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(Full archive available upon request)

This interesting link comes from Greece.
(The factual background is intriguing, reminding us why many Greeks are working far from the Motherland!)
Therein, we read that there was a change in the Transportation Code, which apparently did away with ELPA’s influence (heretofore the sole proprietor for both state licensed races and the one who would issue the licenses… something like FIA of old in a way…) and mentioned that licensed motorsports’ races could be conducted after the acknowldgment and preapproval of a Greek motorsports federation (here it was focusing on motorcycle racing)… which the article ironically points out doesn’t exist at this point, and it further ironically points out that it would be too much to expect from the Greek state to recognize officially such a federation, which I gather was what MOTOE was aspiring to be…

So I reckon we’ll be awaiting the news from the administrative court of appeals…

As a sequel, please consider reviewing the elaborate inquiry of MOTOE by Sam Miettinen (2008). Policing the boundaries b/t regulation and commercial exploitation: Lessons from the MOTOE case. International Sports Law Journal. 3/4, 13-18.

Perhaps all this fascinating theory could practically lead to a very attractive result for many:
Creation of many separate regulatory bodies of review, ADR mechanisms for each sport or sport-related commercial practice, and several different means of testing the regulatory monopoly entrusted by states to a single entity, which in most cases heretofore also possesses commercial dominance (indeed, with at least a risk of abuse, which would be sufficient under MOTOE for a violation of Arts 82/86). E.g. an independent body would decide on appeal the decisions by ELPA to reject licensing applications to organize motor sports events, another (could it be the same, i.e. Supreme Sport Court/Arbitral Tribunal that some states provide for?) independent body could serve the same purpose for rejected licenses for sport betting offices issued by the state-run/supported monopoly regulator, etc. Suffice to say that the ECJ would again be the ultimate “decider” in cases e.g. of direct state aid to clubs and sport entities, thus distorting competition and prima facie violating EU Competition Law, with the defenses to be tested.

Thus, the call is open for colleagues to become more actively involved with state actors and sport governing bodies, in pursuit of instrumental appointments that would assure objective, transparent, and non-discriminatory appellate review that imposes obligations and restrictions on the traditional regulatory monopolies, some of whom may eventually consider the separation of regulatory/commercial activities.

Enjoy
Tassos

On Sun, Nov 23, 2008 at 6:30 PM, Tassos Kaburakis wrote:

I strongly encourage you to review the ECJ Grand Chamber decision in

C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio, 1 July 2008

as well as the excellent as usual commentary by Stephen Weatherill in the Special Addendum to ISLJ 2008/3-4 (“Article 82 and sporting ‘conflict of interest’: the judgment in MOTOE”). Prof. Weatherill therein discusses EC Article 86 application as well, which is also dealt in Kaburakis, A. (2008) International Comparative Sport Law – The US and EU systems of sport governance: Commercialized v. socio-cultural model, Competition and Labor Law, International Sport Law Journal, 3-4, 108-127 (in pp 118. 126-127), and in Dedes, P. (2005). The special liquidation of the athletic joint-stock companies (for translation and a full bibliography from the ISLJ comparative article please advise). Links pertinent to the case and related ECJ cases follow below.

Quick points:

– The theory:

Arts 82 and 86 are violated where undertakings exercise special or exclusive rights and abuse dominant positions. Further, said Arts. are violated where such special or exclusive rights may create a situation in which undertakings are led to commit abuses, and where such rights give rise to a risk of an abuse of a dominant position.

– The application:

Even though as we recognise after Meca-Medina not all ISFs/NGBs restrictive policies are violating the EC Treaty per se, the burden is rather heavy, as confirmed and emphatically declared in the MOTOE case. And even though the separation of the regulatory authority from the commercial activity (see FIA example) is not mandated, it most certainly would minimise risks of abuse.

Objective, transparent, and non-discriminatory criteria would serve well, provided of course they would be so deemed after a court’s review of the restrictive practice (i.e. denial of competitor’s license to organise competing events, denial to operate sport betting offices, etc). Most importantly, after the member state’s exclusive rights allowed the (at the very least risk of) abuse by the state-licensed monopoly, some form of Due Process, a review, and means of challenging a negative decision need to be provided.

This obviously would be terrifically applied to many restrictive policies by a sport governing organisation. Some contemporary cases in re: sport betting operators challenging state monopolies are forthcoming (after GambelliPlacanica, and Commission v Italian Republic) and links follow below.

Further many of the heretofore litigated, settled, or unsettled restrictive practices in sport would be dealt with interestingly under this lens and the truly heavy burden as verified in MOTOE.

Lastly, the mostly unexplored in scholarship application of Arts 86, 87 et seq. now command more scholars’ attention. What is examined in Kaburakis (2008, above) and elaborated in Dedes (2005, above) deals with the traditional, now, practice of state “salvation” of financially struggling clubs (motivated frequently by political interests and the long-established history of such clubs that would render non-assistance a political suicide, see samples from Greece, Spain, France, and unsuccessful ones in Italy), thus otherwise violating EU Competition policy, but passing muster due to arguable promotion of the general economic interest (86 par 2) or on socio-cultural grounds (87 par 2).

It would be outstanding if the ECJ would preemptively treat state aid to clubs as well, yet this would be beyond the scope of MOTOE. Nonetheless, MOTOE is the closest we’ve ever come to such application of competition distortion defenses under Art 86 et seq. And indeed, these prospective defenses are pretty strict and impose a heavier burden of proof than what ISFs and state entities have been used to in the past.

The one thought we may ponder is:

– Considering the contemporary financial problems in so many sectors of the economy, thus including sport, clubs (especially the ones which feature the administrators who unfortunately decided to once again overspend beyond their means) may assume the role of political “beggars” (if one wishes to attach such commentary in the cases of US and EU Auto manufacturers, airlines, etc.).

If so, considering MOTOE, and the recent history of ECJ Jurisprudence, we should be able to argue that more competition litigation should be forthcoming by adversely affected competitors, with substantial likelihood of success, in view of MOTOE and Meca-Medina.

Final word of optimism:

The Advocate General Juliane Kokott provides us with confirmation that a combination of EU and US legal education offers invaluable service to our field. For our students and colleagues reference, her bio available here:

The judgment:

A legal person whose activities consist not only in taking part in administrative decisions authorising the organisation of motorcycling events, but also in organising such events itself and in entering, in that connection, into sponsorship, advertising and insurance contracts, falls within the scope of Articles 82 EC and 86 EC. Those articles preclude a national rule which confers on a legal person, which organises motorcycling competitions and enters, in that connection, into sponsorship, advertising and insurance contracts, the power to give consent to applications for authorisation to organise such competitions, without that power being made subject to restrictions, obligations and review.

Some links of interest:

A pending case we need to monitor is

C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator

and suggested ECJ research links herehere, and here.

Sincere wishes

Tassos

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