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The Dutch government has decided in light of the coronavirus that no football matches may be played until 1 September 2020. The KNVB (Royal Dutch Football Association) therefore decided also to stop the competition in paid football and not to have any promotion or relegation take place. The Cambuur and De Graafschap football clubs (nos. 1 and 2 in the Dutch First Division) instituted summary proceedings against that promotion and relegation decision. According to the clubs, the decision is in breach of the cartel prohibition, among other things. The preliminary relief court dismissed that claim (ECLI:NL:RBMNE:2020:1851).

The court first of all noted that Article 101 of the TFEU does not apply because the decision does not affect trade between Member States. Secondly, the court found that it was insufficiently plausible that the KNVB’s decision was in breach of Article 6 of the Mededingingswet (Competition Act), because the coronavirus has given rise to a highly exceptional situation and it is questionable whether competition law applies in that situation.

The court added that the regular promotion and relegation rules of the KNVB do not provide for a pandemic. The KNVB therefore decided against promotion and relegation because it could not be determined which clubs would have been promoted or relegated if the entire competition had been completed. The court considered it relevant that this was a one-off case in which it was not possible for clubs to be promoted and thereby to join the First Division. This one-off inability to join the First Division is unrelated to the elimination of competitors.

Although we subscribe to this judgment, we wonder whether the court’s arguments are correct. Article 101 of the TFEU may in fact apply, because the decision relates to the entire paid football sector and may also affect the international position of football clubs. Moreover, in our opinion the court has wrongly cast doubt on whether competition law applies to this situation. Established case law provides that actions of sports associations are governed by competition law. The KNVB’s decision furthermore does indeed affect several clubs, and in the long term their competitive position.

The court could also have ruled that possible restriction of competition may be involved, but that that restriction is justified or is exempted due to the special situation caused by COVID-19. The court did rightly note that the comparison with the ISU case does not hold. In that case the International Skating Union banned skaters from taking part in other competitions, subject to lifelong suspension. That was indeed of an entirely different order. Although the KNVB’s choices are undoubtably open to criticism, the KNVB certainly cannot be said to have played the game in breach of the competition rules.

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