The Commission of the European Union has opened a formal investigation into International Skating Union (ISU) rules that permanently ban skaters from competitions such as the Winter Olympics, the ISU World and European Championships if they take part in non-ISU events. The Commission is following up a complaint by Mark Tuitert (pictured) and Niels Kerstholt, who wish to participate in Icederby, a prize-money event organised in Dubai at the end of October. The Dutch speed skaters are backed by Professor Ben van Rompuy, of the Asser Sports Law Institute in The Hague.

Rule 102 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 are banned from ISU events for life. The Commission will investigate whether such ISU rules constitute anti-competitive agreements and/or an abuse of a dominant market position, in breach of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), respectively.

‘The Commission will in particular investigate whether ISU rules are unduly preventing athletes from exercising their profession by putting disproportionate and unjustified obstacles in the way of companies not linked to the ISU that want to organise alternative ice-skating events’, read a 5 October media statement. ‘This may prevent alternative event organisers from entering the market or drive them out of business’.

Sporting rules are subject to EU antitrust rules when those affected by them are engaged in economic activity. Since the Dubai event involves prize money, it appears that the ISU rules do involve economic activity. As such, the ISU will be required to demonstrate that its restrictive rules pursue a legitimate objective and if the restrictions created are legitimate and proportionate to reaching that objective.

The ISU expressed ‘surprise and disappointment’ at the Commission’s decision to investigate. ‘As the ISU explained in detail to the Commission, these rules are inherent and proportionate to the integrity of Skating’, read a 5 October statement. ‘This is particularly important when betting is involved, as in the case at hand.  The rules are also crucial for ensuring that skaters’ health and safety are not compromised by unauthorized skating events, a particular concern in speed skating. These legitimate concerns – and not commercial considerations – have always been at the heart of the ISU’s eligibility rules.’

In August 2010, four golfers filed a lawsuit with the Singapore Supreme Court 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. However the circumstances of the ban were different – the players were prevented from competing in OneAsia golf events until they paid a fine.