The Provincial Appeal Court of Madrid, 28th Section, issued a groundbreaking judgment on July 5, 2023, declaring an abuse of dominant position by the Royal Spanish Football Federation (RFEF) in the market for audiovisual rights. The Court’s decision also nullified certain clauses in the bidding process for the audiovisual rights of the prestigious Cup of H. M. the King for the years 2019 to 2022.
The ruling, which is of significant importance in the private application of Competition Law, sheds light on the consequences of abusive practices which are contrary to Art 102 TFEU and strengthens the protection of competition in the audiovisual rights market.
The legal dispute arose when Mediapro, a leading operator in the global audiovisual rights market, represented by Garrigues’ Dispute Resolution team: Litigation and Arbitration, filed a lawsuit against the RFEF. Mediapro alleged that the RFEF had manipulated the bidding process, resorting to various strategies to exclude them from the market, despite submitting the best bids.
The Court confirmed that the RFEF indeed abused its dominant position by including clauses in the bidding process designed to exclude or harm Mediapro. Additionally, the Court found the RFEF’s arbitrary cancellation of the bidding for audiovisual rights in Spain, without a valid reason, to be an additional abuse of its dominant position. This decision effectively masked the unlawful act and further disadvantaged the plaintiff.
Of particular significance in the Court’s ruling was its stance on the nullity of the clauses of the bidding process that allowed the RFEF to perpetrate the abuse. Although the competition law provisions, specifically Articles 102 TFEU and 2 LDC, do not explicitly provide for the nullity of such clauses, the Court deemed it necessary to apply sanctions for acts that contravene the prohibition contained in said legal provisions. As a result, the Court declared the nullity of the abusive clauses.
The Court emphasized that an abuse of dominant position can be declared based on the intrinsic potential to produce harmful effects for competition. The actual success of the abusive conduct cannot be a determining factor to declare its anti-competitiveness, but rather the intent and actions taken to abuse the dominant position.
Regarding compensation for damages, the Court affirmed that Mediapro is entitled to compensation for the harm caused by the RFEF’s abusive actions. The exact amount will be determined in the execution phase of the judgment, capped at the amount requested in the claim of c. 12m€.
This landmark judgment sets a crucial precedent for private Competition Law cases in Spain, providing clarity on the consequences of abusive practices in bidding processes and reinforcing the protection of fair competition. While the decision is not final and may be subject to further appeals, it represents a significant step forward in ensuring a level playing field in the audiovisual rights market.
Garrigues’s team was led by Ana Garrote (partner), Juan Carlos de la Calle (senior associate) and Antonio Fabregat (associate).