Provisional text

delivered on 15 May 2025 (1)

Case C‑133/24

CD Tondela – Futebol, SAD,

Clube Desportivo Feirense – Futebol, SAD,

Liga Portuguesa de Futebol Profissional (CA/LPFP),

Académico de Viseu Futebol Clube, Futebol SAD,

Os Belenenses – Sociedade Desportiva de Futebol, SAD,

Boavista Futebol Clube, Futebol SAD,

Sporting Clube de Braga, Futebol, SAD,

Sporting Clube da Covilhã – Futebol, SDUQ, Lda,

Estoril Praia – Futebol, SAD,

Gil Vicente Futebol Clube – Futebol, SDUQ, Lda,

Leixões Sport Clube, Futebol, SAD,

Clube Desportivo de Mafra – Futebol, SDUQ, Lda,

União Desportiva Oliveirense – Futebol, SAD,

Futebol Clube de Paços de Ferreira, SDUQ, Lda,

Futebol Clube de Penafiel, SA,

Portimonense Futebol, SAD,

Rio Ave Futebol Clube – Futebol SDUQ, Lda,

Santa Clara Açores – Futebol, SAD,

Varzim Sporting Club – Futebol, SDUQ, Lda,

União Desportiva Vilafranquense, Futebol SAD,

Futebol Clube de Famalicão – Futebol SAD,

Associação Académica de Coimbra – Organismo Autónomo de Futebol, SDUQ, Lda,

Moreirense Futebol Clube – Futebol, SAD,

Marítimo da Madeira, Futebol, SAD,

Vitória Sport Clube – Futebol, SAD,

Futebol Clube do Porto, Futebol, SAD,

Sporting Clube de Portugal – Futebol, SAD,

Sport Lisboa e Benfica, Futebol, SAD

Autoridade da Concorrência

(Request for a preliminary ruling from the Tribunal da Concorrência, Regulação e Supervisão (Competition, Regulation and Supervision Court, Portugal))

( Reference for a preliminary ruling – Competition – Article 101 TFEU – Professional football – National league – Concepts of anticompetitive ‘object’ and ‘effect’ – COVID‑19 pandemic – No-poach agreement – Judgment in Meca-Medina (C‑519/04 P) )

I.Introduction

In a number of recent cases – namely, ISU, (2) Superleague, (3) Royal Antwerp (4) and FIFA (5) – the Court had to review the compatibility with the EU competition and internal market provisions of certain regulations adopted by international or national sports associations.

The present case is a natural follow-up to those cases. Indeed the dispute in the main proceedings concerns a no-poach agreement, concluded by the football clubs playing in the Portuguese football league’s first and second divisions, in agreement with the national football association, during the COVID‑19 pandemic. In order to assess its compatibility with Article 101 TFEU, by its questions, the referring court essentially asks the Court to provide further guidance on the concept of restriction of competition ‘by object’ and on the scope of the principles devolving from the Court’s ‘Meca-Medina case-law’. (6)

Largely similar issues are also raised by two other references for a preliminary ruling – those in Cases C‑209/23, RRC Sports, (7) and in C‑428/23, ROGON and Others (8) – in which I will deliver my Opinion today. The present Opinion should, thus, be read together with those other Opinions. For the sake of judicial economy, and in order to assist the readers, I shall attempt to avoid unnecessary repetitions in the three Opinions and, to that end, will make a number of cross-references between them.

II.Facts, procedure and the questions referred

The Liga Portuguesa de Futebol Profissional (the Portuguese Professional Football League; ‘the LPFP’) is a private-law not-for-profit association whose role is to support and regulate professional football activities in Portugal, and whose ordinary membership consists of sports clubs. The LPFP organises men’s professional football competitions, including the Primeira Liga (First Division) and the Segunda Liga (Second Division).

In the 2019/2020 season, 18 teams took part in the First Division and 13 in the Second Division. During that season, on 30 January 2020, the World Health Organization declared the COVID‑19 outbreak to be a public health emergency of international concern and, on 11 March 2020, to be a pandemic.

On 12 March 2020, the Portuguese Government adopted several measures aimed at containing the risk of the virus spreading. On the same day, the LPFP decided upon and announced the indefinite suspension of the First and Second Divisions, with 10 fixtures still to play.

Owing to the worsening of the situation, on 18 March 2020 the Portuguese authorities declared a state of emergency (successively extended until 2 May 2020).

On 21 March 2020, the LPFP and the Sindicato de Jogadores Profissionais de Futebol (Union of Professional Football Players; ‘the SJPF’) set up a COVID‑19 Monitoring Committee and began negotiations to ensure the sustainability of the sport in both sporting and financial terms.

On 7 April 2020, the LPFP and the SJPF each issued a press release on the status of their negotiations. In its press release, the LPFP indicated, first, that it had received the SJPF’s agreement on a package of legal measures intended to be incorporated into the collective labour agreement applicable to professional football players (‘the CCT’), including the extension of employment contracts and player loan or transfer contracts until the end of the 2019/2020 season, understood to be the date on which the last official match of that season would ultimately be played. The LPFP then specified that no agreement had been reached with the SJPF on the financial issues under discussion, which included the possibility to agree on a salary reduction. This lack of agreement was also referred to by the SJPF in its press release of the same day. Lastly, the LPFP recalled that, in the absence of such an agreement, clubs remained free, among other things, to resort to simplified temporary unemployment or to enter into individual negotiations with their players.

On the same day, the LPFP and the clubs participating in the First Division, represented for the most part by their respective presidents, took part in a videoconference, following which the LPFP issued a press release entitled ‘Presidents of [First Division] clubs establish rule for unilateral terminations’. In that press release it was announced that ‘no club [would] hire a player who unilaterally terminate[d] his employment contract, citing difficulties caused by the COVID‑19 pandemic or by any exceptional decision arising from it, and in particular by the extension of the sporting season’. The following day, some of the clubs participating in the Second Division issued a press release announcing their intention to subscribe to the rule agreed on by the clubs in the First Division.

At European level, on 7 April 2020, the Fédération internationale de football association (FIFA) – which had set up a working group to address the regulatory questions raised by the pandemic – published the document entitled ‘COVID‑19 – Football Regulatory Issues’. In that document, FIFA envisaged, among other things, that national football associations should be authorised to change the dates of their respective seasons as well as those of the periods for player registration. FIFA also proposed that clubs and players be encouraged to work together to reach agreements on salary deferrals or reductions or, alternatively, that agreements reached between clubs and players be put on hold during the period of suspension of the season.

As regards the implementation of the competition rules during the health crisis, on 23 March 2020 the European Competition Network issued a joint statement in which it acknowledged the possible need for cooperation between businesses.

On 23 April 2020, the Portuguese Government published a decree-law establishing a set of exceptional and temporary measures in the field of sport, including the authorisation granted to Portuguese sports associations to amend their regulations during and for the duration of the 2019/2020 season, in order to deal with the difficulties caused by the COVID‑19 pandemic. Subsequently, on 30 April 2020, the authorities adopted a resolution establishing a strategy for lifting the containment measures, which included the possibility of resuming the 2019/2020 season in order to complete the competitions.

