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A breakaway league in professional cycling: issues for the governance and organisation of the sport

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Abstract

This article examines the prospect of a breakaway league in the sport of professional cycling. The central matter considered is the role of the Union Cyclists Internationale (UCI) as a sport governing body in the organisation of professional road cycling and the capacity of the organisation to invoke restrictive rules to attempt to inhibit the formation of a breakaway league. This includes an examination of how the competition and freedom of movement laws of the Treaty on the Functioning of the European Union apply to restrictive rules of sports bodies, focussing on how the overall context of professional road cycling may influence the chances of the UCI defending its rules from being invalidated. A number of unique aspects of the economics of professional road cycling and of the organisation and structure of the sport are considered. The conclusion drawn is that the overall context of the sport militates against the UCI being able to hinder the formation of a breakaway league through use of restrictive rules. To conclude, there is a discussion of how these issues may be taken into account in the reform process currently being undertaken by UCI.

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Notes

  1. For example, http://www.cyclingnews.com, ‘French Senate releases positive EPO cases from 1998 Tour de France’, 24 July 2013; http://www.cyclingnews.com/news/french-senate-releases-positive-epo-cases-from-1998-tour-de-france. Accessed 27 July 2013.

  2. Brian Cookson is the candidate who successfully challenged UCI President Pat McQuaid in an election held in September 2013.

  3. The preceding articles were: ‘The Union Cycliste Internationale: a study in the failure of organizational governance of an International Federation’, (2013) ISLJ, Volume 13, Issue 1, pp. 71–81, http://link.springer.com/article/10.1007%2Fs40318-013-0007-3; and ‘The Unrepresentative and Discriminatory Governance Structure of Cycling—What Role for the International Olympic Committee?’ (2012) 1/2 ISLJ 27. The author also published an earlier article that focussed on the role of the UCI in its dispute with the grand tour organisers: ‘The UCI ProTour: An Enduring Reform or a ‘Train Wreck’ Waiting to Happen?’ (2007) 2 Australian and New Zealand Sports Law Journal 15. http://www.austlii.edu.au/au/journals/ANZSportsLawJl/2007/2.html

  4. Hoehn (2006), p. 227.

  5. Hoehn (2006), pp. 228–229.

  6. COM (2007) 391, p. 2.

  7. See Weatherill (2011), pp. 38, 41.

  8. See Greig v Insole (1978), 347 re cricket; Buckley v. Tutty (1971) re Australian Rules Football; URBSFA v. Bosman (1995) para 106; News Limited v Australian Rugby Football League Ltd (1996); FIA Formula One Championship, IP/99/434, 30 June 1999 (Formula One); English First Division Rugby Clubs v RFU & IRB, complaint to European Commission, 1999 (unreported); Re Televising Premier League Football Matches (2000) EMLR 78 (football); Hendry v WPBSA (2002) U.K.C.L.R. 5, para 114–116 (snooker); MOTOE (2008) (motor sport); Australian Ice Hockey Federation (t/a Ice Hockey Australia) 2010; Show Jumping Ireland, Irish Competition Authority 2012; Pilkadaris Terry v Asian Tour (2012) SGHC 236 (Singapore, High Court, 27 November 2012) (golf); Swedish Automobile Sports Federation v Swedish Competition Authority (2012), p. 16 (motor sports); Barmi v BCCI 2013, (Cricket); Pillay v Hockey India 2013 (hockey).

  9. Greig v Insole (1978) 1 WLR 302, 347. See also Erika Szyszczak, Competition and Sport (2007), pp. 106–107.

  10. Hoehn (2006), p. 232.

  11. Farrand (2011).

  12. See for example Benson (2011).

  13. WSC is a Luxembourg registered company that is a joint venture between the Gifted Group Ltd and Rothschilds. There has also been reported interest from broadcaster BSkyB and Newscorp: Gibson (2013).

