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ISU considers options as EC issues landmark ruling

The International Skating Union is considering an appeal to the European courts after the European Commission ruled its statutes are in breach of EU antitrust law.

Following a lengthy investigation, the EC has decided that the ISU must change its rules after stating they impose “severe penalties” on athletes participating in speed skating competitions that are not authorised by the sport’s world governing body.

The regulations currently allow for lifetime bans for athletes who compete in events that are not authorised by the ISU. The case dates back a number of years, with the ISU having expressed its “surprise and disappointment” in October 2015 after it was confirmed that the EC was to launch an investigation.

The development came after Dutch Olympic speed skaters Mark Tuitert (pictured) and Niels Kerstholt turned to the EC in June 2014 in an effort to stop the ISU from imposing bans on skaters that compete in big-money ‘Ice Derby’ events. Run by Korean event organiser Icederby International and held in Dubai, Ice Derby racing offered unprecedented prize money in an effort to attract the world’s best skaters.

Tuitert and Kerstholt said the ISU had threatened lifetime bans for athletes that opted to take part in Ice Derby events. Such bans would prevent skaters from competing at future winter Olympic Games, World Championships and World Cups. The EC responded by launching an investigation into the ISU rules to establish whether the regulations are fair, stating that lifetime bans “may prevent alternative event organisers from entering the market or drive them out of business”.

In its ruling on Friday, the EC found that by imposing such restrictions, 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. In particular, the Commission considered that the ISU eligibility rules restrict the commercial freedom of athletes who are prevented from participating in independent skating events, specifically citing the short lifespan of the career of a skater.

The EC also said that the ISU rules have limited the development of alternative and innovative speed skating competitions, and deprived ice-skating fans from following other events. The ISU introduced certain changes to its eligibility rules in June 2016. Despite these, the Commission found that the system of penalties set out by the eligibility rules remain disproportionately punitive, anti-competitive and breach Article 101 of the Treaty on the Functioning of the European Union (TFEU).

The Commission decision requires the ISU to stop its “illegal conduct” within 90 days and to refrain from any measure that has the same or an equivalent object or effect. In order to comply, the ISU can abolish or modify its eligibility rules so that they are based only on legitimate objectives.

In particular, the Commission said the ISU should not impose or threaten to impose unjustified penalties on athletes who participate in competitions that “pose no risk” to legitimate sports objectives. While the Commission did not consider it necessary or appropriate to impose a fine in this case, it added that if the ISU fails to comply it would be liable for non-compliance payments of up to five per cent of its average daily worldwide turnover.

Commissioner Margrethe Vestager, who is in charge of competition policy, said: “Ice skating is just one of many sports in Europe that's organised through this pyramid structure, where a single federation organises competitions from local to international level.

“We're not questioning that structure. 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.”

In response, the ISU has said the decision fails to consider the specific nature of sport by putting commercial interests ahead of the principles of integrity, health and safety. The ISU said its eligibility rules have never been used to further the commercial interests of the Union or to block independent organisers.

In a statement, it said: “The ISU cannot accept the proposition that the ISU should allow skaters to compete in unauthorised events where their organisers refuse to adhere to the ISU’s standards. Without the enforcement of these standards there is no safeguard for the protection of the health and safety of skaters and the integrity of the sport at these unauthorised events.”

Citing the specific example of the Icederby events, the ISU said it had warned skaters about the risks of participating due to the “close links” of the organiser to betting in Asia and the fact that the organiser had “unequivocally” refused to follow the ISU’s Code of Ethics.

The ISU also stressed that it has never imposed a lifetime ban on an athlete competing in an unauthorised competitive event. It added: “The ISU has shown throughout the procedure its readiness for commitments to resolve the case in an amicable manner.

“It takes note of the Commission’s decision not to impose a fine and the Commission’s positive willingness to engage in a constructive manner on these issues and its recognition of the value of an authorisation system and related eligibility rules for protecting integrity, health and safety as well as the good functioning of the sport.  The ISU will now review the decision carefully and reserves its right to file an appeal before the European Courts.”