On 4 May 2020, the LPFP, the SJPF and the Associação Nacional de Treinadores de Futebol (National Association of Football Coaches) concluded a memorandum of understanding on the duration of contracts and sports relationships. That memorandum referred, inter alia, to the ‘atypical and exceptional’ situation caused by the COVID‑19 pandemic and the need to safeguard the competitions while respecting the principles of integrity and sporting merit. The memorandum provided that: (i) the 2019/2020 season would end on the day following the last official match of the competitions; and (ii) sports contracts concluded between clubs and players set to expire during the current season would be deemed to be automatically extended until the end of the season. The terms of the memorandum were later integrated into the CCT.

On 26 May 2020, the Autoridade da Concorrência (the Portuguese Competition Authority; ‘the AdC’) imposed an interim measure to immediately suspend, for a period of 90 days, the agreement to not recruit or hire football players – from other clubs in the First and Second Divisions – who unilaterally terminated their employment contracts (‘the agreement at issue’). On 2 June 2020, the LPFP and the clubs concerned stated that they agreed with the interim measure.

On 28 April 2022, the AdC issued a final decision in the case which found the agreement at issue to be an anticompetitive agreement in infringement of Article 9 (‘Agreements, concerted practices and decisions by associations of undertakings’) of Lei n.º 19/2012, de 8 de maio, que aprova o novo regime jurídico da concorrência (Law No 19/2012 of 8 May 2012 adopting the new legal framework governing competition), and Article 101 TFEU, and imposed financial penalties on the undertakings involved.

Twenty-eight of those undertakings challenged the AdC decision before the Tribunal da Concorrência, Regulação e Supervisão (Competition, Regulation and Supervision Court, Portugal). In those proceedings, the national court is thus required to verify, inter alia, whether the agreement at issue (9) is prohibited by Article 101(1) TFEU. Harbouring doubts as to the proper interpretation of that provision, that court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Does [an agreement such as the agreement at issue] constitute a rule of sporting interest for the purposes of the case-law in Meca-Medina …, in the circumstances described in this request for a preliminary ruling?

(2)For the purposes of the case-law arising from the judgments [in Wouters and in Meca-Medina], may a rule, arising from [an agreement such as the agreement at issue], and having the characteristics and objectives, and applying in the circumstances, described in this request for a preliminary ruling, be regarded as proportionate and appropriate and therefore, in accordance with Article 165 TFEU, compatible with Article 101(1) TFEU?

(3)Does Article 101(1) TFEU preclude an interpretation to the effect that an agreement having the characteristics and objectives, and applying in the circumstances, described in this request for a preliminary ruling, [such as the agreement at issue], may be classified as a restriction of competition by object on the ground that it presents a sufficient degree of harm to competition?’

III.Analysis

By its three questions, the referring court wishes to know whether an agreement such as the ‘no-poach’ agreement by which the main football clubs in the Portuguese First and Second Divisions agreed not to sign, from other clubs, professional football players who would unilaterally terminate their employment contract on account of issues arising from the COVID‑19 pandemic or from any exceptional decision adopted as a result of it, in particular to extend the season, can (i) be classified as an agreement of an association of undertakings that is restrictive of competition ‘by object’, for the purposes of Article 101(1) TFEU, and (ii) fall within the scope of the Meca-Medina case-law.

I shall start my analysis with the third question referred (A), before turning to the first and second questions, which can be examined together (B).

A.The third question

By its third question, the referring court essentially asks the Court whether a no-poach agreement, concluded during the COVID‑19 pandemic by all (or nearly all) the football clubs participating in a national league in agreement with the national football association, with the characteristics referred to in point 19 above, should be considered to give rise to a restriction ‘by object’ for the purposes of Article 101(1) TFEU.

In order to answer that question, I shall first clarify the relevant framework of analysis (1), before turning to the specificities of the form of agreement at issue in the main proceedings (2).

1.A rather elusive framework of analysis finally clarified

Article 101(1) TFEU prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.

Only a few years ago, Advocate General Bobek found it surprising that well over sixty years from the entry into force of the Treaty of Rome, a key concept included in Article 101(1) TFEU was still uncertain and thus required further clarification from the EU Courts. (10) Indeed, it can hardly be disputed that, at least until recently, the concept of ‘restriction by object’, and the distinction between that concept and the concept of ‘restriction by effect’, remained rather elusive. (11)

Arguably, that is clearer now, after the Court – sitting as the Grand Chamber – has, with its judgments in ISU, in Superleague and in Royal Antwerp

, provided clear guidance on that subject. It did so by largely consolidating the (rather rich) case-law that, in previous years, its chambers had produced on the topic. It seems to me that three main considerations were behind that case-law: (i) avoiding formalism in the definition of ‘by object’ restrictions; (ii) ensuring a restrictive interpretation of that concept; and (iii) establishing a clear distinction between restrictions ‘by objet’ and those ‘by effect’. In the following sections, I will first define the concept of restrictions ‘by object’ (a), and then explain how such restrictions ought to be established (b) and (c).

(a) What is a restriction ‘by object’?

It is by now well established that the concept of anticompetitive ‘object’ must be interpreted strictly. (12) It refers solely to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition for the view to be taken that it is not necessary to assess their effects. Indeed, certain types of coordination between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition. (13)

The expression ‘sufficient degree of harm’ should not, however, be understood as a quantitative threshold. (14) As the Court explained in the judgment in Superleague, restrictions ‘by object’ include not only forms of collusive conduct ‘which are particularly harmful to competition, such as horizontal cartels leading to price fixing, limitations on production capacity or allocation of customers’, but also other types of conduct which, ‘without necessarily being equally harmful to competition, … may also be considered, in certain cases, to have an anticompetitive object’. (15) That is the case, inter alia, of certain types of horizontal agreements other than cartels, (16) or of certain types of vertical agreements. (17)

The term ‘sufficient degree of harm’ should, thus, be understood as relating to a qualitative characteristic of the agreement or other form of collusive behaviour. To constitute a restriction by object, the agreement must have a manifest anticompetitive economic rationale. In other words, it must be clear that, from an economic point of view, the objective purpose of the agreement conflicts with the interests enshrined in Article 101 TFEU. (18) That is why, in those situations, the authorities can take the view that they have sufficient information to determine that the conduct in question infringes Article 101(1) TFEU, without having to carry out a counterfactual analysis to establish its effects on the market. (19)

The economic rationale of an agreement should be confused with neither the awareness of infringing the competition rules nor the subjective intention of doing so, by the undertakings concerned. (20) Neither of them is a decisive factor in establishing an infringement of Article 101 TFEU, although – if proven – they can naturally be taken into account to assess the anticompetitive nature of the agreement. (21)

As the judgment in BIDS shows, the undertakings in question may well be acting in order to pursue some ultimate aim which they perceive as being legitimate (in casu, to reduce overcapacity in the industry). However, even a potentially well-intentioned action is immaterial if the object and means of the cooperation agreed for that purpose are, by their very nature, anticompetitive (in casu, adoption of a mechanism intended to encourage the withdrawal of competitors). (22)

That interpretation of Article 101(1) TFEU to some extent reflects – as far as I understand it – the original choice of the drafters of the Treaty, which intended to prohibit both agreements that were entered into with the very aim of restricting competition (restrictions ‘by object’) and those that, although entered into for another reason, nonetheless had restrictive effects on competition (restrictions ‘by effect’). (23) The current interpretation, thus, builds on that original approach, taking into account the obvious fact that the undertakings involved are usually legal persons and, consequently, it is not always realistic, and it may also be rather hard, to investigate their (subjective) intentions.

