European Super League - Competition for top-tier football continues
by Simon Neill, partner, Osborne Clarke
European Court of Justice asked to rule on antitrust question as three football clubs press on with plans for Super League.
In April this year, 12 of the biggest European football clubs announced the creation of a breakaway European Super League (ESL), in a bid to revolutionise modern football.
The announcement was met with near-universal opposition from fans and rival football teams, which resulted in nine clubs dropping out of the controversial tournament within less than 72 hours of its creation. However, three clubs – Real Madrid, Juventus Turin and FC Barcelona – are still standing by their project and are not looking to forfeit this particular game without taking it to extra-time.
Madrid as the chosen venue
In response to the sudden announcement of the bulk of the founding clubs' intention to withdraw, the Super League's officials stated that they "are convinced our proposal is fully aligned with European law and regulations". Indeed, on 20th April 2021, the ESL obtained a favourable ruling from a Madrid Commercial Court following its request for an interim measure restricting any action that FIFA (international football's governing body) and UEFA (the European football governing body) might take against the new tournament until plans were finalised.
In issuing its preliminary ruling blocking FIFA and UEFA from taking any immediate action or making statements against the ESL, judge Manuel Ruiz de Lara observed that such action would itself either infringe Article 101 of the Treaty on the Functioning of the European Union (TFEU) as constituting an unlawful agreement between UEFA and FIFA intended to harm a competitor and/or Article 102 TFEU as an abuse of either of the bodies’ dominant positions in the internal market for the organisation of football competitions.
Following that judgment, the Madrid court asked the Court of Justice of the EU (CJEU) on 11th May for a preliminary ruling on whether FIFA and UEFA had breached antitrust rules by prohibiting the creation of the ESL and whether those associations had the power to require prior authorisation for the organisation of alternative competitions. This request for guidance has been officially filed with the CJEU.
While potentially of great significance to football fans, there is no guarantee that the CJEU will look into this reference in a timely manner. Even if it does, the CJEU may not feel comfortable going beyond simply restating the existing case law.
Disciplinary action against the rebellious trio?
Football governing body UEFA had announced disciplinary procedures against Juventus, Barcelona and Real Madrid. In response to the commencement of disciplinary procedures, the three clubs issued a statement on 26th May condemning UEFA's decision. They expressed their "absolute rejection of the insistent coercion that UEFA has been maintaining" against them, pointing out that the disciplinary action "constitutes a flagrant breach of the decision of the courts of justice".
The clubs went even further, accusing UEFA that "instead of exploring ways of modernising football through open dialogue" the governing body puts "intolerable" pressure on the clubs to "withdraw the ongoing court proceedings that question their monopoly over European football".
Subsequently, on 9th June, the independent UEFA Appeals Body ordered UEFA, which is based in Basel, to temporarily suspend the disciplinary proceedings. This came after formal notification of the Madrid court order obtained by the ESL in April was made to UEFA by the Swiss competent authorities. The decision of the UEFA Appeals Body was taken without prejudice to the question about the enforceability of the court order in Switzerland.
In response, UEFA has stated that it will "take all necessary steps in strict accordance with national and EU law in order for the UEFA Appeals Body to be in a position to resume the disciplinary proceedings as soon as possible".
It now appears that at least three of the Super League's founding members have moved beyond their late-night announcements and decided to proceed with the implementation of the controversial new competition, in the face of a number of challenges. When it finally arrives, the CJEU's preliminary ruling could have a defining impact on FIFA's and UEFA's controlling influence over football and could mark the beginning of the end of their long monopoly over the European game.
It is also worth noting that the European Commission has finally commented on the Super League's concerns, although in a predictably conservative manner. In her response to French MEPs questions the executive vice-president, Margrethe Vestager, said that "the Commission is aware of the announcement of the creation of a European Super League by 12 European football clubs, as well as the subsequent withdrawal of nine clubs from this project.
"In view of the developments since the announcement and in absence of detailed information on the initially envisaged project, the Commission is not in a position to comment on the application of EU competition rules to this particular situation. The Commission is nonetheless monitoring the situation bearing in mind the specificity of sports.”
