The European Commission has ruled that the International Skating Union (ISU) cannot penalise skaters who take part in competitions not authorised by the ISU, unless it can prove that such a ban is underpinned by a ‘legitimate objective’. Such a legitimate objective includes the protection of athlete health or the prevention of doping. Where a legitimate objective is stated by a sporting body, it must prove that the restrictions are inherent and proportionate to reaching that objective.

The Commission’s decision does not prevent sport from banning athletes from taking part in non-authorised competitions. It requires sport to show that there is a reason, other than commercial considerations, why participation in such competitions is restricted.

The Commission ruled that the ISU eligibility rules are anti-competitive and breach Article 101 of the Treaty on the Functioning of the European Union (TFEU). The ISU will now have 90 days to either abolish its rules, or modify them so that they are based on a ‘legitimate objective’. The ISU said that it would review the decision and issue a statement later today [update: this statement is available here].

‘The ISU eligibility rules restrict competition and enable the ISU to pursue its own commercial interests to the detriment of athletes and organisers of competing events’, ruled the Commission. ‘In particular, the Commission considers that the ISU eligibility rules restrict the commercial freedom of athletes who are prevented from participating in independent skating events. As a result of the ISU eligibility rules, athletes are not allowed to offer their services to organisers of competing skating events and may be deprived of additional sources of income during their relatively short speed skating careers’.

Commissioner Margrethe Vestager said that the way in which sport is organised was not being called into question. ‘We’re not questioning that structure’, she wrote in a statement. ‘And we’re certainly not questioning the right of those federations to do their job of organising the sport. Of protecting the health and safety of athletes, and the integrity and proper conduct of sport. But the penalties these federations impose should be necessary and proportionate to achieve those goals. They certainly shouldn’t be used to unfairly favour the federation’s own commercial interests, at the expense of athletes and other organisers. Sport is a fun, healthy, exciting thing to do. But it’s also a business, and a livelihood for professional athletes. Today’s decision is about that side of sport. It’s about making it clear to sporting federations that the business of sport also has to comply with competition rules.’

As reported by The Sports Integrity Initiative, the Commission opened a formal investigation on 5 October, following a complaint from Mark Tuitert (pictured) and Niels Kerstholt, who wished to participate in IceDerby, a prize money event organised in Dubai. Rule 102.1(b) of the ISU’s Constitution and General Regulations mandates that skaters who wish to take part in ISU events must only take part in ISU events. If they take part in any event not sanctioned by the ISU, they become an ‘ineligible person’, and subject to sanctions ranging from a warning to a lifetime ban under Rule 102.7(d).

IceDerby said that Tuitert and Kerstholt had been threatened with a lifetime ban by the ISU, which argued that the event had not been authorised due to a conflict with its rules on gambling. Under Article 4(h) of the ISU Code of Ethics, skaters must agree to ‘refrain from participating in all forms of betting or support for betting or gambling related to any event/activity under the jurisdiction of the ISU’. IceDerby has yet to issue a statement in response to the Commission’s decision, which was welcomed by Tuitert.

Great and historical news! A wise and import decission with regards to respecting Athletes rights. Thanks @vestager and the @EU_Competition team. And big thanks for helping fight this fight: @BenVanRompuy & @EUAthletes #chancetocompete https://t.co/2YxvuhFp91

— Mark Tuitert (@marktuitert) December 8, 2017

In August 2010, four golfers filed a lawsuit against the Asian Tour’s ban on players taking part in other tournaments. In 2012, the Singapore Supreme Court upheld the complaint, ruling that the Asian Tour’s rules were a restraint of trade. The players were prevented from competing in OneAsia golf events until they paid a fine.