Introduction
The formation of a European Super League ("ESL"), in which English, Italian and Spanish football clubs would compete in a closed breakaway league, was announced in April 2021 and met with widespread backlash from fans, football governing bodies and numerous politicians to the extent that the plans collapsed within days.
However, revamped plans have now been announced following the European Court of Justice issuing a decision that FIFA and UEFA rules requiring their prior approval of inter-club football competitions are unlawful. This judgment has implications not just for the ESL, but also other potential international club competitions, and for sporting governing bodies more broadly.
Background: FIFA and UEFA rules
FIFA Regulations provide that all tier 1 international matches (featuring 'A' teams of the relevant national football associations) must be authorised by FIFA, the relevant continental confederation (in the case of the ESL, UEFA) and the national football associations the participating teams belong to and on whose territory the matches are to be played.
UEFA Statutes similarly state that international matches which are not organised by UEFA but are played on UEFA’s territory (i.e. Europe) shall require the prior approval of FIFA, UEFA, and the relevant associations in accordance with the FIFA Regulations.
The judgment
FIFA and UEFA refused to recognise the ESL, and threatened that any professional football club or player taking part in it would be banned from competitions organised by FIFA and UEFA. The company behind the ESL (European Superleague Company SL) complained that the rules adopted by FIFA and UEFA restrict competition in the market for the organisation and marketing of inter-club football competitions in the EU, and that the threat of excluding clubs and players participating in the ESL infringed EU competition law.
In its judgment, the ECJ found that the FIFA and UEFA rules requiring their prior approval for setting up new inter-club football competitions by a third party, and controlling the participation of professional football clubs and players via the threat of sanctions constitutes abuse of a dominant position. The rules lack a framework of substantive criteria and detailed procedural rules which are suitable for ensuring that they are transparent, objective, non-discriminatory and proportionate.
Furthermore, the ECJ ruled that the rules have the object of preventing competition and therefore contravene EU competition law. The FIFA and UEFA rules confer on the respective bodies the power to authorise, control and set the conditions of access to the market for any potentially competing undertaking. Competition is restricted both by the rules being capable of excluding competing undertakings and by depriving clubs and players of the opportunity to participate in competitions. Ultimately, spectators and television viewers are deprived of the opportunity to watch competitions which may offer an innovative new format. The sanctions for participation further reinforce these anti-competitive barriers to entry.
This ECJ decision is at odds with the Opinion of the Advocate General, which was delivered in December 2022, and stated that FIFA and UEFA's rules were compatible with EU law because they pursue legitimate objectives in a proportionate manner. This is somewhat unusual, as the ECJ follows the Advocate General the majority of the time.
Outlook
The decision does not mean that a breakaway league such as the ESL would necessarily be approved, as the ECJ was not ruling on that specific project in its judgment, but rather more generally regarding the FIFA and UEFA rules. However, the judgment will still be seen as a blow to FIFA and UEFA, and a boost to backers of the ESL, as evidenced by the revamped plans for the league announced following the ruling. Whilst the ESL still faces strong opposition, the decision is a signal that the balance of power may be shifting away from the governing bodies.
UEFA President Aleksander Čeferin stated in a press conference following the judgment that UEFA is confident that its rules are fully in line with the ECJ judgment, having being working on updating "imperfect" rules since 2021. However, he also stated that UEFA will review further and consider if any further changes need to be implemented. FIFA President Gianni Infantino similarly said that the judgment does not change anything, but FIFA will be analysing the decision.
The full impact of this decision will likely be felt more widely than just FIFA and UEFA; other sporting governing bodies will likely wish to take steps to review their own rules and procedures in order to ensure compliance with EU competition law. A particular emphasis should be had on ensuring that they contain the substantive criteria and detailed procedural rules the ECJ found FIFA and UEFA's rules to be lacking.
