitrust

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