Tuesday 16th of January 2024
This discussion about the impact of the recent CJEU decision on the Super League future and the European Sports Governance has been enriched by contributions from Jean-François Brocard, Associate Professor at the University of Limoges and researcher for the Centre for Sports Law and Economics.
On December 21st, The Cour of Justice of the European Union decided that the FIFA and UEFA rules on prior approval of interclub football competitions are contrary to EU law, especially in the prohibition of clubs and players from playing in those competitions. The main argument of the CJEU is that there is no framework for these rules ensuring that they are transparent, objective, non-discriminatory and proportionate. Furthermore, the rules giving FIFA and UEFA exclusive control over the commercial exploitation of the rights are unlawful because they are likely to restrict competition, particularly given their importance for the media, consumers and television viewers in the European Union.
Bernd Reichart, the CEO of A22 Sports Management, and promoter of the Super League project, claims that “UEFA monopoly is over” thanks to the 21st December decision. At first sight, this decision is such as to strengthen the legitimacy of the Super League project and weaken or even break the monopoly of sports federations, despite the constant of the European sport traditional model. This already illustrates the existing tension at the heart of this decision ; the balance between competition law and the traditional European sporting model is shifted, and the question is how far is it shifted.
What is Super League ?
As a reminder, on April 18, 2021, 12 European soccer clubs announced the creation of a semi-closed private league, in competition with the UEFA Champions League: The European Super League. The creation of the league was overseen by the European Super League Company (ESLC), a company incorporated under Spanish law to organize the competition.
Between April 20 and 21, 2021, under pressure from UEFA and FIFA, 9 of these clubs withdrew from the project. Indeed, in accordance with its statutes and in order to maintain its monopoly on the organization of sporting competitions, UEFA used its role as organizer to threaten to sanction and exclude players who joined the Superleague from national competitions.
Taking the view that FIFA’s and UEFA’s behavior was incompatible with Articles 101 and 102 of the TFEU (prohibiting anti-competitive agreements and abuses of dominant positions respectively), the European Super League Company filed an application for interim measures with the Madrid Commercial Court.
On April 20, 2021, the Madrid Commercial Court ordered precautionary measures to prevent FIFA and UEFA from hindering the preparation of the European Super League, and referred a number of questions to the Court of Justice of the European Union for a preliminary ruling.
The questions referred to the CJEU concerned in particular the compatibility of the prior authorization system and the threat of sanctions by FIFA and UEFA against European Super League clubs, particularly in view of their deterrent effect, with Articles 101 and 102 of the TFEU.
A moderate legal and political impact
In its decision of December 21, 2023, the Court of Justice of the European Union ruled that the prior authorization system introduced by FIFA and UEFA, which prohibits clubs and players from taking part in interclub competitions competing with those they organize, is contrary to EU law and the freedom to provide services. The Court also found that FIFA and UEFA were abusing their dominant position on the market.
However, the Court made it clear that its decision does not mean that the Superleague project as such should be approved. Indeed, in this ruling, the Court does not take a position on this specific project. This decision represents a major upheaval and paves the way for the organization of new European competitions. This runs counter to the conclusions of the Advocate General, who considered that the restrictive effects on competition resulting from the prior authorization system appeared proportionate to the legitimate objectives pursued by UEFA and FIFA, linked to the specificity of the European sporting model, and that the threatened sanctions against European Super League clubs were compatible with Articles 101 and 102 of the TFEU, with only the sanctions against players being disproportionate.
As a result, this decision does not take into account the specific nature of sport, which is a guiding principle of sports governance in Europe.
On the political level, the traditional European sports model is questioned at the level of its governance, because the monopoly of the federations is no longer guaranteed, even though it is a key feature of the European sports model. It is also another significant victory for the Super League, as the CJEU did not prohibit its right to exist, despite the legal and factual monopoly of the sports federations. Furthermore, this extends the application of free competition law to the sports sector, and the cursor has moved against UEFA’s full powers and against the specificity of sport model.
We can however go into more detail to explore how these guiding principles have been reconciled with the need for competition. The decision is indeed more complex than that, and the CJEU has made it clear that the Super League project, led by several of the richest clubs, « does not necessarily have to be authorised », as Elodie explained. The CJEU only ruled on questions referred for a preliminary ruling by a Madrid court and did not rule on the validity of the project.
Firstly, it should be noted that the main reason why the FIFA and UEFA monopoly appears to be in danger is that it does not comply with European competition standards, which lack transparency and proportionality. In a way, addressing these problems would make it possible to maintain the monopoly. Above all, UEFA insists that its new regulations, adopted in June 2022, will correct the « issues » raised by the CJEU because they recognise the principle of competing events. Then, the CJEU ruled on the 2021 decisions without taking these new regulations into account. The decision is therefore not so much a revolution as an invitation to the UEFA to relax its monopoly.
Therefore, the press release of the CJEU is an informal document, even if it summarizes the decision, it is not prescriptive and is primarily aimed at the media. However, it quickly became apparent that the Super League promoters were using this press release to claim a victory over UEFA. UEFA therefore asked the CJEU to amend it. All in all, despite the press release, there is no real reason to be concerned about European sports governance.
To summarize the impact of this decision on the European sports governance, this does not upset the traditional framework, the traditional model in a sense that it doesn’t actually authorize Super League. It’s more complicated than that and in a way, it doesn’t change a lot of things for the UEFA power, even if it must take better account of competition law. If we if we think even further, we can think that the Super League, if UEFA authorizes it, could only be placed under the authority of UEFA because of its monopoly. This situation of course requires many other prior decisions. Finally, let us point out that an announcement effect may also encourage new competitions to be created to compete with UEFA.
For now, in 2024, two visions are opposite in the organization of sport competitions. On the one hand, the UEFA defenders plead for a pyramidal competition, which which confirms the monopoly of sports federations but, at the sporting level, allows smaller clubs to access and participate in major competitions, and gives satisfaction to most of the fans of these clubs. On the other hand, the defenders of the Super League want a closed League, which favors entertainment for a limited number of clubs, and accessible to fans because the matches would be free.