Tondela Case: A Reverse Presumption for No‑Poach

In its decision in CD Tondela and Others (Case C‑133/24), delivered on 30 April 2026, the Fifth Chamber of the Court of Justice has handed down its first substantive ruling on a no‑poach agreement under Article 101(1) TFEU. The case has been waited on with some impatience since AG Emiliou’s Opinion of 15 May 2025, and not only by sports lawyers — labour‑market enforcement has been the most active competition frontier in Europe for the past two years, from the Commission’s June 2025 Delivery Hero / Glovo decision (€329 million in fines) to the Romanian Competition Authority’s sanctions against engineering and IT consultancies for naked non‑solicitation arrangements.

A reading of the press release alone might leave the impression that the Court declined to give a categorical answer and remitted everything to the national court. That impression is misleading. The operative part of the judgment establishes a clear default rule, and the language is worth unpacking.

The default rule

The Court, in answer to the Portuguese referring court’s third question, holds that an agreement of the kind concluded in April 2020 by the Liga Portuguesa de Futebol Profissional and the participating first‑ and second‑division clubs must be classified as having the object of restricting competition, unless the concrete examination of its content, of the objective aims it pursues, and of the specific economic and legal context in which it is inserted reveals specific reasons why that classification cannot be retained.

That is, on its face, a presumption of by‑object classification for no‑poach agreements between competing employers, with the burden of identifying the rebutting reasons lying on the analysis the national authority or court must undertake. In doctrinal terms, it is the closest the Court has come to confirming the European Commission’s position in its 2024 Policy Brief on Antitrust in Labour Markets. The Court has not categorically said that all no‑poach agreements are by object infringements. It has said that this kind of agreement is presumed to be one, and that the rebuttal requires articulated, specific reasons.

The reasoning that supports this conclusion is densely woven into the existing object‑restriction case law and aligns Tondela with the Court’s previous labour‑market move in FIFA / Diarra (C‑650/22), which the Fifth Chamber cites repeatedly as the doctrinal anchor.

Content: source‑sharing in the labour market

On the first limb of the Cartes Bancaires / Banco BPN test, the Court treats a no‑poach agreement as a horizontal arrangement on the upstream market for the recruitment of trained or currently‑training (football) players. The agreement is described as a “manifest restriction” of a competitive parameter that plays an essential role in high‑level professional sport — namely the ability of competing clubs to recruit players already engaged by other clubs. Doctrinally, the Court explicitly assimilates such no‑poach arrangements to horizontal allocations of the “sources of supply” referred to in Article 101(1)(c) TFEU, treating workers as the resource being divided up between the participating undertakings (paragraph 54).

The Court also addresses a foreseeable line of defensive argument: that, unlike a wage‑fixing arrangement, a no‑poach agreement does not directly fix the “purchase price” of labour. The Court accepts the formal distinction but neutralises it. Even where the content does not concern price, the agreement reduces players’ ability to offer their services to other employers and limits their bargaining power, with the consequence that no‑poach agreements remain capable of exerting an indirect, potential impact on the prices at which players are recruited (paragraph 55). That is what brings them into the same doctrinal family as cartels falling under Article 101(1)(c) TFEU.

The structure mirrors the move the Court had already made in FIFA / Diarra on the FIFA RSTP rules. Tondela makes explicit, for naked employer‑side coordination, what FIFA / Diarra had established for federation‑level rules with equivalent recruitment‑restricting effects.

Context: the pandemic does not, on its own, displace the prohibition

The contextual analysis is where the Court is most careful. It accepts that the pandemic, the suspension of the 2019/2020 season in Portugal, the uncertainty over its resumption, the timing of contract expiries on 30 June 2020, and the financial precariousness of the clubs concerned are all genuinely relevant context — and indeed the AG’s points 57 and 58, expressly cited in paragraph 73, supply some of the operative descriptive matter.

What the Court refuses to accept is that this context, on its own, derogates from the imperative of Article 101(1) TFEU (paragraph 74). The pandemic was not and it cannot be a free pass. Nor is Article 165 TFEU on the specificity of sport: the Court restates its long‑established holding from Superleague that this provision does not constitute a special rule shielding sport from any of the directly applicable provisions of EU primary law (paragraph 75). The pandemic context feeds into the contextual analysis under the by‑object test; it does not displace that test or convert it into a Wouters‑style proportionality assessment. The distinction is doctrinally significant for any future attempt to invoke crisis‑driven coordination in non‑sport sectors.