Moreover, although the penalties that can be imposed by the authorities fall within the ‘criminal sphere’ for the purposes of the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, EU competition law differs from the hard core of criminal law. (24) The authorities need not establish a psychological element of the anticompetitive behaviour, only a material one, to hold the undertakings liable for the infringements.

(b) How to establish a ‘by-object’ restriction (I)

The Court has made clear that, in order to determine whether a given form of conduct constitutes a restriction ‘by object’, three aspects must be examined: (i) the content of the agreement, (ii) the economic and legal context of which it forms a part and (iii) its objectives. (25)

The examination of the content of the agreement – which is, naturally, the starting point for the analysis – concerns the subject matter of the collaboration set up by the undertakings involved or, in other words, the mechanism created by them. As the Court stated, it may be necessary, ‘to examine its various aspects in order to determine whether the collusion in question has characteristics enabling it to be linked to a form of coordination between undertakings which must be regarded, by its very nature, as harmful to the proper functioning of normal competition’. (26) Put simply: how does that agreement operate? Does it correspond to a type of conduct which, as we know, is typically harmful?

As regards the economic and legal context of which the conduct in question forms part, the Court held that ‘it is necessary to take into consideration the nature of the products or services concerned, as well as the real conditions of the structure and functioning of the sectors or markets in question’. (27) Both economic factors (for instance, existence of barriers to entry and expansion, market concentration, competitors’ strength, suppliers’ and buyers’ countervailing power, and so forth) and legal factors (for instance, applicable legislation, related rules issued by self-regulation bodies, existence of similar agreements in the market which may produce cumulative effects, and so forth) may be relevant in that context. It mostly depends on the circumstances of the specific case.

For example, it may be that ‘it is only where certain specific conditions are satisfied that it can be presumed that certain forms of coordination … are harmful to the proper functioning of normal competition’. (28) Similarly, it is possible that, despite given conduct being typically harmful, in a given market there is just no competition that can be restricted. (29) In some cases, there may also be the need to examine how the relevant market has evolved over time to determine whether a given practice may, despite not being anticompetitive when first established, have subsequently been maintained with a view to pursuing an anticompetitive objective. (30)

With respect to the objectives pursued by the conduct in question – the last element of the analysis and, for obvious reasons, a crucial one in this context – a determination must be made of the immediate and direct aims which that conduct seeks to achieve from a competition standpoint. (31) Put differently, the authorities should try to identify the primary economic reasons for the cooperation between the undertakings in question. (32)

In addition, as set out in point 29 above, although the parties’ subjective intention is not a necessary factor in determining whether an agreement is restrictive by object, that factor may be taken into account where relevant. For example, it would be unreasonable not to take into account internal documents and other evidence which show that the parties’ staff were aware that the legality of the conduct in question was highly dubious and provided highly misleading representations with the aim of causing public authorities to make an error. (33)

Having clarified the above, the next question – of a more practical nature – is how those three sets of elements should actually be assessed, in order to determine whether or not given conduct has, as its very object, the restriction of competition.

Once again, that depends on the specificities of each case. It seems to me that, according to recent case-law, there are two main lines of analysis which the authorities may take.

(c) How to establish a ‘by-object’ restriction (II)

A first and more ‘traditional’ line of analysis is typically adopted where the agreement in question appears to belong to a category of agreements whose harmful nature is well known and generally accepted: for example, price-fixing, output limitation and market-sharing. Indeed, in those cases experience – that is, economic analysis and past administrative and judicial practice – confirms that the agreements are usually anticompetitive. (34)

Accordingly, where the examination of the content of the agreements reveals that, prima facie, the agreement constitutes (what is often referred to as) a ‘naked restriction’, (35) then the examination of the legal and economic context and of the objectives of the agreement need not always be very detailed. (36) To confirm the anticompetitive nature of the agreement, the authorities must only verify that there are no specific circumstances that could cast doubt on the presumed harmful nature of the agreement in question. (37) In other words, the authorities should make sure that the information gathered in their investigation, including that brought to their attention by the undertakings concerned, confirms that the agreement in question too, just like most agreements in the same category, is inherently anticompetitive. (38) This type of analysis provides the competition authorities with a clear, administrable, bright-line procedural framework against forms of conduct which are manifestly harmful, thereby saving those authorities administrative costs whilst minimising the risk of errors. (39)

A second type of analysis concerns the agreements in respect of which a ‘safe’ prima facie evaluation of their object cannot be made, for example because they have significant original features, or because they appear to belong to a category of agreements which is not usually problematic. In such cases, the authorities will normally need a more in-depth analysis of the content, context and objectives of the agreement in question in order to determine whether it has an anticompetitive object. Indeed, recent case-law, such as in the ‘pay-for-delay saga’, (40) shows that an anticompetitive object is not necessarily excluded by the fact that there is no prior administrative or judicial practice in relation to similar conduct.

However, in those cases too, experience may be of help in defining the true object of an – on its face innocuous – agreement. The concept of ‘experience’ cannot be understood in a narrow and static sense. What matters is that, thanks to well-established methods of legal and economic analysis, the authorities have a clear understanding of the legal mechanism created by the agreement and knowledge of its likely economic impact on the market. It is indeed possible that, stripped to its basics, an agreement conceals, or is from an economic viewpoint equivalent to, a naked restriction or other practice whose harmful nature is reasonably clear. (41)

Moreover, ‘experience’ is a concept that ‘necessarily evolves over time, in the light of the increased knowledge and experience acquired by the competent administrative and judicial authorities, the creation of more sophisticated tools of analysis, and the development of economic thinking’. (42) This logic, obviously, cuts both ways: experience may take certain forms of conduct out of the ‘object box’ but may also bring some new ones into it.

It is against these principles that I shall now turn to the issues raised by the agreement at issue in the main proceedings.

2.No-poach agreements and restrictions ‘by object’

At the outset, I should point out that, in the context of the procedure referred to in Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, the role of the latter is limited to interpreting the provisions of EU law referred to it, in this case Article 101(1) TFEU. Therefore, it is not for the Court of Justice but for the referring court to determine in the end whether, taking account of all of the information relevant to the situation in the main proceedings and the economic and legal context of which it forms a part, the agreement at issue has as its object the restriction of competition. However, the Court, when giving a preliminary ruling, may, on the basis of the information available to it, provide clarification designed to give the national court guidance in its interpretation in order to enable it to decide the case before it. (43)

In the light of that, I shall try to assist the Court in providing guidance to the referring court with regard to two main issues: first, whether no-poach agreements can generally be regarded as being inherently anticompetitive and, second, whether the specific circumstances surrounding the conclusion of the agreement at issue should be of significance in the assessment.

