Most press reports claimed that the CJEU Superleague judgement represented an utter defeat for FIFA and UEFA. This article reconsiders such conclusions in the light of a more attentive exam of the grounds of the Judgment.
On 21st December 2023, the Court of Justice of the European Union (“CJEU”) issued its very long-awaited judgement in case C-333/21. The Judgement was released following a request for a referral coming from the Commercial Court of Madrid, pursuant to article 267 of the TFUE. This provision sets out a system of cooperation between the Court of Justice and the national courts, according to which – to solve a pending dispute at national level – the CJEU provides the national Court an interpretation of the Treaty’s provisions the national Court needs.
The questions concerned the compatibility of certain UEFA and FIFA statutory rules according to which the two sporting federations had reserved for themselves the right to approve any competing inter-club competitions which would take place in Europe. Such statutory rules provided for the imposition of severe sanctions vis-à-vis clubs and football players who would participate in any non-authorized competitions, i.e. a ban from all UEFA and FIFA tournaments as well as from the national tournaments organized by the national federations and leagues (such as Serie A, Bundesliga, La Liga, Premier League) who are in turn members of UEFA.
As many would recall, on April 2021, on the basis of these statutory provisions, UEFA publicly refused to approve the Superleague: a project for a new international football competition to which a number of top ranked European clubs had adhered. As a consequence, many clubs, discouraged by the threatened sanctions as well as by the opposition to the Superleague project by national governments, withdrew from the Superleague, and the project was set aside. Nevertheless, ESLC, the company running the project, brought the case to the Commercial Court of Madrid claiming, on the basis of EU competition Law grounds, the illegality of said provisions and, more broadly, the illegal behaviour adopted by UEFA.
The Spanish Court issued a prima facie order in favor of the Superleague and referred to the CJEU a number of questions which concerned the compatibility, with Articles 101 and 102 TFUE, of the FIFA and UEFA statutory rules on prior approval of competing tournaments.
In its judgment, the Great Chamber of the CJEU, in partial disagreement with the conclusions of the Advocate General Athanasios Rantos, delivered 15th December 2022, declared that UEFA and FIFA statutory provisions on prior approval, as they stood, contravened the EU antitrust rules on abuse of dominant position (Article 102 TFEU) and constituted a “decision of an association of undertakings” which was anticompetitive by object, thus contrary to Article 101 TFUE.
It is here submitted that the judgement is very articulated and complex and – according to the author – must be considered in its entirety in order to draw some conclusions on its possible implications.
The CJEU remarked that FIFA and UEFA, are responsible for football at world and European levels and, at the same time, pursue various economic activities related to the organisation of competitions. The statutory rules in issue subject to the approval of FIFA and UEFA the setting up, on the EU territory, of new interclub competitions. However, the CJEU noted that such rules were adopted “in the absence of a framework of rules providing for substantive criteria and detailed procedural rules which were transparent, objective precise, non- discriminatory and proportionate”. Lacking such a framework, it is impossible to verify, on a case-by-case basis, “whether their implementation is justified and proportionate in view of the specific characteristics of the international interclub project concerned”. As a matter of fact, UEFA and FIFA enjoyed a total discretion in controlling and denying access to the market to any third party, making thus impossible for any potential competitor to set up viably an ecosystem outside their organisation. The CJEU, therefore, considered that UEFA and FIFA had abused their dominant position on the market for the organisation of interclub competitions in Europe, and had put in place a restriction on competition by object, infringing both Articles 102 and 101 TFUE.
At the same time, the Court made it clear that the mere presence of a set of provisions regulating prior approval of competing competitions is not, as such, contrary to the antitrust provisions and that neither their adoption nor their implementation can be characterized, in terms of principle, as an abuse of dominant position. The same is true for sanctions which guarantee the effectiveness of those rules.
In its decision, the CJEU made express reference to the specific characteristics of football, to its social and cultural importance in the European Union, and to the great media interest originated from it. Football is in fact organized at European and national level through competitions to which many clubs and football players participate and which are based on matches between teams with gradual elimination of those teams, according to the criterion of merit. The sporting merits on which competitions are based can be in turn guaranteed only if “all the participating teams face each other in homogeneous regulatory and technical conditions thereby ensuring a certain level of equal opportunity”.
The CJEU expressly recognizes in the Superleague judgment that it is legitimate for UEFA to subject the organisation and the conduct of international professional football competitions to common rules intended to guarantee the homogeneity and coordination of those competitions within an overall match calendar and to ensure compliance with those common rules through rules set forth by FIFA and UEFA on prior approval of those competitions and the participation of clubs and players therein (see para 144 of the Judgement).
In this respect, it must be recalled, as indicated by the Advocate General in its conclusions, that the Superleague relied on a model of governance that did not contemplate sporting merits but was based on the predetermined participation of a number of clubs who would pay an entrance fee, in accordance with a “North American” system of closed competitions or leagues. The Advocate General had also noted that the founders of the Superleague intended to set up a competitor tournament in the most lucrative segment of the market, that of the well- established UEFA Champions League, and continue to be part of the UEFA ecosystem by participating to some UEFA competitions, including the national championships. In other words, they wanted “on the one hand to benefit from the rights and advantages linked to membership of UEFA, without however being bound by UEFA’s rules and obligations”. Such a system of free riding or dual membership could affect and weaken the UEFA economic model based on solidarity, and ultimately the enforcement of the values of the European model of sport in the organisation of football in Europe.
Based on this synthetic analysis, it can be concluded that UEFA and FIFA may still legitimately perform their role as regulator of European football and take those action – within the limits of EU Law – aimed at pursuing the objectives and values enshrined in the so-called European sports model set out in Article 165 TFUE. In particular, they shall “promote in a suitable and effective manner the holding of sporting competitions based on equal opportunities and on merit”. The two organisations could, also, take appropriate regulatory measures – including rules on the pre-approval of competitions – in order to protect such values if there is a risk that the European model is threatened or weakened.
The Judgement, however, clarifies that the two organisations governing football at worldwide and European level shall not enjoy unlimited discretionary power in the exercise of their regulatory power and, in particular may not deny market access to competitors in the absence of objective grounds. UEFA and FIFA will be bound to create a framework of transparent and pre-defined rules, consistently with the principles of transparency, non-discrimination and proportionality, which must govern any economic activity in the EU including professional sport.
Indeed, UEFA has recently updated their rules on the pre-authorisation of new tournaments, although such rules have not been implemented in a “real case” so far.
DISCLAIMER: This article merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi which assumes no liability whatsoever for the content and correctness of the newsletter. The author or your contact in the firm will be happy to answer any questions you may have.