  14. While described as a ‘breakaway’, the economics of cycling means that the UCI has little control over the earning and sharing of television broadcast rights. It therefore makes little sense to ‘break away’ from the governing body as a means to address this issue.

  15. Slater (2012).

  16. Benson (2011).

  17. Keenan (2012).

  18. Stensholt (2013); Morrow and Idle (2008), p. 14. But see Cyclismas 2011.

  19. Stensholt (2013); Morrow and Idle (2008), p. 14. But see Cyclismas (2011).

  20. Stensholt (2013); Morrow and Idle (2008), p. 14. But see Cyclismas (2011).

  21. Keenan (2012).

  22. Stensholt (2013).

  23. UCI (2011) pp. 78–79.

  24. Rothschilds estimates that its league would generate close to €39 million by 2017. The franchises would be required to invest €3.5 million, or €250,000 each, with €550,000 coming from Gifted and a major stake of €20 million from Rothschild. The proposal envisages profits of €85 million within 5 years, with the total project worth €330 million by that point.

  25. See Freeburn (2013).

  26. UCI President quoted by Benson (2011).

  27. UCI Press release 2012.

  28. Rogers (2013).

  29. UCI President Pat McQuaid quoted by Rogers (2013).

  30. UCI Regulation 1.2.019.

  31. UCI Regulation 1.2.026.

  32. UCI Regulation 1.2.004. The UCI relied upon this rule to block a trophy proposed by the organisers of cycling’s grand tours: see Kroner (2006).

  33. UCI Regulation 1.2.037.

  34. See Siekmann (2011), pp. 83–84; Weatherill (2003).

  35. Walrave & Koch v UCI (1974); Dontiv. Mantero (1976); URBSFA v. Bosman (1995).

  36. Olympique Lyonnais, Case C-414/93.

  37. Deliege v. Ligue de Judo (2000).

  38. Lehtonen et al. v. FRSB (2000).

  39. Meca-Medina and Majcen v. Commission (2006).

  40. IP/99/782, 21 Oct. 1999. 26; IP/02/585, 18 April 2002.

  41. Mouscron, IP/99/965, 9 Dec. 1999, IP99/956, 9 June 1999.

  42. AEK Athens and Slavia Praguev. UEFA, 20 August 1999; O.J. 1999, C 363/2. 34. IP/02/942, 27 June 2002.

  43. Decision (2000).

  44. See UEFA Champions League 2003; German Bundesliga 2005; and FA Premier League 2008.

  45. See for example Greig v Insole (1978); Hendry v WPBSA (2002), p. 5; Australian Ice Hockey Federation (2010); Show Jumping Ireland (2012); Pilkadaris Terry v Asian Tour (2012) SGHC 236 (Singapore, High Court, 27 November 2012); Swedish Automobile Sports Federation v Swedish Competition Authority (2012), p. 16; Barmi v BCCI (2013); Pillay v Hockey India (2013).

  46. See Articles 101 and 102 of the TFEU. In the application of competition law in other jurisdictions, the approach would be similar: see for example Addyston Pipe and Steel Co. v. United States (1899), applying the ‘rule of reason’ to the application of competition law in the United States.

  47. TFEU, Articles 45 and 56.

  48. Eastham v. Newcastle United Football Club Ltd. (1964) Ch. 413, 431, per Wilberforce J.

  49. Meca-Medina and Majcen v. Commission (2006), para 26.

  50. Wouters JW Savelbergh, PriceWaterhouse Belasting adviseurs BV v Algemen Raad van de Nederlandse Orde van Advocaten (2002), para 97.

  51. European Commission (2007).

  52. Blackshaw (2007).

  53. It is assumed for this purpose that the UCI satisfies the requirement of being an ‘undertaking’ or an ‘association of undertakings’ for the purposes of Articles 101 and 102 of the TFEU.

  54. Union Royale Belge des Societies de Football ASBL v Jean-Marc Bosman (1995) ECR 1-4921; Deliege v. Ligue de Judo (2000); Lehtonen et al v. FRSB (2000).