(a) A potential category of ‘by object’ restrictions

I can state, right from the outset, that no-poach agreements – agreements in which two or more undertakings agree not to hire or solicit staff from each other – have, at least when entered into between actual and potential competitors, and unless they are ancillary to a legitimate transaction which is itself not anticompetitive, all the characteristics to be considered prima facie restrictive of competition ‘by object’.

To begin with, a no-poach agreement can, quite clearly, be regarded as a form of sharing a source of supply (in casu, a supply of labour), which is expressly referred to in Article 101(1)(c) TFEU. In addition, recent practice from authorities (44) and courts (45) (both in the European Union and elsewhere), as well as legal and economic scholarship, (46) appears to provide sufficient and reliable indications for the view that no-poach agreements are generally prejudicial to the normal functioning of competition. In fact, in FIFA, the Court referred to collusive behaviour consisting in limiting or controlling, in certain sectors or on certain markets, ‘the recruitment of highly skilled workers’ as a possible restriction by object. (47)

I agree with that. Instead of competing to recruit the best employees – by offering higher salaries and/or better working conditions and opportunities – the undertakings in question ‘lock in’ their staff, with a ‘freezing effect’ on the terms of their contracts. Most efficient undertakings, which have the incentive and the ability to recruit the personnel they consider to be the best fit for their needs, are prevented from doing so when that personnel is employed by one of the other parties to the agreement.

This results, inevitably, in suboptimal allocation of human resources, loss of efficiency and/or innovation and, quite clearly, lower wages for staff. The input market (labour market) is certainly negatively affected and, as a consequence, the output market (products or services offered by the undertakings in question) may also often be affected in a similar way.

Accordingly, I have no difficulty in concluding – in agreement with what, inter alia, the AdC, the Portuguese Government and the Commission argue – that the economic rationale of most no-poach agreements between competitors is anticompetitive.

That being said – for the reasons explained above – finding that a given agreement belongs to a category of agreements that is typically restrictive of competition is by no means the end of the analysis. The content, the legal and economic context and the objectives of the specific agreement at issue should be taken into consideration to verify whether there are specific circumstances that may cast doubt on the harmful nature of the agreement in question.

(b) The specific circumstances at issue in the main proceedings

To my mind, in the present case, there are a number of elements which appear to exclude the inherently anticompetitive nature of the agreement at issue.

It follows from the order for reference that the football clubs concluded the agreement at issue, with the support of the national football association, during the COVID‑19 pandemic, with the objective of ensuring that the 2019/2020 season could, despite the interruption and delays, be completed without compromising the integrity and fairness of the tournament.

It seems to me rather obvious that, with 10 matches still to be played, in the absence of any agreement such as that at issue, it would have been rather easy for some of the teams to distort the proper progress of the tournament. In particular, by hiring the best players from their most direct competitors, among those whose contract was set to expire or was unilaterally terminated, the richest clubs could have strengthened their own squads and weakened those competitors at the same time. (48) That would have been all the more likely since the pandemic hit football clubs’ finances quite hard (49) and it is, therefore, not unthinkable that this could have exacerbated the difference in wealth between the various clubs, thus impacting the signing of new players.

Such an occurrence could have – I believe – undermined the credibility of the tournament as a whole in the eyes, amongst others, of the sponsors and the supporters. Therefore, the clubs’ desire to keep their squads in those last 10 matches as similar as possible to those in the first part of the season is a measure which is consistent with the objective of ensuring the integrity and fairness of the sports competition, in which the results are based on merit and not expediency. In FIFA, the Court has already recognised that ‘it may be legitimate for [football associations] to seek to ensure, to a certain extent, the stability of the composition of the player rosters that serve as a pool for the teams which are put together by those clubs during a given season – for example by proscribing … the unilateral termination of employment contracts during the season – or during a given year’. (50) It seems to me that such a finding is, mutatis mutandis, also relevant in the present case. In practice, the agreement in question was intended to delay, for certain players, the opening of the transfer window – which, for obvious reasons, is normally not open in periods that are so close to the end of the tournament (51) – in order to align it with the tournament’s new schedule.

In that respect, I would add that I am unconvinced by the AdC’s and the Commission’s allegation concerning the relative similarity between the rules examined in the judgment in FIFA, (52) which were in fact found to have an anticompetitive object by the Court, and the agreement which is the object of the present proceedings. In FIFA, the rules were, first of all, worded in ‘extremely general and imprecise terms that lend themselves to being implemented in a manner that is discretionary and therefore unpredictable and difficult to verify’, (53) and to being relied on abusively. (54) Any breach of those rules could lead, virtually automatically and on the basis of mere presumptions, to the imposition of draconian and/or lasting penalties, (55) depriving the player of ‘any possibility of participating in organised football’ (56) and ‘[exposing] the new club to the risk of being held jointly and severally liable for payment of a potentially very large amount of compensation’. (57) As such, those rules produced a ‘generalised and drastic restriction of cross-border competition between clubs [which extended,] from a geographic viewpoint, to the entire territory of the European Union and, from a temporal viewpoint, [was] permanent’. (58)

I fail to see what characteristics the two sets of measures have in common.

In addition, the agreement at issue did not have an effect which is comparable with that produced by the measure examined in Royal Antwerp. In that case, the Court once again confirmed that agreements or decisions by associations of undertakings which aim ‘at partitioning markets according to national borders, tending to restore the partitioning of national markets or making the interpenetration of national markets more difficult, may be such as to frustrate the objective of the EU and FEU Treaties to achieve the integration of those markets through the establishment of the internal market and that they must, for that reason, be categorised, in principle, as agreements that have as their “object” the restriction of competition’. (59) No such effect can be identified in the present case, since cross-border transfers were not affected by the agreement at issue in either direction.

Accordingly, although the agreement at issue did introduce some restrictions on the clubs’ ability to compete with regard to one of the essential inputs of their activity (the signing of players), (60) it is my view that, under the exceptional circumstances of the case, and considering its limited scope, that agreement could hardly be regarded as being inherently anticompetitive.

Actually, it could even be argued that the agreement in question had a pro-competitive nature. Sports leagues do not function like ordinary markets for products or services. The ‘wildest dream’ of any club playing in the league is not to send all its competitors out of the market and become a de facto monopolist. That is factually impossible and economically nonsensical. The number of clubs is stable and their market performance (with supporters, sponsors, broadcasters, and so forth) requires a certain level of competitiveness within the league to be maintained. (61) Therefore, from that perspective, it would not be unreasonable to take the view that, in so far as the agreement at issue was instrumental in securing an appropriate competitive structure within the league until the end of the season, its economic rationale was to preserve and enhance healthy competition.

I understand that the relevant market for the agreement at issue is that of the transfer of players (the league itself does not operate as a market). However, the interdependence between the two is obvious: were the league to lose its integrity and competitiveness, interest by supporters, sponsors and broadcasters would likely decrease, with the consequence that the player-transfer market would also suffer since fewer investments would ensue, resulting in a lose-lose situation for clubs and players.

