Antitrust and Sports in Canada

A. Introduction to Canadian Competition Law
The Competition Act
(formerly the Combines Investigation Act
) is
Canadas principal competition legislation. Administered and enforced
by the Commissioner of Competition,
the Competition Act in many
respects is similar to United States antitrust laws.
The principal
difference between sports competition law in Canada and the United
States is that the Competition Act, unlike the Sherman Act, contains
provisions specifically addressing professional and amateur sports.
Despite these specific provisions, however, the body of sports
competition law in Canada is substantially less developed than in the
United States.
B. The Competition Act and Sports
1. Background
Prior to 1976 the sports industry was effectively exempt from
Canadian competition law. The relevant statute at the time covered only
. R.S.C. 1985, c. C-34 (Can.), as amended. For a more detailed discussion
of the Competition Act and Canadian co mpetition law and policy, see
(2d ed. 2010) and COMPETITION LAW OF CANADA (Calvin S. Gold man &
John D. Bodrug, eds., 2013).
. R.S. c. C-23 1976 (Can.).
. The Commissioner heads the Co mpetition Bureau (the Bureau), a
branch of the federal Dep artment of Industry. The Commissioner is an
appointee of the Federal Cabinet, referred to in Canada as the Governor
in Council.” See Competition Act, R.S.C. 1985, c. C-34, § 7 (Can.).
Further details regarding the structure and operation of the Bureau are
available on its website:
. Liz Larson, Note, More than J ust Spelling: How Differences in
Interna tional Labor Laws Crea te Barrier s to Expansion of the American
National Sports Leagues into Eur ope Intercollegiate Sports, 11 VA.
SPORTS & ENT. L.J. 288, 306 (2011).
. 2 WISE & MEYER, supra Chapter IV, note 141, at 792.
132 Sports and Antitrust Law
conduct involving the manufacture and sale of articles.
Because sports
were classified as a service rather than an article, the business of
sports fell outside the scope of conduct covered by the act.
In 1976
Canadas competition legislation was amended to expand its application
to services as well as articles,
closing the gap in Canadian
competition law and bringing the sports industry within its purview.
While the 1976 amendments were under consideration, concerns
were raised about exposing the sports industry to potential prosecution
for illegal concerted action. In testimony before a committee of the
Canadian Senate considering the proposals Clarence Campbell, then
President of the National Hockey League (NHL), argued that it is hard
to conceive of a single regulation or rule in professional sports which is
not basically in direct contravention of the literal text of the [conspiracy
In response to these concerns special provision was made
. Combines Investigation Act, R.S.C. 1970, c. C-23.
. J.C.H. Jones & D.K. Davies, Not Even Semitough: Professional Sport
and Canadian Antitrust, 23 ANTITRUST BULL. 713, 713 n.2 (1978). T he
competition legislation at the time was called the Combines Investigation
Act [Combines Act].
. R.S. 1976, c.76, §§ 2, 15 (Can.).
. Dept of Consumer & Corpor ate Affairs (Can.), Pr oposals for a New
Competition Policy for Cana da: First Stage 49-52 (1973) [hereinafter
Proposa ls]. Pursuant to section 2 of the Competition Act, service is
defined as a service of any d escription whether industrial, trade,
professional or otherwise; article is defined as real and personal
property of every description; and product is defined to include a n
article and a service. R.S.C. 1985, c. C-34, § 2 (Can.).
. Stephen F. Ross, The NHL Labour Dispute and the Common Law, the
Competition Act, an d Public P olicy, 37 U.B.C. L. REV 343, 373 n.118
(2004) (emphasis omitted) (quoting Proceedings of Standing Senate
Committee on Banking, Trade and Commerce, Issue No. 5, Nov. 13,
1974, at 21-22 (Can.) (testimony of Clarence Campbell, President,
NHL)). For example, in testimony before the Senate Committee
considering the amendments, the Minister of Consumer and Corporate
Affairs, who was responsible for Canadian co mpetition policy at the time,
stated: “‘Everyone would object to it if, because [the Combines Act]
includes services in Canada i t would no longer be possible for Montreal
or Toronto teams to assemble a group of players into a tea m playing in a
league and make arrangements or regulations for the playing of hockey,
football or other sports.’” J. Kevin Wright & Jonathan Gilhen, A Note on
U.S. Antitrust Law and Professional Sport: American Needle and the
Implications for Ca nadian Competition La w, CAN. COMPETITION REC.,
Winter 2010, at 66, 80 n.47 (quoting Pro ceedings of Standing Senate

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