Objectives: the ambivalence that may rebut the qualification

The most interesting move in the reasoning is on the third limb — the objectives the agreement pursues with respect to competition. The Court accepts the referring court’s premise that the agreement’s objectives are ambivalent: it objectively restricted competition for player recruitment, but it also objectively pursued the stability of player rosters during the suspension period, with a view to enabling the resumption of competition “in the stadium” under conditions preserving the integrity of the championships.

This ambivalence is what the Court signals as the most plausible candidate for the “specific reasons” that could rebut the by‑object classification. The reasoning is consistent with the contextual variant of the by‑object analysis the Court had developed in Banco BPN and refined in the sports trilogy: a competitively ambivalent agreement, situated in a sufficiently specific economic and legal context, may fall short of the “sufficient degree of harm” threshold required for the qualification by object to attach. But the Court is careful to insist, in paragraph 78, that whichever way the referring court rules on this point, the assessment must rest on a competition analysis identifying the precise reasons supporting that conclusion, in the light of all relevant facts and law.

In other words, rebuttal of the presumption is permitted, but it must be reasoned to a high standard.

Justification: Meca‑Medina preserved, and quietly extended

Having dealt with the by‑object question, the Court turns to the Wouters / Meca‑Medina line of justification. The analysis is in two parts.

First, on doctrinal scope. The Commission and the Autoridade da Concorrência appear to have argued — as the Court records in paragraph 95 — that the Meca‑Medina framework should be confined to decisions of associations of undertakings stricto sensu, and not extended to coordinated conduct of an association of undertakings together with its members. The Court rejects that limitation. The justification framework is applicable to any conduct by which an association of undertakings and its member undertakings coordinate, irrespective of the form that coordination takes, including a hybrid arrangement of the kind concluded by the LPFP and its participating clubs. This is a quiet but real extension of Meca‑Medina’s domain.

Second, on substance. Ensuring the regularity of sporting competitions is a legitimate public‑interest objective of particular importance in football, and is in principle capable of justifying rules of the kind adopted by the LPFP and the clubs (paragraph 96). The further requirements — suitability, necessity, and strict proportionality, including a non‑elimination‑of‑competition test — are remitted to the national court, which has itself expressed doubts about the necessity and proportionality of the agreement.

What the Court does not do, importantly, is to invoke Article 101(3) TFEU. Justification, where it operates at all in this case, runs through Wouters / Meca‑Medina rather than through the traditional efficiency‑exemption route. The architectural distinction — by‑object analysis with contextual rebuttal at paragraph 1 of Article 101 TFEU; Wouters‑style justification, separately, also at paragraph 1; and Article 101(3) untouched — is preserved.

The doctrinal payoff

Three things are now settled or close to be settled.

First, no‑poach agreements between competing employers attract a presumption of by‑object classification. The presumption is rebuttable, but the rebuttal requires specific reasons, and it cannot be carried by reference to crisis circumstances alone. The Commission’s 2024 Policy Brief is, on this point, vindicated in substance, even if the Court has chosen a more nuanced doctrinal framing than a categorical statement.

Second, an objectively pro‑competitive aim that co‑exists with the anti‑competitive one within the agreement’s design is the most plausible route to rebutting the presumption. This will be of limited reach in standard naked employer cartels — the typical M&A side‑letter or the typical sectoral non‑solicit rarely carries an objective pro‑competitive aim of comparable doctrinal weight to “ensuring resumption of competition in the stadium.” It will, however, give defendants in close cases a structured argument the Court has now legitimised.

Third, the Wouters / Meca‑Medina framework is alive, has been extended to cover hybrid association‑plus‑members coordination, and remains the principal justification route alongside Article 101(3) TFEU. For sport in particular, but not only for sport, this matters.

The implications for the Delivery Hero / Glovo appeal currently before the General Court are limited but real. Tondela vindicates the Commission’s by‑object presumption at the doctrinal level. It also, however, requires a reasoned engagement with content, context, and objectives — including any pro‑competitive aims pleaded — before that presumption is converted into a finding. The text of the Commission’s decision will, in this respect, be tested against a more fully articulated standard than was available when it was adopted.

For practitioners outside the sporting context, the procedural payoff is clear. Where a national authority has classified a recruitment‑related agreement as restrictive of competition by object, the defence has, after Tondela, a sharper foothold to demand a contextual analysis of the kind the Court has now spelt out, and to plead any objectively legitimate aim that runs alongside the restrictive one. The path is narrower than the AG’s Opinion had appeared to open. It has not been closed.