In that respect, when asked at the hearing to consider whether the agreement in question could be regarded, for the reasons I have just explained, to have a pro-competitive nature, the Commission merely referred to the restrictive effects generally produced by no-poach agreements, not commenting on the rationale of that specific agreement and its actual context. In its final reply at the hearing, the Commission went as far as to state that, in essence, it was unnecessary to consider the context since the agreement at issue constituted a restriction ‘by object’.

I disagree. Not only is the case-law of the Court consistent in finding that context always matters, (62) but several judgments from the last few years made clear that – as explained in point 40 above – a ‘detailed’ analysis of the context (as well as of the content and objectives) may be necessary where the cases are not straightforward. (63) Just as context can sometimes result in an agreement which does not fall into a category of agreements which are typically restrictive being regarded as anticompetitive ‘by object’, considering the context can also have the opposite effect.

That also explains why I am somewhat perplexed by the repeated references, in AdC’s, the Portuguese Government’s and the Commission’s oral submissions, to the passage in the judgment in Toshiba which states that ‘the analysis of the economic and legal context … may … be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object’. (64) They appear to interpret that passage as permitting the authorities to carry out a cursory (if not superficial) analysis of the context under all circumstances. That is a patent misinterpretation of the judgment in Toshiba. Those parties place an emphasis on the terms ‘limited’ and ‘strictly’, whilst overlooking the term ‘necessary’, ignoring the case-law referred to in the previous point.

It seems to me that the anticompetitive nature of the agreement at issue in the present case is anything but straightforward. Indeed, the content of the agreement (its limited scope), its context (the COVID‑19 pandemic) and its objective (to ensure an orderly conclusion of the season) make clear that a more detailed and in-depth assessment of the anticompetitive object (and, if appropriate, effect) of the agreement is necessary.

In fact, when asked at the hearing to explain what harm was, in practice, caused to consumers by the agreement at issue, the AdC struggled to provide a meaningful answer. That authority referred to possible issues with regard to the fairness of the treatment reserved for players. As is clear in points 49 to 53 above, I am not in principle against taking into consideration, within a competition analysis, issues relating to labour and how undertakings’ practice may affect that market. However, competition law and labour law have different objectives and are governed by different principles. In fact, players’ employment contracts with their clubs are generally governed by national law. (65) In some countries, for certain sports, there are also unionised collective agreements in place. EU law – including EU competition law – is rather deferential to those national laws and collective agreements. (66) Accordingly, how labour issues interact with competition issues should be carefully explained when a case is brought under Article 101 TFEU for alleged harm caused to workers. In the present case, I must say that that interaction is still unclear, as it is also the specific theory of harm behind the AdC’s decision, as a consequence.

It is, however, for the national court eventually to rule on all the issues considered above, after a thorough review of the content, context and objectives of the agreement at issue.

On the basis of the above, I propose that the Court answer the third question referred to the effect that Article 101(1) TFEU must be interpreted as meaning that a no-poach agreement concluded during the COVID‑19 pandemic by professional sports clubs, in agreement with their national sports association, shall not be classified as restrictive by object, if its genuine rationale was to preserve the fairness and integrity of the sports competition affected by the pandemic.

By its first and second questions, which can be examined together, the referring court essentially asks the Court whether an agreement such as that at issue may fall within the scope of the Meca-Medina case-law and, for that reason, be regarded as compatible with Article 101 TFEU.

To recall, that is the strand of the Court’s case-law that, originating from the judgment in Wouters, (67) was then applied to sports-related activities first in Meca-Medina and was then more recently referred to in ISU, in Superleague and in Royal Antwerp, as well as in some subsequent judgments. (68) In essence, the Meca-Medina case-law makes clear that agreements which restrict the freedom of action of the undertakings involved do not fall within the prohibition laid down in Article 101(1) TFEU if: (i) they are justified by the pursuit of one or more legitimate objectives in the public interest which are not anticompetitive in nature; (ii) the specific means used to pursue those objectives are genuinely necessary for that purpose; and (iii) even if those means prove to have an inherent effect of, at the very least potentially, restricting or distorting competition, that inherent effect does not go beyond what is necessary, in particular by eliminating all competition.

In points 21 to 53 of my Opinion in ROGON, I have discussed in detail the origin, logic and scope of that case-law. In the interest of judicial economy, I shall refer readers to those passages. It is in the light of the considerations developed therein that I shall now discuss the applicability of the Meca-Medina case-law in respect of an agreement such as the one at issue. Once again, the final decision in that regard rests, nevertheless, on the national court.

At the outset, I should point out that, if the referring court were to come to the conclusion that the agreement in question is – contrary to my preliminary assessment – restrictive of competition by object, that case-law would not be applicable. My analysis below is, thus, based on the assumption that the referring court’s final examination of the agreement at issue will confirm that it does not pursue an anticompetitive object.

As follows from point 70 above, the test devised by the Court in the Meca-Medina case-law is essentially composed of three successive steps of the analysis which, once again, cannot be made in the abstract but should always consider the conduct in question in the light of its economic and legal context. (69)

In the first place, the referring court is to determine whether the agreement at issue is justified by the pursuit of one or more legitimate objectives in the public interest which are not per se anticompetitive. Having already determined that an agreement such as that at issue did not have an anticompetitive object, the following elements are still to be checked: whether the objective pursued was worthy of protection under EU law and whether the subjects which adopted the agreement at issue had the legitimacy to act. My preliminary view is that both questions should receive a positive answer.

To begin with, pursuant to Article 165(2) TFEU, the European Union recognises and promotes ‘fairness and openness in sporting competitions’. (70) In fact, even before the Treaty of Lisbon introduced that provision, the Court had expressly recognised the public interest associated with those values. (71) Recent case-law has unequivocally confirmed that ‘it is legitimate to subject the organisation and conduct of international professional football competitions to common rules intended to … promote, in a suitable and effective manner, the holding of sporting competitions based on equal opportunities and merit’. (72)

More specifically, in FIFA, the Court stated that: (i) ‘the objective consisting in ensuring the regularity of sporting competitions is a legitimate objective in the public interest that may be pursued by a sporting association, for example by adopting rules setting deadlines for transfers of players in order to avoid late transfers that might substantially change the sporting strength of one or other team in the course of a competition and thereby call into question the comparability of results between the teams taking part in that competition and thus the proper conduct of that competition as a whole’, and (ii) ‘maintaining a certain degree of stability in [the] player rosters, and therefore a certain continuity in the related contracts, must … be regarded … as one of the means capable of contributing to the pursuit of the legitimate objective in the public interest consisting in ensuring the regularity of interclub football competitions’. (73)

Furthermore, national sports associations such as the LPFP – which assisted and cooperated with the clubs that concluded the agreement at issue – have consistently been recognised as having both the ‘primary responsibility in the conduct of sporting affairs’, enjoying for that purpose some latitude in ‘[organising] and [promoting] their particular sports’, (74) and the status of interlocutors of the national and EU authorities on sports-related matters. (75) The Court’s case-law has expressly recognised that. (76)

In the second place, the referring court is to establish whether the specific means used to pursue the objective in question were genuinely necessary for that purpose. In my view, this ‘necessity’ criterion requires the referring court to check, mainly, three aspects which are strictly related, namely whether the agreement at issue (i) was entered into in response to an objective need to pursue the objective in question; (ii) genuinely reflected a concern about securing the attainment of that objective in a consistent manner; and (iii) was suitable to achieve that objective, meaning that it appeared suited to make a meaningful contribution to its achievement.

