No-poach agreements remain firmly in the sights of EU and national competition authorities, who continue to treat such agreements as serious infringements of competition law, including through dawn raids carried out at premises in Ireland in recent years. Against that backdrop, the judgment of the Court of Justice of the European Union (CJEU) in CD Tondela and Others (Case C-133/24), delivered on 30 April 2026, is an important development. The Court confirmed that a no-poach agreement concluded between professional football clubs during the COVID-19 pandemic may potentially be compatible with EU competition law, while leaving the substantive assessment to the referring national court. The judgment is a rare instance of the CJEU acknowledging that a no-poach arrangement might escape the prohibition in Article 101(1) TFEU and will be of interest well beyond the sporting sector.
Background
In March 2020, the Portuguese authorities announced measures to contain the spread of COVID-19, and the Portuguese Professional Football League (LPFP) suspended all sporting competitions. The LPFP and the clubs of the First and Second Divisions then publicly committed not to recruit players who had unilaterally terminated their contracts with another participating club due to the pandemic.
In April 2022, the Portuguese Competition Authority found that the commitment was an agreement having as its object the restriction of competition on the market for the recruitment of players. The LPFP and a number of clubs appealed, and the Portuguese court referred questions to the CJEU on whether the agreement was restrictive of competition by object and, if so, whether it could nonetheless be held compatible with EU competition law.
The Court’s analysis
The CJEU reiterated that, in assessing whether an agreement restricts competition by object, it is necessary to examine: (i) the content of the agreement; (ii) the economic and legal context of which it forms a part; and (iii) its objectives.
Applying that framework, the Court observed that, by the agreement at issue, the professional football clubs concerned coordinated their conduct on the market for the recruitment of players who have already been trained or are currently undergoing training. That agreement, which was equivalent to a no-poach agreement, constituted a manifest restriction of a competitive parameter which plays an essential role in high-level sport. Moreover, the agreement at issue may have had an indirect, potential impact on the ‘purchase price’ of players, who are the clubs’ human resources.
However, the Court also emphasised that the agreement was concluded in the very specific context of the COVID-19 pandemic, which had a fundamental impact on the professional football sector. Although the pandemic did not, of itself, justify any departure from the prohibition of anti-competitive conduct, even in the field of sport, the national court must take those circumstances into account when characterising the agreement. The Court further acknowledged that the agreement pursued not only an anti-competitive aim but also an objectively pro-competitive aim, namely ensuring stability of player rosters in the event of resumption of the season.
On the question of justification, the Court held that ensuring the regularity of sporting competitions is a legitimate objective in the public interest, which may in principle justify rules of the kind at issue. It will, however, be for the referring court to carry out an in-depth examination of the suitability, necessity and proportionality (in the strict sense of the term) of the agreement.
Implications for Irish business
Although the case arose in a sporting context, the principles set out by the CJEU are of broader relevance to Irish businesses. Key lessons include:
- No-poach remains a high-risk area. The default position remains that no-poach agreements are likely to constitute restrictions of competition by object - i.e., by their very nature they are viewed as harmful to the proper functioning of competition -with all the enforcement consequences that follow, including significant fines, follow-on damages actions, and reputational harm. The CCPC is expected to take a similar approach to that of the European Commission.
- Crisis conditions do not provide a free pass. The Court was clear that the COVID-19 pandemic did not, of itself, disapply EU competition law. Irish businesses tempted to coordinate on labour or other commercial parameters in response to economic shocks (whether geopolitical, supply-chain or otherwise) should not assume that crisis conditions will excuse such conduct.
- Justification is possible but exceptional. The judgment confirms that, even where an arrangement constitutes a no-poach agreement, the full economic and legal context must be considered. Where the agreement also pursues an objectively pro-competitive or legitimate public interest aim, it may fall outside Article 101(1) TFEU. This is, however, a high bar and will only be met in genuinely exceptional circumstances.
For more information on the competition law aspects of no-poach agreements, labour-market competition issues, or the implications of the CD Tondela judgment for your business, please contact John Gaffney or your usual contact in Beauchamps LLP.
