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Let Skaters Compete Wherever They Want, EU Court Tells Global League

Siding with two Dutch speed skaters, an EU court ruled Wednesday that the International Skating Union has been illegally forcing skaters to compete only in events it sanctions.

(CN) — Siding with two Dutch speed skaters, an EU court ruled Wednesday that the International Skating Union has been illegally forcing skaters to compete only in events it sanctions.

The General Court, a lower EU court based in Luxembourg, said the International Skating Union is breaching the EU's laws against anti-competitive behavior by saying its members must only compete in ISU-approved events or face lifetime bans. 

The ruling marks the first time for the General Court has decided a case that examines whether a sports federation complies with EU competition law, the court said in a news release. As such, the decision could have far-reaching consequences, though the General Court's finding can be appealed to the European Court of Justice, the EU's highest court, where it could be struck down. 

The Switzerland-based ISU is the only skating federation recognized by the International Olympic Committee for the purpose of organizing figure-skating and speed-skating competitions. This puts the ISU in charge of the world's preeminent skating events, including those at the Winter Olympic Games and World Championships. But under its charter, athletes face sanctions and even may become ineligible to compete in ISU competitions if they take part in skating events not authorized by ISU. 

In 2015, two top-level Dutch skaters challenged these restrictions with an antitrust complaint filed with the European Commission, the EU's executive body.

The Dutch skaters, Mark Tuitert and Niels Kerstholt, called it unfair for them to face a lifetime ban by the ISU if they participated in a speed-skating event being organized in Dubai, the oil-rich metropolis in the United Arab Emirates. 

The event, the Dubai Icederby Grand Prix, never got off the ground, mainly because its South Korean organizers could not win approval for the event from the ISU. Initially, the organizers wanted to allow betting on the races, something the ISU frowned upon and said violated its rules, and to use a different sized track from the ISU-approved one. Also, the derby was meant to feature unorthodox races where long-track and short-track skaters compete in mass starts. The project was scrapped after the ISU threatened to ban skaters who participated in the Icederby. 

In 2017, the European Commission ruled against the ISU and said it was breaking antitrust laws by forcing skaters to only compete in ISU-approved events. The commission ordered the ISU to change its eligibility rules or face penalties. The ISU then appealed the commission's ruling to the General Court. 

The ISU did not immediately respond to a request for comment on Wednesday.

In today’s ruling, the court said the ISU is unlawfully restricting athletes and unfairly keeping competitors from organizing events. It also said the ISU was prone to a “conflict of interests” because it both organizes and authorizes skating events. 

“It must be held that that situation is capable of giving rise to a conflict of interests,” the ruling states. The court said the ISU “must ensure, when examining applications for authorization, that those third parties are not unduly deprived of market access to the point that competition on that market is distorted.”

The court noted that there are “very limited income opportunities for the great majority of professional skaters,” and that they feel compelled to abide by the ISU rules to be able to compete in the sport's biggest events. 

“Since skaters cannot miss the opportunity to take part in more important events organized by the applicant, it follows that third party organizers that intend to organize a speed skating event must obtain prior authorization from the applicant if they wish skaters to take part,” the ruling states. 

The court shot down the ISU's arguments that its eligibility rules were necessary because they had “the legitimate objective of protecting the integrity of speed skating from the risks associated with betting.” 

In drawing up its eligibility criteria, the ISU had failed to “explicitly state the legitimate objectives that they pursue,” according to the ruling. The court also said the “vague expressions [of ISU's code of ethics] do not in themselves make it possible to clearly identify the legitimate objectives pursued by those rules.” 

Vague eligibility rules allowed the ISU to have “full discretion to refuse to authorize events that third parties planned to organize,” according to the ruling.

The court said the ISU's criteria for authorizing events was not “clearly defined, transparent, non-discriminatory, reviewable and capable of ensuring the organizers of events effective access to the relevant market.” 

Thus, the ISU failed to prove that its objection to betting on skating events was a legitimate reason for not approving the Icederby event. Even after the Icederby organizers said they wouldn't allow betting on the races, the ISU refused to approve the event. 

The court also rejected the ISU's argument that the Dubai events fell outside the territorial scope of EU courts and laws. As for the ISU's system of “severe and disproportionate penalties” against athletes who take part in non-authorized events, the court said it prevents organizers from inviting skaters for such unauthorized events whether they take place within or outside the EU. 

“Consequently, the eligibility rules are capable of producing immediate, substantial and foreseeable effects in the territory of the European Union,” the ruling states. 

Courthouse News reporter Cain Burdeau is based in the European Union.

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