Here, too, I must say that, on the basis of the information included in the case file, those three questions should also probably be answered positively. The exceptional nature of the COVID‑19 pandemic created a serious risk that the clubs would be unable to complete the 2019/2020 football season or, at the very least, that the integrity and fairness of the final part thereof could not be ensured. It seems to me hardly disputable that ‘something had to be done’, by the football teams and the football associations, to ‘save what could be saved’ under such uncertain and unprecedented circumstances.

As explained in points 57, 58, 63 and 64 above, the agreement in question appears to be motivated by the genuine desire of the football clubs and the national association to achieve a fair and orderly end to the season, by ensuring that the competitive structure of the tournament remained unaffected.

In this context, I would like to point out that the term ‘genuine necessity’ in the Meca-Medina test cannot be interpreted as ‘conditio sine qua non’ for the objective in question to be achieved. As I have explained in points 41 to 45 of my Opinion in ROGON, the regulatory bodies concerned necessarily need some latitude in choosing the measures which they see fit to best protect the interests involved. To give just one example, the prohibition for lawyers to practise in full partnership with accountants, at issue in the case giving rise to the judgment in Wouters, cannot be considered absolutely essential and indispensable to ensure ‘that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience’. (77)

) The keyword in this context is ‘reasonableness’: could the parties concerned reasonably take the view that the measure in question would make a meaningful contribution to the achievement of the stated objective, whilst any measure less restrictive of competition would not be equally effective?

85.As I have explained in more detail in points 35 to 37 of my Opinion in ROGON, I am aware that the term ‘reasonable’, which features in the judgment in Wouters, does not appear in the judgments in ISU, in Superleague or in Royal Antwerp. However, the Court has simply formulated that concept in a different way in paragraph 197 of the judgment in Superleague. In that passage, it stated that, when checking the condition of the necessity of the measure, the EU and national courts should verify whether ‘the efficiency gains expected … may be attained by measures which are less restrictive of competition’, but they may not evaluate the various measures available ‘based on their respective desirability’.

86.Finally, the referring court is to establish whether the effects of the agreement at issue go beyond what is necessary to achieve its objective, in particular by eliminating all competition. As I have explained, the agreement at issue concerned only one parameter on which the clubs compete (the signing of new players) – thus leaving inter-club competition unaffected in any other respect – and only for some players for a short period. This means, I believe, that that agreement does not eliminate all competition from the market or markets concerned.

87.Accordingly, there seems to be one main issue which the referring court might need to focus on in this context: whether there were other measures that, whilst being equally capable of achieving the objective pursued, were also less restrictive of competition. That is, indeed, an issue on which the referring court is clearly best placed to rule, since it requires the taking into account of various elements of law and fact. However, a number of specific features of the agreement in question, or of the context in which it was adopted, seem to me to be of particular significance.

88.First, the agreement at issue had limited geographical and personal scope: the players employed by Portuguese football clubs in the First and Second Divisions which were party to the agreement, whose contracts expired or were unilaterally terminated during the COVID‑19 pandemic. The clubs remained free to hire, for example, players from clubs playing outside Portugal or from lower Portuguese divisions. The agreement also had a rather limited scope ratione temporis: it only applied during the period needed to complete the 2019/2020 season and ceased to have effect from the day following the last match of that season.

89.Second, given the urgency of the matter, and the uncertainty and complexity of the situation, when considering the existence of alternative measures – which it is for the AdC to indicate – the referring court should take into account only those which were reasonably available and relatively straightforward in design and implementation. It was, naturally, not a period in which it was conceivable to produce detailed studies and reports, or to experiment. After all, it was not even possible to have meetings in person, and online platforms were certainly not the most effective means for having lengthy and complex discussions.

90.In this context, I would also not disregard the fact that, some weeks before the conclusion of the agreement at issue, the European Competition Network issued a joint statement in which it acknowledged the possible need for cooperation between businesses. (78) That might corroborate the view that the football clubs and the national association could reasonably consider that some degree of cooperation on aspects on which they would have otherwise fiercely competed was, exceptionally, necessary in that period.

91.Third, the impact of the agreement at issue on the economic activity of the football players involved appears to be relatively minor. They were free to sign for teams outside Portugal at any time, and also for any team in Portugal from the day following the last match of the season. Considering FIFA’s recommendation to national football associations to change the dates for the periods for player registration, (79) it seems to me that players can hardly claim to have lost significant opportunities for new contracts because of the agreement at issue. Moreover, that agreement did not – and obviously could not – unilaterally affect the legal duration of the players’ existing contracts; any extension thereof (and, if appropriate, any extra remuneration) had to be agreed between the club and the player concerned. Players were thus free to negotiate and refuse offers which they found unattractive, whilst considering opportunities from other football leagues.

92.Although the agreement may have induced the players to accept offers which were lower than what they would have desired, the alternative available to those players (the temporary regime for unemployment adopted by the Portuguese Government during the pandemic) was – as I understand it – financially far less favourable for them.

93.Therefore, my preliminary view is that the agreement in question has been devised so as to limit, as much as possible, the impact on competition between the clubs involved, and that alternative measures which are equally effective and less restrictive are hard to identify. Considering, also, the position expressed by the European Competition Network, it could be argued that the football clubs and the national association could, at that time, reasonably consider the restriction of competition produced by the agreement at issue to be necessary for the pursuit of a legitimate objective in the public interest, and proportionate to that objective.

94.In the light of the foregoing, I suggest that the Court answer the first and second questions referred to the effect that Article 101(1) TFEU must be interpreted as meaning that a no-poach agreement such as that at issue in the main proceedings falls within the scope of the Meca-Medina case-law provided that, in particular, it genuinely sought to ensure the integrity and fairness of the sports competition, and it was necessary and proportionate to that objective.

95.In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Tribunal da Concorrência, Regulação e Supervisão (Competition, Regulation and Supervision Court, Portugal) to the effect that

Article 101(1) TFEU

must be interpreted as meaning that a no-poach agreement concluded during the COVID‑19 pandemic by professional sports clubs, in agreement with their national sports association:

–shall not be classified as restrictive by object, if its genuine rationale was to preserve the fairness and integrity of the sports competition affected by the pandemic; and

–falls within the scope of the Meca-Medina case-law provided that, in particular, it genuinely sought to ensure the integrity and fairness of the sports competition, and it was necessary and proportionate to that objective.

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Original language: English.

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Judgment of 21 December 2023, International Skating Union v Commission (C‑124/21 P, EU:C:2023:1012) (‘the judgment in ISU’).

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Judgment of 21 December 2023, European Superleague Company (C‑333/21, EU:C:2023:1011) (‘the judgment in Superleague’).

