On 30 April 2026, the Court of Justice of the European Union delivered its judgment in the Portuguese football no-poach case.1 The ruling is of particular interest in light of the European Commission's increased scrutiny of labour market conduct under EU competition law; it offers practical guidance for businesses seeking to assess their antitrust exposure to no-poach arrangements.
No-poach agreements amongst 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 each other's professional football players who unilaterally terminated their employment contract due to COVID-19-related issues whilst the 2019/2020 season (extended due to COVID beyond normal transfer limits) was ongoing. In April 2022, the Portuguese competition authority issued a final decision, declaring the no-poach agreement as anti-competitive and 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 (the "Court") to provide guidance on (i) whether the no-poach agreement should be classified as an agreement restrictive "by object", and (ii) whether it could fall within any available exemptions under EU competition law.
Key takeaways from the judgment
No-poach agreements are anticompetitive by "object", but this categorisation can be displaced through a contextual analysis
A "by object" classification relieves competition authorities of the burden of proving actual anti-competitive consequences, in contrast to a "by effect" finding, which requires tangible evidence of harm to competition and is therefore harder for regulators to establish. The Court confirms that no-poach agreements will, as a rule, fall within the "by object" category. Building on recent case law, the Court states that "no-poach agreements can be treated as being equivalent to horizontal agreements for the sharing of 'sources of supply' within the meaning of Article 101(1)(c) TFEU". In the labour market context, this means limiting or controlling the essential parameter of competition consisting in the recruitment of highly skilled workers, which could indirectly lead to lower wages and a weaker bargaining position for workers. At the same time, the Court leaves the door slightly open to displacing this default categorisation through an analysis of a no-poach agreement's (i) economic and legal context and (ii) its objectives.
Context matters: The Court took into account that the COVID-19 pandemic had an impact on the competitive functioning and specificities of professional football, which relies, amongst others, on stability of the composition of the player rosters for the integrity of professional football competition. In particular, the Portuguese 2019/2020 football season was extended beyond the normal limits due to COVID-19 and 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-19, the season extended 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 possible when the season ended in the normal period. Furthermore, the restrictions only applied to Portuguese clubs; players could always move from or to foreign clubs. The impact on players was therefore moderate. Clearly, these factors are out of the ordinary – as many things were under COVID-19 – 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 the "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.
Objectives of a no-poach agreement: The Court emphasises the pro-competitive objective of the agreement (to maintain stability in clubs' player rosters enabling the integrity of the sport), which exists alongside the anti-competitive one (undermining competition in players recruitment). Although the Court doesn't draw any conclusion from this and leaves it to the referring national court to conclude, this emphasis suggests that a pro-competitive aim is a factor to consider when analysing whether a no-poach agreement can escape "by object" classification.
Regularity of sporting competitions can be a legitimate objective in the public interest
The Court's settled case law recognises that an agreement may escape the prohibition in Article 101 (1) TFEU if it is justified by a legitimate public interest objective which is not per se anti-competitive in nature, is genuinely necessary, and does not go beyond what is necessary. However, this exemption framework is only available where the agreement is not classified as having a "by object" restriction. Applied to the present case, the Court states that if the referring court concludes that the no-poach agreement does not restrict competition "by object" but does so "by effect", it may then assess the agreement under this framework. Ensuring the integrity of sporting competitions is a legitimate public interest objective which the Court has repeatedly recognised as important in football in past cases. In this specific case, the Court notes that the assessment and conclusion is up to the referring national court.
Practical takeaways and outlook
- Default categorisation of anti-competitive nature for no-poach agreements: The judgment confirms that any agreement — regardless of sector — by which competing firms co-ordinate on not hiring each other's employees or candidates starts from an assumption of being a "by-object" infringement. There is, however, a narrow path through which parties may displace that categorisation by referring to the economic and legal context of the agreement and its underlying objectives.
- Crisis contexts do not create automatic safe harbours: The judgment suggests that extraordinary circumstances such as pandemic, force majeure or an economic crisis could mitigate but not eliminate antitrust exposure of no-poach agreements. Such factors must be formally integrated into the competition-law analysis, not merely asserted as justification.
- The legitimate objective exemption has limited applicability in practice: The applicability of the exemption is limited to no-poach agreements which pursue legitimate objectives in the public interest and so would likely be available only to agreements concluded between certain types of market actors. Commercial interests do not qualify as public-interest objectives.
- 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.
1 CD Tondela and Others v Autoridade da Concorrencia, Case C-133/24.
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