  55. UCI Regulation 2.15.127. Confusingly, while the WorldTour has altered its name from the preceding ProTour, the teams continue to be known as UCI ProTeams: UCI Reg 2.15.003.

  56. Stensholt (2013); Duff (2011).

  57. Stensholt (2013).

  58. Morrow and Idle (2008); Stensholt (2013).

  59. Morrow and Idle (2008).

  60. UEFA 2013. Italian club Juventus actually earned more than Bayern, with €65 m.

  61. For example, in 2012, Formula 1 teams shared in a prize pool of $700 m: see http://www.hindustantimes.com/motor-sports/topstories/How-the-F1-pie-is-shared/SP-Article1-949214.aspx. Accessed 25 July 2013; The 2013 Wimbledon Tennis Championship prize pool was £22.56 m: see http://www.wimbledon.com/pdf/Press_Release_Prize_Money_2013.pdf. Accessed 25 July 2013.

  62. Cycling Central 2012. See also Weislo (2011). This is so notwithstanding the value returned for sponsors of cycling: Cyclingnews 2013.

  63. For the psychological factors that are involved in fan choices and behaviors, see Bee and Havitz (2010), pp. 140–157; Wann (1995), pp. 377–396; Gantz and Wenner (1995), pp. 56–74; Funk and James (2001), pp. 119–150; Wilkins (2012).

  64. Nafzinger (2008). See also Jones (2011), p. 144.

  65. Nafzinger (2008).

  66. This is so even in England, notwithstanding that the FA does not operate the English Premier League. The Premier League consists of football clubs that are members of the FA and the League forms an integrated part of the tiers of football in England.

  67. See Football Association, Articles of Association, articles 12 and 14. http://www.thefa.com/~/media/Files/TheFAPortal/governance-docs/rules-of-the-association/articles-of-association.ashx. Accessed 9 July 2013.

  68. http://www.premierleague.com, http://www.premierleague.com/content/premierleague/en-gb/about/who-we-are.html. Accessed 9 July 2013.

  69. http://www.football-league.co.uk, http://www.football-league.co.uk. Accessed 9 July 2013.

  70. http://www.TheFA.com, http://www.thefa.com/my-football/club-leagues/league-steps-1-7. Accessed 9 July 2013.

  71. http://www.uefa.com, http://www.uefa.com/memberassociations/association=eng/index.html. Accessed 9 July 2013.

  72. http://www.uefa.com, http://www.fifa.com/associations/association=eng/index.html. Accessed 9 July 2013.

  73. See Statutes of the European Cycling Union, Article 4, http://uec-federation.eu/img/2/Statutes_of_the_European_Cycling_Union.pdf. Accessed 9 July 2013.

  74. See British Cycling Federation 2011.

  75. In 2013, there are 19 ProTeams, 20 Professional Continental Teams and 158 Continental Teams: see UCI Teams. http://www.uci.ch/templates/BUILTIN-NOFRAMES/Template1/layout.asp?MenuId=MTYzMzU&LangId=1. Accessed 11 July 2013.

  76. The European Commission, in its 2007 White Paper on Sport considered sports ‘leagues’ as inherently inclusive of representative structures: Commission of The European Communities 2007, p. 13. Though the pro-cycling teams and the race organisers are not totally without a say over the management of their sport: see UCI Regulation 1.2.005. See also Section XV of Part II of the UCI Regulations. Operated by the UCI since 2000, the PCC is a 12 member group made up of six members chosen by the UCI Management Committee, two by the International Association of Professional Cycling Groups (AIGCP) to represent the professional cycling teams, two by the Associated Professional Cyclists (CPA) to represent the interests of riders and two by the International Association of Organisers of Cycling Races (AIOCC) to represent the interests of race organisers.

