职业体育领域垄断行为的法律规制

发布时间：2018-09-17 14:41

【摘要】：职业体育为了夺取锦标和谋取商业利益为目的的经济活动。职业体育具有社团主导,参与者之间合作与竞争并存,商业化明显等特点。随者经济全球化的日趋深入,职业体育的发展也呈现出国际金融资本大量注资该领域,职业体育俱乐部向公司制转化,运用法律手段规制职业体育等趋势。虽然职业体育逐渐成为一项庞大的经济产业,但是职业体育存在垄断协议行为,滥用市场支配地位行为,经营者集中行为,行政性垄断等,这才逐渐引起反垄断法的关注。美国反垄断法基于经济效益的目的,在该领域反垄断法的适用及豁免上具有很大的弹性,美国职业棒球的反垄断法纠纷,一直打到联邦最高法院。欧盟职业体育受到欧盟竞争法的规制而且欧盟不愿意对该领域适用除外,但是某些行为可以获得豁免,欧洲直到1996年“博斯曼案”竞争法才得以进入体育产业,并成为欧盟对体育产业规制的手段之一。由于我国《反垄断法》颁布较晚,立法和执法上面存在诸多不完善的地方。一直到刘孝五案,才第一次运用《反垄断法》提起诉讼和解释案件。职业体育领域内反垄断法实证研究。球员转会制度已经成为职业体育运动的重要内容之一。为了俱乐部的利益,俱乐部间通过协议限制运动员的流动,形成俱乐部间的横向垄断协议。美国布朗案和欧洲博斯曼案,都是运动员向垄断协议发起的反击。在电视转播权的出售问题上,独家协议和集中出售往往是捆绑在一起的。该方式排除其他的竞争者和损害消费者利益,涉及滥用市场支配地位和垄断协议行为。美国通过国会立法赋予“四大联盟”(1)集中出售电视转播权反垄断规则豁免,欧洲通过英超联赛案,欧洲拆分转播权同时禁止独家协议。为了保证比赛的公平性及真实性和维护消费者的利益,职业俱乐部间的集中是被严格禁止的。英格兰国民投资公司案和“实德系”(2)案就是典型案例。在俱乐部迁移问题上,欧美国家运用合理分析原则进行分析。比如洛杉矶纪念体育场委员会案和英国温布尔登迁移案。我国职业体育协会具有行政权力是问题的根源。我国反垄断法对于相关垄断行为是有所规制的,但是在职业体育领域内却没有得到很好的实践。这也直接导致我国反垄断法和职业体育中垄断行为的第一次碰撞即刘孝五案。这是一个从反不正当竞争诉讼发展到以反垄断诉讼反击的案例,以反垄断法解释该案在目前的职业体育领域内尚属首次。结合我国目前最成功职业俱乐部的实践经验,提出我国职业体育必须坚持市场化先行的基础上,逐渐适用反垄断法。接着提出促进我国职业体育发展的法律规制建议和其他相关制度的构建建议。
[Abstract]:The economic activity of professional sports for the purpose of winning gold medals and seeking commercial benefits. Professional sports has the characteristics of community-leading, cooperation and competition among participants, commercialization and so on. With the deepening of economic globalization, the development of professional sports also presents a large amount of international financial capital injection into this field, professional sports clubs to the corporate system, the use of legal means to regulate professional sports and other trends. Although professional sports has gradually become a huge economic industry, there are monopoly agreements, abuse of market dominant position, concentration of operators, administrative monopoly and so on, which has gradually aroused the attention of anti-monopoly law. American antimonopoly law has great flexibility in the application and exemption of antimonopoly law for the purpose of economic benefit. The dispute of American professional baseball antimonopoly law has been hit to the Federal Supreme Court. EU professional sports are regulated by EU competition law and the EU is unwilling to apply to this field, but some acts can be exempted. Europe did not enter the sports industry until the "Bosman case" competition law in 1996. And become one of the means of EU sports industry regulation. Due to the late promulgation of the Anti-monopoly Law, there are many imperfections in legislation and law enforcement. Until Liu Xiaowu case, the first application of the anti-monopoly law litigation and interpretation of the case. An empirical study of anti-monopoly law in the field of professional sports. Player transfer system has become an important part of professional sports. For the benefit of the club, the agreement between clubs restricts the flow of athletes and forms the horizontal monopoly agreement. The Brown case in the United States and the Bosman case in Europe are both players' counterattacks to monopoly agreements. When it comes to the sale of television rights, exclusive agreements and centralized sales are often bundled together. This approach excludes other competitors and damages consumer interests, involving abuse of market dominance and monopoly agreements. The United States granted the "four leagues" (1) exemption from anti-monopoly rules for the centralized sale of television broadcasting rights through legislation in Congress. In Europe, in the Premier League case, European rights were split and exclusive agreements were banned at the same time. In order to ensure the fairness and authenticity of the competition and protect the interests of consumers, the concentration of professional clubs is strictly prohibited. The case of the National Investment Corporation of England and the case of the Department of Virtue (2) are typical cases. On the issue of club transfer, the European and American countries use the principle of reasonable analysis to analyze. Examples include the Los Angeles Memorial Stadium Commission case and the Wimbledon relocation case. China's professional sports association has administrative power is the root of the problem. The antimonopoly law of our country has some regulations on the related monopoly behavior, but it has not got very good practice in the field of professional sports. This also leads to the first collision of monopoly behavior in China's anti-monopoly law and professional sports, namely Liu Xiaowu case. This is a case from the development of anti-unfair competition litigation to the counterattack of antitrust litigation. It is the first time that this case has been explained by anti-monopoly law in the field of professional sports at present. Combined with the practical experience of the most successful professional clubs in our country at present, the author points out that China's professional sports must adhere to the basis of marketization and gradually apply the anti-monopoly law. Then it puts forward the suggestions of legal regulation and other related systems to promote the development of professional sports in China.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.294

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