MEXICO Law and Practice Contributed by: Alejandro Mendiola Diaz, Pedro Isaac Alcalá Berhouague and Benjamín Uriel Salinas Morales, Nader, Hayaux & Goebel
California, WhatsApp groups and informal meet - ings were used to co-ordinate discounts, with some chats even operating under code names to conceal their purpose. However, the agency faces growing challenges in preserving digital communications. Messaging platforms often allow auto-deletion or ephemeral messages, making evidence harder to capture unless secured early. COFECE typically access - es these records through leniency applications, dawn raids, or third-party co-operation. There is currently no formal guidance from COFECE requiring companies to preserve mes - saging data, nor are there sanctions solely for deleting such evidence during an investigation. This legal gap creates uncertainty, particularly as chat-based communication becomes more prevalent in business practices. While COFECE has relied on messaging evi - dence in the past, the absence of preservation rules and the technical difficulties in retrieving deleted content remain significant obstacles to enforcement. 7.6 “No Poach” and Labour Market Allocation Conduct In Mexico, “no poach” agreements and labour market allocations practices may be treated as serious cartel offences, especially when they are not linked to a legitimate business transaction and have the effect of restricting worker mobility or wages. Enforcement Approach COFECE has investigated and sanctioned this type of conduct. A landmark case involved 17 football clubs and the Mexican Football Federa - tion, which were fined for co-ordinating to limit
player mobility in the professional Liga MX. Two main practices were identified. • “Gentlemen’s Agreement” in which clubs agreed not to hire players from each other without prior approval, even when contracts had ended. • Wage caps for female players, which restrict - ed their ability to negotiate fair compensation and reinforced pay disparities. COFECE found these practices to be illegal because they reduced bargaining power, limited job opportunities, and distorted competition in the labour market. Acceptable Exceptions in Mergers COFECE does allow certain “no hire” or “no solicitation” clauses when they are part of a legitimate merger or acquisition. These clauses may be accepted if they: • protect know-how or human capital; • are limited in scope (typically up to three years); • apply only to specific staff or regions; and • are reviewed on a case-by-case basis, similar to non-compete clauses. Market Prevalence and Outlook Outside of M&A contexts, “no poach” and labour market allocation agreements are not common in Mexico. However, if detected, they are likely to be investigated and penalised as unlawful conduct. Mexico’s competition authority has made it clear that protecting labour market competition is a growing priority. This aligns with a broader inter - national trend to treat unjustified restrictions on worker mobility as a serious antitrust issue.
219 CHAMBERS.COM
Powered by FlippingBook