  77. UCI Regulation 1.1.043. Riders can only be awarded points In UCI WorldTour races under the UCI ranking system if they are members of a UCI ProTour team: Regulation 2.10.001.

  78. UCI Regulation 2.15.127. Confusingly, while the WorldTour has altered its name from the preceding ProTour, the teams continue to be known as UCI ProTeams: UCI Reg 2.15.003.

  79. UCI Regulation 2.15.110 requires WorldTour teams to employ a minimum of 23 and a maximum of 30 riders. Pro-Continental teams are required to employ a minimum of 16 riders; they are also required to employ 3 sports directors and 5 other full time staff for the whole of the year: UCI Regulation 2.16.001.

  80. This has important consequences for the capacity of cycling to attract and retain supporters: see For the psychological factors that are involved in fan choices and behaviors, see Bee and Havitz (2010), pp. 140–157; Wann (1995), pp. 377–396; Gantz and Wenner (1995), pp. 56–74; Funk and James (2001), pp. 119–150; Wilkins (2012).

  81. Nafzinger (2008).

  82. See UCI 2012. Some of these events pre-date the formation of the UCI e.g. the Paris-Roubaix race.

  83. The newly created Tour of Beijing.

  84. In 2008, a number of major races including the Tour de France were staged outside the control of the UCI: see Quénet (2008).

  85. See UCI Europe Tour. http://www.ucieuropetour.com/templates/UCI/UCI1/layout.asp?MenuId=MjA2Ng&LangId=1. Accessed 10 July 2013.

  86. The ranking or classification of a race determines, amongst other things, what teams are entitled to enter the event: UCI Regulation 2.1.005.

  87. UCI Regulation 1.2.001: ‘The calendar is the chronological list of cycling races by discipline, category and/or gender.’ This is not a case of a sports federation outsourcing the organisation of a sports league: see Norros (2011), p. 29.

  88. UCI Regulation 1.2.004.

  89. UCI Regulation 1.2.005. While they are separately identified in the UCI Regulations, it appears that the World Calendar is in fact the same as the WorldTour Calendar.

  90. ProTeams that hold a WorldTour license also participate in ProContinental races for example. Similarly, WorldTour races include ProContinental teams selected by the race organiser, in addition to the WorldTour teams.

  91. UCI Regulation 2.15.001.

  92. UCI Regulation 2.15.255.

  93. See Freeburn (2007); Morrow and Idle (2008); Stokes (2008).

  94. UCI Regulation 2.15.255. Included in the different regulatory regime is an additional power for unlicensed WorldTour event organisers to exclude teams and riders whose presence may ‘seriously damage the image of cycling or the event’. There is also a lesser requirement to support the development of cycling (UCI reg. 2.15.264) and to participate in WorldTour promotional and merchandising activities (UCI reg. 2.15.265) than the requirements imposed by UCI Regulations on licensed events.

  95. UCI Regulation 2.10.007. It also classifies nations according to the first 5 riders of each nationality in the individual classification: Regulation 2.10.005. The nation ranking is important for World Championships and Olympics races as it determines the number of riders who qualify to compete from each nation.

  96. UCI Regulation 2.10.004. What appears to be a similar system operates at the Continental level: see http://www.europetour.com, http://www.ucieuropetour.com/templates/BUILTIN-NOFRAMES/Template3/layout.asp?MenuId=MjA2OQ&LangId=1. Accessed 11 July 2013.

  97. UCI Regulation 2.10.002.

  98. See http://www.uciprotour.com/templates/BUILTIN-NOFRAMES/Template3/layout.asp?MenuId=MTY3Mzc&LangId=1. Accessed 6 May 2013. See also http://www.uciworldtour.com/templates/BUILTIN-NOFRAMES/Template3/layout.asp?MenuId=MTYwNzk&LangId=1 for the UCI’s reporting of the results of the 2012 season.

