The Tribunal de Defensa de la Libre Competencia (TDLC) partially accepted the claim for damages brought by Club Deportes Melipilla S.A.D.P. against the Asociación Nacional de Fútbol Profesional (ANFP).
Thus, it ordered the ANFP to pay the plaintiff the amount of 23,000 UF for consequential damages, with costs.
Previously, the ANFP had been sanctioned for restricting free competition by raising the value of the incorporation fee to be paid by teams promoted to the second category of professional soccer (Primera B).
The increase in the incorporation fee was seen as an artificial barrier that hindered entry into the market (Primera B) and hindered the ability of teams that could afford to pay it to compete.
In order to determine the damage to be compensated, the TDLC took into consideration the consequential damage suffered by Deportes Melipilla, which is equivalent to the 24,000 UF paid for the incorporation fee upon promotion to Primera B in 2018, minus 1,000 UF, the value of the incorporation fee in force prior to the increase and which was considered as not harmful to free competition.
Regarding the defenses raised by the ANFP, the court rejected (1) the plea of lack of jurisdiction, considering that the arbitration clause of its bylaws did not cover the action for compensation for damages arising from Judgment No. 173/2020; and (2) the plea of lack of standing to sue, noting that it is not linked to the fact of having participated in the infringement process, but to the allegation of having suffered damages arising from facts declared unlawful by a court judgment.
In this judgment, the TDLC addresses interesting aspects regarding the arbitrability of civil damages derived from an anticompetitive tort, identifying three requirements to grant jurisdiction to an arbitral tribunal to hear the damage derived from such kind of tort:
A-. that the wrongful act is already determined by a final judgment at the time the arbitration clause is entered into.
B-. that the clause provides for the cognizance of an action for damages arising from a clearly identified final and enforceable judgment.
C-. that the jurisdiction of the arbitral tribunal is limited to the determination of the existence of the damage, its quantification, and the tort-damage causal relationship.
However, the TDLC considered that the last two requirements were not verified in the case at hand, rejecting the exception of lack of jurisdiction raised by the ANFP.
Deportes Melipilla did not claim damages for moral damage and/or loss of profits, in circumstances in which the conviction did establish that the payment of the incorporation fee affected the ability to compete in the market of those who paid it. The calculation and proof of such damages would have been an interesting, albeit complex, issue.
Image credit: elfutbolero
