The Italian Antitrust Authority says that the decisions adopted by the Italian Football Association to regulate access to some football professions are a competition restraint by object

Do the conditions for access to certain football professions laid down by the Italian football association (Federazione Italiana Giuoco Calcio or FIGC) infringe competition? This was the question dealt with by the Italian Competition Authority (ICA) in the case I812, FIGC Regolamentazionedell’attività di direttore sportivo, collaboratore della gestione sportive,osservatore calcistico e match analyst (FIGC). Eventually, the ICA took the position that the measures adopted by the FIGC amounted to a competition restraint by object in breach of Article 101 TFEU. It then closed the antitrust investigation by an infringement decision, levying a € 3.3 million on FIGC.

More specifically, the target of the ICA investigation in the FIGC case was the measures taken by the Italian football association to determine the conditions for access to a number of professional activities concerning the football sector. These professions were: sporting manager (to be exercised in clubs playing in the top professional leagues), junior sporting manager (concerning clubs playing in lower leagues), talent scouts and match analysts. The rules governing the access to these professions were laid down in the regulations adopted by the FIGC in 2010 and 2015 and also in the competition notices inviting to apply for the related training coursed organized by the FIGC itself.

In essence, for an individual to lawfully exercise one of the above football professions within an Italian football club, it was necessary to meet the cumulative conditions:

·       Being resident in Italy or having the Italian citizenship;

·       Being in possess of a qualifying diploma that could be obtained by successfully attending a vocational course organized by the FIGC on an exclusive basis;

·       Being registered with the special registries held by the FIGC, the access to which is allowed only to the awardees of the aforementioned diplomas.

A further access restriction considered by the ICA was that every year only a few places were available for those interested in enrolling to the FIGC training programmes.

The ICA correctly qualified the FIGC as an association of undertakings and the regulations and competition notices released by the FIGC as decisions of an association of undertakings. Hence, these practices fell with the scope of application of Article 101 TFEU. That said, the ICS took the position that the FIGC’s regulations and competition notices had an anti-competitive nature. Crucially, these measures capped the number of individuals that could potentially exercise the football professions. What these measures did was to prevent those without the Italian citizenship or residency or without the FIGC diplomas or that were not enrolled to the FIGC registries from being hired by Italian football clubs in the roles corresponding to the professions regulated by the contested measures.

In this way, the FIGC artificially altered the equilibrium between supply and demand in the market for the provision to football clubs of the services supplied when exercising the regulated professions. The theory of competition harm relied on by the ICA in this case was a foreclosure targeting those professional planning to enter the market. Furthermore, the challenged FIGC measures were also incompatible with the general principles for the liberalization of the economic activities laid down by Decree Law no. 201/2011 ‘Salva Italia (Rescue Italy). The decree prohibits the putting in place of unjustified obstacles frustrating the carrying out of economic activities and also impose the duty to remove such obstacles. Hence, the ICA qualified the regulations and the competition notices adopted by the FIGC acts as competition restraint by object. The FIGC effectively implemented them, reducing the talent pool from which football clubs could hire the professionals they were in need of. Evidence to that was the fact that each year only 40% of the applicant were admitted to the FIGC courses. Moreover, the FIGC adopted these measures notwithstanding the ‘Rescue Italy Decree’ expressly provided for a general liberalization of economic activities. Taking all these factors in mind, the ICA reached the conclusion that the challenged measures amounted to a serious competition breach.

To rebut the ICA allegations, the FIGC invoked the Wouters rule. According to this rule, in certain cases, restrictive national measures that pursue non-competition objectives overriding the objective of the preservation of competition do not breach Article 101 TFEU. In that regard, the FIGC argued that its restrictive measures were instrumental in ensuring the correct working of football teams as well as of the entire football sector.

The ICA replied that the restrictive measures in question were not proportionate to the policy objectives declared by the FIGC and that they were beyond was necessary to attain those objectives. The level of professionality of the sporting managers and the other professionals considered in the contested measures depended on their innate soft skills rather than on the diplomas awarded by the FIGC. Moreover, the approach of the FIGC in determining the access conditions to the professions in question was unique being the only national football association to have enacted such restrictive measures. Indeed, no similar measures were required by the UEFA or FIFA whose regulatory frameworks did not include the role of sporting manager, being compulsory only for the FIGC. In sum, what the ICA believed was that in adopting the restrictive measures at issue, the FIGC was moved by a protectionist intent. Its apparent objective was to allow the coaches graduated from the FIGC training programmes to find employment in the football sectors also in roles other than coaches such as football analysts or sporting managers.

In conclusion, the ICA decision in the FIGC case confirms that competition provisions apply to the economic aspects of sporting rules. It also suggests that the Wouters rule in applies to sporting organisations subject to private law as in the case of FIGC. Finally, the decision is a warning signal that private law entity entrusted with regulatory functions cannot exercise this power in an unfettered way. On the contrary, they have to comply with competition law. In this case, the measured adopted by the FIGC to regulate access to some football professions breached competition by imposing excessively restricting conditions to access to these professions. As hinted by the ICA, the national measures in question also patently breached the EU internal market rules because they amounted to a discrimination on the grounds of nationality.