  99. See http://www.uciprotour.com, http://www.uciprotour.com/templates/BUILTIN-NOFRAMES/Template3/layout.asp?MenuId=MTY2NzU&LangId=1. Accessed 11 July 2013.

  100. Deloitte (2013), p. 12.

  101. Hood (2013). See also Deloitte, TFEU, Articles 45 and 56, p. 12; Kröner (2010); Weislo (2010); http://www.inrng.com, ‘The World Tour of Confusion’, 24 January 2013, http://inrng.com/2013/01/eisel-questions-the-world-tour/. Accessed 11 July 2013.

  102. UCI Regulations, article 1.1.002. The UCI licenses UCI Pro Teams and UCI Professional Continental Teams: article 1.1.041. Riders’ licences are issued by the riders’ home federations: article 1.1.011. All licence holders are required to comply with the UCI Constitution and Regulations: article 1.1.004.

  103. UCI Regulation 2.15.003.

  104. UCI Regulation 2.15.205 and 2.15.261.

  105. UCI Regulation 2.15.009. For 2013, 19 ProTeam licences have been issued due to the successful challenge in the Court of Arbitration for Sport by the Katusha team to the UCI’s refusal of its licence: see http://www.inrng.com, ‘Katusha’s CAS Appeal; How it won back its licence’ 6 May 2013, http://inrng.com/2013/05/katushas-cas-clash/. Accessed 11 July 2013. The success of the Katusha team in challenging the UCI’s awarding of licences led the UCI to amend its rules in July 2013 to attempt to prevent any future challenges.

  106. UCI Regulation 2.15.011.

  107. See UCI Regulation 2.15.011(c), (d) and (e). However, see Katusha CAS case, European Commission (2007), in relation to the application of the ‘ethical’ criterion.

  108. Maxwell (2013); See http://www.uci.ch, ‘Sporting Criterion Calculation of Teams Sporting Value’, http://www.uci.ch/Modules/BUILTIN/getObject.asp?MenuId=MTY2NjU&ObjTypeCode=FILE&type=FILE&id=ODYwOTU&LangId=1. Accessed 11 July 2013.

  109. http://www.uci.ch, ‘Sporting Criterion Calculation of Teams Sporting Value’, http://www.uci.ch/Modules/BUILTIN/getObject.asp?MenuId=MTY2NjU&ObjTypeCode=FILE&type=FILE&id=ODYwOTU&LangId=1. Accessed 11 July 2013. See also http://www.inrng.com, ‘UCI Publish Sporting Criteria, 2 April 2013, http://inrng.com/2013/04/uci-publish-sporting-criteria/. Accessed 11 July 2013.

  110. See for example Benson and Farrand (2011).

  111. http://www.inrng.com, UCI World Tour: The Secret Points System Explained, 13 November 2012, http://inrng.com/2012/11/sporting-value-explained/. Accessed 12 July 2013.

  112. See Hood (2013).

  113. Benson and Farrand (2011).

  114. See for example FIA/FOA (Formula One) European Commission investigation, COMP/36.638.

  115. Article 9, UCI Rules of Good Governance. http://www.uci.ch/Modules/BUILTIN/getObject.asp?MenuId=MTY4MzM&ObjTypeCode=FILE&type=FILE&id=MzQxMDk&LangId=1. Accessed 10 July 2013.

  116. UCI Regulation 1.2.005. See also Section XV of Part II of the UCI Regulations. Operated by the UCI since 2000, the PCC is a 12 member group made up of six members chosen by the UCI Management Committee, two by the International Association of Professional Cycling Groups (AIGCP) to represent the professional cycling teams, two by the Associated Professional Cyclists (CPA) to represent the interests of riders and two by the International Association of Organisers of Cycling Races (AIOCC) to represent the interests of race organisers.

