Can No-Poach Agreements Be Justified? Insights from the AG Opinion on Portuguese Football

On 15 May 2025, Advocate General Nicholas Emiliou (AG) delivered three opinions regarding decisions by football governing bodies. Two cases related to aspects of the FIFA Football Agent Regulations (Case C-209/23, RCC Sports^[1] and Case C-428/23, Rogon^[2]). The third case involves a decision by the Portuguese competition authority, Autoridade da Concorrência (AdC), which found that a "no-poach" agreement among football clubs during the Covid pandemic restricted competition (Case C-133/24, Tondela^[3]). This article focuses on Tondela.

Tondela deals with an alleged no-poach agreement between Portuguese clubs which prevented the clubs from signing players who had unilaterally terminated their contracts and left their previous club due to salary cuts and delayed payments arising from the Covid-19 pandemic. In his opinion in Tondela, the AG explained that although no-poach agreements between competitors generally have all the characteristics to be considered prima facie (at first sight) restrictive of competition "by object", and therefore an infringement of EU competition law, the specific context of this case cast doubt on the harmful nature of the agreement in question. In particular, he identified credible arguments that the alleged agreement was necessary to ensure completion of the football season without the integrity and fairness of the tournament being compromised in light of the challenges posed by the Covid-19 pandemic.^[4]

In October 2024, LawInSport published an article offering some preliminary insights into this complaint (before the AG opinion was published)^[5].

While an AG's opinion is not binding on the Court of Justice of the European Union (CJEU) it is influential and is often followed. This article examines the AG's legal opinion in Tondela, the importance of the "genuine rationale" behind the agreement and why "context always matters" when determining whether an arrangement is a by-object restriction.

It also considers how the AG's opinion should be assessed in light of the European Commission's (EC) position that no-poach agreements should be considered as restrictions by object in light of the non-binding policy brief ‘'Antitrust in Labour Markets, Competition Policy Brief No 2/2024'; from the European Commission on no-poach agreements^[6].

Finally, it will compare the context of the Portuguese football agreement with the approach of the CJEU in Case 650/22, Diarra^[7] which also considered restrictions on player mobility in the EU.

Anyone with an interest in the how competition/anti-trust law in sport is developing will find this article of interest.

Article Outline

• Background to the case – A reminder of where we are now
• The Portuguese Competition Authority's Analysis
• How to assess "Restrictions by Object"?
  • What is a by-object restriction?
  • The AG's Analysis Framework
  • Determining Restrictive Conduct
  • Application to the Facts
• Context that drove the AG to conclude that the agreement was not restrictive by object in Tondela
  • The Meca-Medina Test Application
  • Genuine Necessity Standard
  • Factors Supporting the Agreement's Legitimacy
  • Holistic Market Assessment
• Arrangements that have fallen foul of competition law – Diarra
  • Background to the Diarra Case
  • The Problematic FIFA Regulations
  • The CJEU's Findings
  • Key Distinctions from Tondela
  • Scope and Proportionality Differences
• Concluding Remarks