More nuanced approach to the assessment of no-poach agreements under EU competition law? AG Emiliou Opinion in the Portuguese COVID football no-poach case

On 15 May 2025, Advocate General Emiliou issued his opinion in the Portuguese football no-poach case.¹ The AG opinion is of particular interest given the European Commission's increased scrutiny of labour market related offences under EU competition law. The opinion appears to endorse more flexibility and a more context-based rationale when analysing compatibility of no-poach agreements under EU competition law. Although non-binding, AG opinions are followed by courts in majority of cases.

No-poach agreements among Portuguese football clubs: Background

In April 2020, the main football clubs in the Portuguese First and Second Division concluded a no-poach agreement with national football associations pursuant to which the clubs agreed not to hire from each other professional football players who unilaterally terminated their employment contract due to COVID-19 related issues while the 2019/2020 season (extended due to COVID beyond normal transfer limits) was ongoing. In April 2022, Portuguese competition authority issued a final decision declaring the no-poach agreement as anti-competitive in breach of Article 101 (1) TFEU. The authority imposed financial penalties on the involved clubs. The clubs appealed the decision before the Portuguese Competition, Regulation and Supervision Court. The court asked the Court of Justice of the EU to provide guidance on (i) whether the no-poach agreement should be classified as an agreement restrictive "by object", and (ii) whether it can fall within the exemption introduced by Meca-Medina case law.

Key takeaways from the Advocate General's (AG) Opinion

Context always matters: the no-poach agreement in question is not per se anti-competitive

The AG takes the view that the economic rationale of most no-poach agreements between competitors is anti-competitive and have all the characteristics to be considered prima facie restrictive of competition "by object". That means that such agreements are typically considered inherently anti-competitive under EU competition law, provided they cause a sufficient degree of harm to competition and have a clear anti-competitive economic rational. In that case, there is no need to demonstrate their actual effects on the market.

He notes that such agreements can be regarded as a form of sharing a source of supply, which is expressly forbidden by Article 101 (1) (c) of TFEU. The AG adds that by no-poach agreements companies "lock in their staff with a freezing effect on the terms of their contract", and this results in "suboptimal allocation of human resources, loss of efficiency and/or innovation and [..] lower wages for staff". The AG notes that no-poach agreements clearly harm the labour market, and this negative impact may extend to the consumer market as well, affecting the products or services that these companies provide.

However, the AG highlights that the analysis cannot, by any means, stop there: the content, the legal and economic context and the objectives of the specific agreement at issue should be taken into consideration to verify whether there are specific circumstances that may cast doubt on the harmful nature of the agreement in question. The AG emphasises that "context always matters" and disagrees with the EC which argues that it is unnecessary to consider the context since the agreement at issue constituted a restriction of competition "by object". In fact, he argues that "a detailed analysis of the context (as well as the content and objectives) may be necessary where harmful nature of an agreement is unclear" and competition authorities need to identify the primary economic reasons for the cooperation of companies in question. The AG finds that this is the case here as the agreement's anti-competitive nature is "anything but straightforward" having regard to its limited scope, its context and its objective. Accordingly, he concludes that the no-poach agreement in this case should not be classified as restriction of competition "by object" if its genuine purpose was to preserve the fairness and integrity of the sports competition affected by the COVID-19 pandemic.

The context that he highlighted was that the Portuguese 2019/2020 football season was extended beyond the normal limits due to COVID and that the no-poach deal only extended until that season ended. In other words, the duration was rather limited. Moreover, normally there are restrictions on transfers within a season. However, due to COVID, the season would extend beyond the normal transfer windows (which are set based on the calendar year). That led to the risk that a rich club could try to hire players from other clubs for the last matches of the season and thus influence the outcome in a way that was not normally possible when the season ended in the normal period. The AG also noted that the restrictions only applied to Portuguese clubs; players could always move from or to foreign clubs. The impact on players was therefore moderate, especially since they would receive more wages from their clubs under the deal than if they had to rely on the state temporary employment scheme in force. Moreover, the AG points out that some weeks before the conclusion of the no-poach agreement, the European Competition Network issued a joint statement in which it acknowledged the possible need for cooperation between businesses. Clearly, these factors are out of the ordinary—as many things were under COVID—but the key point here is that context matters. If the context takes a restriction out of the ordinary course, this may take it out of "by object" bucket. How far out of the ordinary one needs to be is a factual analysis which in this case is for the national court. 