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Judgment of 21 December 2023, Royal Antwerp Football Club (C‑680/21, EU:C:2023:1010) (‘the judgment in Royal Antwerp’).

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Judgment of 4 October 2024, FIFA (C‑650/22, EU:C:2024:824) (‘the judgment in FIFA’).

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With reference to the judgment of 18 July 2006, Meca-Medina and Majcen v Commission (C‑519/04 P, EU:C:2006:492) (‘the judgment in Meca-Medina’).

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C-209/23 (‘the Opinion in RRC Sports’).

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C-428/23 (‘the Opinion in ROGON’).

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In the questions referred for a preliminary ruling, that agreement at issue is referred to as ‘an agreement concluded online via the Zoom or Microsoft Teams platforms on 7 April 2020 by all of the First-Division incorporated professional football clubs and to which most of the Second-Division incorporated professional football clubs of a Member State subsequently signed up, by the same mechanism on the following day, in both cases in collusion with the association whose purpose in that Member State is to support and regulate professional football activities, and under which those clubs agreed as between themselves not to sign up any professional footballers in those divisions who had unilaterally terminated their employment contract on account of issues arising from the COVID‑19 pandemic or from any exceptional decision adopted as a result of that pandemic, in particular to extend the sports season’.

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Opinion in Budapest Bank and Others (C‑228/18, EU:C:2019:678, point 1) (‘the Opinion in Budapest Bank’).

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See, for example, Kovar, J‑P. and Kovar, R., ‘L’objet anticoncurrentiel au sens de l’article 101, paragraphe 1, du TFUE: Un objet difficile à identifier’, Concurrences No 1-2016, Art. No 77266, p. 48, and Idot, L., ‘La distinction restriction de concurrence par objet / restriction de concurrence par effet et l’article 101 TFUE : Un sujet de disputatio’, Concurrences No 3-2017, Art. No 93464, p. 1.

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See, for example, judgments of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204, paragraph 58) (‘the judgment in CB’); of 2 April 2020, Budapest Bank and Others (C‑228/18, EU:C:2020:265, paragraph 54) (‘the judgment in Budapest Bank’); and of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 67) (‘the judgment in Generics’).

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See the judgment in Superleague, paragraphs 161 and 162.

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Similarly, Ibáñez Colomo, P., ‘Restrictions by object under Article 101(1) TFEU: From dark art to administrable framework’, Yearbook of European Law, 2024, 00, pp. 1 to 37.

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See the judgment in Superleague, paragraphs 163 and 164.

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Ibid.

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See, inter alia, judgment of 29 June 2023, Super Bock Bebidas (C‑211/22, EU:C:2023:529).

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See, in other words, Opinion of Advocate General Kokott in Generics (UK) and Others (C‑307/18, EU:C:2020:28, point 163) (‘the Opinion in Generics’).

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See, to that effect, judgment of 25 March 2021, Lundbeck v Commission (C‑591/16 P, EU:C:2021:243, paragraphs 139 to 143) (‘the judgment in Lundbeck’).

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See my Opinion in HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2022:384, point 85).

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See the judgment in Superleague, paragraph 167. I would also add, in passing, that the mere intention to restrict competition is, in itself, insufficient to establish a restriction. Let us think, for example, of an agreement which is manifestly incapable of restricting competition. See, on this issue, the judgment in CB, paragraph 54, and Opinion of Advocate General Wahl in CB v Commission (C‑67/13 P, EU:C:2014:1958, point 107) (‘the Opinion in CB’).

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Judgment of 20 November 2008, Beef Industry Development Society and Barry Brothers (C‑209/07, EU:C:2008:643) (‘the judgment in BIDS’).

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See, inter alia, Frumento, A., ‘Le regole di concorrenza fra imprese industriali nella Comunità economica europea’, Rivista Internazionale di Scienze Economiche e Commerciali, 1958, No 1, p. 10; Joliet, R., ‘La légalité des clauses de fidélité d'approvisionnement au regard de l'article 85 du Traité de Rome’, Revue Critique de Jurisprudence Belge, 1968, p. 157; and, more recently and with further references, Petit, N., ‘La rationalisation au long cours de la restriction de concurrence par « objet » dans la jurisprudence de la Cour de Justice de l’Union européenne’, AJCA, 2015, pp. 422 and 423.

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See Opinion of Advocate General Sharpston in KME Germany and Others v Commission (C‑272/09 P, EU:C:2011:63, point 67), with reference to the seminal Jussila case of the European Court of Human Rights (judgment of 23 November 2006, Jussila v. Finland, CE:ECHR:2006:1123JUD007305301, § 43).

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See the judgment in Superleague, paragraph 165.

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See, for example, judgment of 29 July 2024, Banco BPN/BIC Português and Others (C‑298/22, EU:C:2024:638, paragraph 45 and the case-law cited) (‘the judgment in BPN’).

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See, inter alia, the judgment in Superleague, paragraph 166.

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See the judgment in BPN, paragraph 48.

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See, for example, the Opinion in Generics, point 57 and the case-law cited. See also, in scholarship, Odudu, O., ‘The object/effect distinction’, in Charbit, N. and Ahmad, S. (eds), Richard Whish QC (Hon) Liber Amicorum: Taking Competition Law Outside The Box, Concurrences, 2020, p. 112 et seq.

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See the Opinion in Budapest Bank, point 61. See also, in scholarship, Dekeyser, K. et al. (eds), Regulation 1/2003 and EU Antitrust Enforcement – A Systematic Guide, Wolters Kluwer, 2023, p. 85.

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See the judgment in Superleague, paragraph 167.

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See the judgment in BPN, paragraph 56.

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See, to that effect, judgment of 6 December 2012, AstraZeneca v Commission (C‑457/10 P, EU:C:2012:770, paragraphs 79 to 99).

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See, especially, the judgment in Budapest Bank, paragraphs 76 and 79. See also, the Opinions in CB, point 79, and in Budapest Bank, points 65 to 72. On the importance of experience, in scholarship see Bailey, D., ‘Restrictions of competition by object under Article 101 TFEU’, Common Market Law Review

, Vol. 49, Issue 2, 2012, pp. 562 to 566.

With that term, I refer to forms of conduct which, for the undertakings in question, have no economic interest other than that of restricting competition.

See, to that effect, judgment of 20 January 2016, Toshiba Corporation v Commission (C‑373/14 P, EU:C:2016:26, paragraph 29) (‘the judgment in Toshiba’). I shall discuss that judgment later, in points 66 and 67 of the present Opinion.

See the Opinion in Budapest Bank, points 41 and 48, in which Advocate General Bobek spoke of a ‘two-step analysis’. In scholarship, Peeperkorn, L., ‘Defining restrictions “by object”’, Concurrences No 3-2015, Art. No 74812, pp. 43 and 50, mutatis mutandis referred to ‘two levels of analysis’.

See, in that regard, judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 143).

See, to that effect, the Opinion in CB, point 53. In legal scholarship, see, for example, Jones, A., ‘Left behind by modernisation? Restrictions by object under Article 101(1)’, European Competition Journal, Vol. 6, Issue 3, 2010, p. 655.

