On May 16, 2023, the Italian Competition Authority (“AGCM” or “ICA”) launched an investigation to determine whether the Italian Football Federation (Federazione Italian Giuoco Calcio, or “FIGC”) abused a dominant position in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU) by blocking affiliated amateur soccer associations (“amateur organizations”) and amateur teams from participating in junior soccer competitions of a friendly/amateur nature (i.e., nonprofessional competitions) organized by the amateur associations without the prior authorization of the FIGC[1].
The investigation was launched in response to a complaint filed by CNS Libertas, an amateur organization approved by CONI (the Italian arm of the International Olympic Committee, or “IOC”) that is affiliated with the FIGC. CNS Libertas alleged that the FIGC—the sole sports federation recognized by CONI/IOC to govern the sport of soccer in Italy—followed an overarching strategy to expand its dominant position in the organization and marketing of professional soccer competitions in Italy to the amateur market. Specifically, the contested conduct consists of (i) threatening CNS Libertas and other affiliated amateur organizations and teams with disciplinary proceedings and sanctions (including by deferring them to sports courts) for failing to request the FIGC’s prior authorization for the organization of and participation in amateur competitions; and (ii) amending sports regulations to introduce prior authorization requirements that were not expressly provided for amateur competitions. This conduct was framed as an attempt on the part of the FIGC to discourage amateur players from affiliating with CNS Libertas and other amateur organizations, thus increasing affiliations with the FIGC, despite the significantly higher fees amateur players must pay to the FIGC as compared to fees for affiliation with amateur organizations.
After the complaint was filed, the ICA heard CNS Libertas and associated teams to learn more about their relationships with the FIGC, the rationale and incentives for being affiliated with the FIGC, and the competitive dynamics and functioning of the market for organization of amateur competitions. Significantly, the ICA found that amateur teams have an interest in being (and remaining) affiliated with the FIGC in addition to being affiliated with amateur organizations because the FIGC organizes professional competitions for junior players (ages 13 to 17) and makes monetary contributions and awards to affiliated teams whose players are promoted to professional categories. Based on this information and EU and national case-law, the ICA preliminarily concluded that the FIGC—which is in a dominant position in the organization of professional soccer competitions by virtue of special powers to regulate and coordinate soccer games granted to it by CONI—appears to have employed a strategy designed to hinder or prevent amateur organizations from organizing events and competitions of a promotional and friendly/amateur nature in the youth sector, at the national, regional, and province level, for the purpose of expanding its position in this market and increasing its affiliated membership.
Based on these preliminary findings, the ICA opened an investigation for breach of Article 102 TFEU, because the FIGC’s conduct affects the entire national market for organizers of amateur competitions and thus has an impact on cross-border commerce within the EU. Further, on May 24 the ICA conducted dawn raids at the premises of the FIGC.
Comments
This is not the first ICA investigation into the conduct and statutory rules of an official sports federation entrusted by the IOC and CONI to govern (and market) a sport in Italy.[2] With this new investigation, the ICA is signaling that it intends to be particularly active in addressing interplay between competition law and sports, along the lines drawn by the case-law of the Court of Justice of the European Union (CJEU). The forthcoming judgements of the CJEU in International Skating Union (C-124/21 P) and Superleague (C-333/21) [3] will provide more guidance on whether and to what extent EU competition law may stop official sports organizations from hindering third parties from organizing and participating in unauthorized professional or amateur competitions.
This article has been published also on Concurrences.com on May 16, 2023.
[1] AGCM Decision of May 16, 2023 in Case A562 (available here).
[2] See Cases A30 – A.I.C.I., decision n. 788 of November 18, 1992; A378 – FEDERITALIA/FEDERAZIONE ITALIANA SPORT EQUESTRI (FISE), decisions n. 18285 of May 15, 2008, n. 22503 of June 8, 2011 and n. 27947 of October 8, 2019; A396-GARGANO CORSE/ACI, decision n. 19946 of June 11, 2009; I812 – F.I.G.C. REGOLAMENTAZIONE DELL’ATTIVITÀ DI DIRETTORE SPORTIVO, COLLABORATORE DELLA GESTIONE SPORTIVA, OSSERVATORE CALCISTICO E MATCH ANALYST, decision n. 27249 of June 27, 2018; I861 – FEDERAZIONE ITALIANA PALLAVOLO/VINCOLO SPORTIVO, decisions n. 30314 of September 27, 2022 and 30492 of February 28, 2023.
[3] Opinion of Advocate General Rantos in Case C-124/21 P, International Skating Union v. European Commission; Opinion of Advocate General Rantos in Case C-333/21, European Superleague Company SL v. UEFA and FIFA.
