Can a No-Poach Agreement Be Justified? The Legitimate-Objective Route in Tondela (Part 2)

This^[1] is the second of a two-part article analysing the Court of Justice of the European Union (CJEU) judgment in Tondela which addresses no-poach agreements, made in the context of the Covid-pandemic, by professional football clubs. Part 1 (see here) examined whether such an agreement is a restriction of competition ‘by object’ at all. Part 1 set out how, even though the CJEU described the arrangement as a “manifest restriction of a competitive parameter”,^[2] it declined to treat that fact as sufficient in and of itself to constitute a "by object restriction": the ‘by object’ characterisation turns on a structured assessment of the agreement’s content, context and objectives, which the CJEU left to the referring national court to conduct.

This article is Part 2, which turns to the CJEU’s second question. Assuming the agreement falls within scope of the prohibition in Article 101(1) TFEU (prohibited anti-competitive agreements), can it nonetheless avoid being deemed unlawful? This second part works through the legitimate-objective route derived from Wouters and Meca-Medina;^[3] the suitability, necessity and proportionality test the CJEU applied; the CJEU’s answers to the referred questions; and the practical blueprint the judgment offers to clubs and governing bodies seeking to defend such arrangements in future.

This article looks at:

• The legitimate-objective defence: protecting the regularity of sporting competition
  • Applying the test: suitability, necessity and proportionality
  • Sporting integrity as a recognised objective: the role of Lehtonen
  • What the referring national court must now decide
• CJEU vs Advocate General: Convergence in outcome, divergence in tone
• Summarising the Referred Questions and the CJEU's Answers
  • Question 1 (addressed with Question 2): Can the agreement escape Article 101(1)?
  • Question 3: Is the agreement a restriction ‘by object’?
• Concluding Remarks: A blueprint for defence, not replication