See, namely, the judgments in Generics, paragraph 76; and in Lundbeck, paragraphs 129 to 132; and judgment of 27 June 2024, Servier and Others v Commission (C‑201/19 P, EU:C:2024:552, paragraph 144). See also, Opinion of Advocate General Kokott in Lundbeck v Commission (C‑591/16 P, EU:C:2020:428, points 155 to 157).

See, for example, the judgment in Generics, paragraph 77, and the Opinion in Generics, point 163. See also, Dekeyser, K. et al. (eds), footnote 30, op. cit., p. 84.

The Opinion in Budapest Bank, point 67.

See, inter alia, judgment of 25 January 2024, Em akaunt BG (C‑438/22, EU:C:2024:71, paragraph 26 and the case-law cited). See also, my Opinion in RRC Sports, points 36 to 38.

See United States Department of Justice and the Federal Trade Commission, ‘Antitrust guidelines for business activities affecting workers’, January 2025 (replacing the previous version from October 2016), and European Commission, Competition Policy Brief, ‘Antitrust in labour markets’, May 2024.

See the case-law referred to in Polden, D.J., ‘No-poach agreements: An overview of US, EU, and national case law’, 1 February 2024, e-Competitions, Art. No 116824, and in Posner, E.A. and Volpin, C., ‘No-poach agreements: An overview of EU and national case law’, 4 May 2023, e-Competitions, Art. No 112194. As regards the EU Courts, see for example the recent Opinion of Advocate General Szpunar in FIFA (C‑650/22, EU:C:2024:375, footnote 34) (‘the Opinion in FIFA’).

See, inter alia, Hovenkamp, H. and Areeda, P.E., Antitrust Law: An Analysis of Antitrust Principles and Their Application, paragraph 352 (last updated in September 2024), Kluwer, 2024; Posner, E.A., ‘Enforcement of US antitrust law in labour markets’, Journal of Antitrust Enforcement, Vol. 11, Issue 2, 2023, p. 259 (and the economists’ works cited in footnote 11 thereof); and Stutz, R.M., ‘The evolving antitrust treatment of labor-market restraints: From theory to practice’, American Antitrust Institute, 31 July 2018.

Paragraph 129 of the judgment in FIFA, with reference to paragraphs 107, 109 and 110 of the judgment in Royal Antwerp.

See, similarly, judgment of 13 April 2000, Lehtonen and Castors Braine (C‑176/96, EU:C:2000:201, paragraph 55) (‘the judgment in Lehtonen’): ‘The teams taking part in the play-offs for the title or for relegation could benefit from late transfers to strengthen their squads for the final stage of the championship, or even for a single decisive match.’

See, for example, European Commission: Directorate-General for Education, Youth, Sport and Culture, ECORYS and SportsEconAustria, Mapping study on measuring the economic impact of COVID‑19 on the sport sector in the EU – Final report, Publications Office of the European Union, Luxembourg, 2020, Section 2.3.

See paragraphs 143 and 144 of that judgment.

See, again, the judgment in Lehtonen, paragraph 54: ‘Late transfers might be liable to change substantially the sporting strength of one or other team in the course of the championship, thus calling into question the comparability of results between the teams taking part in that championship, and consequently the proper functioning of the championship as a whole.’

Those rules, included in the FIFA Regulations on the Status and Transfer of Players, concerned contractual relations between players and clubs, and related to compensation, sporting sanctions and the issuance of a mandatory international transfer certificate, in a situation of an alleged termination of contract without just cause.

The judgment in FIFA, paragraphs 135 and 139.

Ibid., paragraph 141.

See the Opinion in FIFA, point 53.

See paragraph 136 of the judgment in FIFA.

Ibid., paragraphs 137 and 139.

Ibid., paragraphs 138 and 140.

See the judgment in Royal Antwerp, paragraphs 95 and 96. Emphasis added.

See, to that effect, the judgment in FIFA, paragraph 107, and the judgment in Royal Antwerp, paragraph 107.

Similarly, Opinions of Advocate General Lenz in Bosman (C‑415/93, EU:C:1995:293, points 227 and 270), and of Advocate General Rantos in European Superleague Company (C‑333/21, EU:C:2022:993, point 166). In scholarship, see, for example, Siekmann, R., ‘The specificity of sport: Sporting exceptions in EU law’, The International Sports Law Journal, 2011, p. 697.

See the case-law referred to above in points 33 to 38 of the present Opinion, as well as the case-law referred to in points 23 and 27 of my Opinion in ROGON.

See the judgment in Lundbeck, paragraph 131, and judgment of 27 June 2024, Servier and Others v Commission (C‑201/19 P, EU:C:2024:552, paragraphs 87, 144, 277 and 292). See also, to that effect, the judgment in Generics, paragraphs 84 and 85, and Opinion of Advocate General Wathelet in Toshiba Corporation v Commission (C‑373/14 P, EU:C:2015:427, point 74).

Paragraph 29 of that judgment; emphasis added.

See, on this issue, O’Leary, L., ‘Professional team sports and collective labour law in the European Union’, in Anderson, J., Parrish, R. and García, B. (eds), Research Handbook on EU Sports Law and Policy, Edward Elgar Publishing, 2018, p. 410.

See, for example, judgments of 21 September 1999, Albany (C‑67/96, EU:C:1999:430), and of 4 December 2014, FNV Kunsten Informatie en Media (C‑413/13, EU:C:2014:2411).

Judgment of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98) (‘the judgment in Wouters’).

See judgments of 18 January 2024, Lietuvos notarų rūmai and Others (C‑128/21, EU:C:2024:49, paragraphs 97 to 105), and of 25 January 2024, Em akaunt BG (C‑438/22, EU:C:2024:71, paragraphs 21 to 35 and 42 to 54).

See the judgment in Meca-Medina, paragraph 42.

On this issue, see my Opinion in RRC Sports, points 32, 33 and 71.

See, for example, the judgment in Meca-Medina, paragraph 43.

See the judgment in Superleague, paragraph 144.

Paragraphs 100 and 102 of the judgment in FIFA. See also, the Opinion in FIFA, points 61 and 62 and the case-law cited.

See, inter alia, Declaration of the European Council on the specific characteristics of sport and its social function in Europe, of which account should be taken in implementing common policies, of December 2000; European Commission, White Paper – White Paper on Sport, COM(2007) 391 final, of 11 July 2007, and European Parliament, Resolution of 23 November 2021 on EU sports policy: assessment and possible ways forward (2021/2058(INI)) (OJ 2022 C 224, p. 2).

See, in that regard, Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council on the European Union Work Plan for Sport (1 January 2021-30 June 2024) (OJ 2020 C 419, p. 1).

See, for example, judgment of 11 April 2000, Deliège (C‑51/96 and C‑191/97, EU:C:2000:199, paragraphs 67 and 68).

Paragraph 97 of that judgment.

See above, point 12 of the present Opinion. The same idea was then expressed by the Commission in paragraph 3 of its Communication – Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID‑19 outbreak (OJ 2020 C 116 I, p. 7), published just one day after the conclusion of the agreement at issue.

See above, point 11 of the present Opinion.