The no-poach agreement can be probably justified under the exemption laid down in Meca-Medina case law

The AG emphasises that an exemption under Meca-Medina case law could only be applicable if an agreement is not classified as "by object" restriction. The exemption applies to restrictive agreements that may otherwise violate Article 101 TFEU provided that (i) they are justified by the pursuit of one or more legitimate objectives in the public interest which are not anticompetitive in nature, (ii) the specific means used to pursue those objectives are genuinely necessary for that purpose, and (iii) even if those means prove to have an inherent effect of restricting or distorting competition, that inherent effect does not go beyond what is necessary, in particular by eliminating all competition. In other words, if an agreement meets the conditions, the Article 101 (1) TFEU does not apply.

The AG notes that Meca-Medina case law applies in particular in cases involving agreements or decisions adopted by professional or sporting associations that aim to pursue ethical or principled objectives, and regulate professional activities.² He observes that a purely private economic objective cannot constitute a legitimate objective in the public interest within the meaning of the case law.³ Additionally, he notes that the Meca-Medina exemption "shares its DNA" with the doctrine of ancillary restraints in that the conditions for the doctrine to apply are similar to the conditions under the Meca-Medina case law.⁴ Three conditions must be satisfied for a restriction to be classified as an ancillary restraint (i) the main operation is not anti-competitive in nature, (ii) the restriction must be necessary for the implementation of that operation, and (iii) the restriction must be proportionate to the objectives underlying the operation in question (i.e. there are no realistic alternatives which are less restrictive of competition).

Although the referring Portuguese court is best placed to assess whether the no-poach falls within the Mecca-Medina exemption, the AG preliminarily concludes that the no-poach can be probably justified as it was designed to limit, as much as possible, the impact on competition between the clubs involved, and alternative measures that are equally effective and less restrictive means were difficult to identify. Notably, he points at the following features of the arrangements that appear to be key to the analysis (i) the limited geographical, personal and temporal scope of the no-poach agreement; (ii) the urgency of the matter and the uncertainty and complexity of the situation caused by the pandemic, which required measures that were simple in design and implementation; and (iii) the relatively small impact of the agreement on the economic activity of the football players involved. 

Takeaways and outlook

• EC's anti no-poach stance. The EC made clear in its May 2024 policy brief that generally no-poach arrangements are likely to be considered as restrictions of competition "by object" and unlikely to be exempted under the ancillary restraints doctrine or Article 101 (3) TFEU. For more details, read our alert here. On 2 June 2025, the EC issued its first decision fining companies EUR 329 million for no-poach arrangements facilitated by an acquisition of a minority no-controlling stake between the parties. The conduct initially concerned limited reciprocal no-hire clauses for certain employees which was then expanded further.
   
• AG advocates more nuanced approach to the assessment of no-poach agreements. Whilst the AG's baseline position seems to align with the EC in that the economic rationale of most no-poach agreements between competitors is anticompetitive,⁵ he emphasises that context always matters and needs to be carefully considered before concluding that a no-poach agreement is per se anticompetitive. Here, the AG opinion offers a different perspective on the "by object" classification, recognising that the agreement's reasonable objective, extraordinary circumstances and its limited scope (duration and geography) can remove what would otherwise be considered to be a "by object" anti-competitive agreement.
   
• No-poach agreements can be justified under certain circumstances. The applicability of the Meca-Medina exemption is limited to no-poach agreements that pursue legitimate objectives in the public interest and so would be likely available only to agreements concluded between certain type of actors such as professional or sporting organisations.
   
• No-poach risk mitigation. Businesses can mitigate the risk of no-poach agreements violating Article 101 TFEU by narrowly tailoring their scope to what is necessary for legitimate business objectives. This requires careful consideration of the overall context and purpose, for example by limiting both the categories of employees covered and the duration of such restrictions.
   
• EC is vigilant to labour market related offences. Given the EC's heightened scrutiny of anti-competitive conduct in labour markets, the opinion provides helpful guidance under what circumstances no-poach agreements may be justifiable (should the EU court follow the opinion).

_{1 Advocate General Emiliou Opinion in CD Tondela and Others v Autoridade da Concorrencia, Case C-133/24.
2 AG Emiliou Opinion in ROGON GmbH & Co.KG, MVI Management GmbH DC v Deutsche Fusballbund e.V., Case C-428/23, paragraph 42. This is another AG opinion in a separate football-related case issued in parallel. 
3 Ibid., para 51.
4 Ibid, para 31. Three conditions must be satisfied for a restriction to be classified as ancillary restraint (i) the main operation is not anti-competitive in nature, (ii) the restriction must be necessary for the implementation of that operation, and (iii) the restriction must be proportionate to the objectives underlying the operation in question. 
5 The AG also agrees with the EC that no-poach can be classified as a form of sharing a source of supply.}

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