  117. See for example Deloitte (2013), p. 9 and accompanying text. The PCC is recognised by the UCI Rules of Good Governance, which provide that ‘Under the aegis of the UCI, the Professional Cycling Council is responsible for the management of road cycling at the highest level.’: UCI, UCI Rules of Good Governance, Article 9, UCI Rules of Good Governance. http://www.uci.ch/Modules/BUILTIN/getObject.asp?MenuId=MTY4MzM&ObjTypeCode=FILE&type=FILE&id=MzQxMDk&LangId=1. Accessed 10 July 2013, Rule 1. Rule 4 provides that ‘By means of delegation, the Professional Cycling Council has the authority of rulemaking for professional road cycling’.

  118. UCI Regulation 2.15.156.

  119. UCI Regulation 1.2.005. An internal appeal against a rejection of an application to have an event listed on a calendar is available to the UCI arbitral board, but the board’s decision is final and not subject to appeal: UCI Regulation 1.2.013.

  120. See for example UCI Regulations 2.15.017 and 2.15.158. Licence Commission decisions are also appealable to CAS: UCI Regulation 2.15.226.

  121. For example, the newly created Tour of Beijing; See also Freeburn (2013), pp. 78–79.

  122. FIA (1999).

  123. MOTOE (2008), pp. 51–52.

  124. The European Commission, in its 2007 White Paper on Sport considered sports ‘leagues’ as inherently inclusive of representative structures: Commission of The European Communities 2007, p. 13. See also Commission of the European Communities (1999), p. 644.

  125. Commission of the European Communities (1999), p. 2.

  126. UCI 2011, p. 93. See UCI Regulation 2.15.243 under which it appears that no funds are allocated to the notional ‘Solidarity Fund’ (UCI Reg. 2.15.246) until the UCI WorldTour Reserve Fund achieves a surplus of CHF 9 million. The UCI’s most recently published accounts show that fund with a balance of just over CHF 2 million, a decline in value from the start of the financial year.

  127. See for example Greig v Insole (1978) 1 WLR 302 at 349.

  128. For example, in Meca Medina, the court determined that ‘the restrictions thus imposed by those [anti-doping] rules must be limited to what was necessary to ensure the proper conduct of competitive sport’: Meca-Medina and Majcen v. Commission (2006) ECR I-6991.

  129. UCI President Pat McQuaid quoted by Rogers (2013).

  130. UCI Communication Services 2013. Although, in an apparent conflict with advice from KPMG which formed the basis of an instruction issued by the UCI Management Committee at the same meeting for the UCI administration to ‘deepen its transparency’, the UCI has not released this report.

  131. Farrand (2013). For a description of the structure and nature of the UCI Management Committee, see Freeburn (2012).

  132. A full copy of the 22 May 2013 stakeholder report ‘A Bright Future for Cycling’ commissioned by the UCI from Deloitte was released by the UCI on 4 July 2013: Deloitte (2013).

  133. Deloitte (2013), p. 9.

  134. UCI Communication Services, UCI President Pat McQuaid quoted by Rogers (2013).

  135. See Freeburn (2013), pp. 75–77.

  136. John Fahey quoted in Cycling News 2013.

  137. Weatherill (2011), p. 40. The example given of a ‘smart’ sports body was UEFA.

  138. The European Court of Justice has interpreted what is now Article 101 of the TFEU to exclude agreements concluded in the context of collective negotiations between management and labour in pursuit of the improvement of conditions of work and employment: E.g. Albany International v. Stichting Bedrijfspensioenfonds Textielindus- trie (1999) ECR 1-5751; Case C-219/97, Maatschappij Drijvende Bokken BV v. Stichting Pensioenfonds (1999) ECR 1-6121.

  139. With some theoretical economic modelling suggesting that professional cycling would benefit from a promotion and relegation system for cycling teams: see Rebeggiani and Tondani 2006.

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    Lloyd Freeburn

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Freeburn, L. A breakaway league in professional cycling: issues for the governance and organisation of the sport. Int Sports Law J 13, 193–210 (2013). https://doi.org/10.1007/s40318-013-0030-4

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