European Super League Competition Law and the Future of European Soccer
On April 18th, 2021, a group of Europe’s top soccer clubs, including FC Barcelona and Manchester United, announced the creation of a new competition called The Super League (the “ESL”).[1] These teams would leave the UEFA Champions League to take part in this new competition.[2] The Super League was met with outrage across the global soccer world.[3] Governing bodies and even governments threatened sanctions for those parties participating in the Super League.[4] The outrage was so overwhelming that within 48 hours, the ESL announced they were suspending operations. Gabriel Fernandez, European Super League Suspended: Competition to ‘Reconsider’ Future After Multiple Clubs Pull out, (Apr. 20, 2021 8:16 PM), https://www.cbssports.com/soccer/news/european-super-league-suspended-competition-to-reconsider-future-after-multiple-clubs-pull-out/ [https://perma.cc/L94Q-GJ86].[/mfn] Whether it is the ESL or a future breakaway competition, there will be significant legal hurdles for any new competition to overcome.
Competition law will be at the heart of the dispute over any new competition. A major unresolved issue that will need to be addressed is whether Union of European Football Associations (“UEFA”) and Fédération Internationale de Football Association (“FIFA”) have the authority to block the formation of a new league. UEFA is the governing body for soccer played in Europe and FIFA is the international governing body for soccer. Both UEFA and FIFA have regulations that dictate the organization of competitions. The relevant UEFA rule is 49(3) which declares that “[i]nternational matches, competitions or tournaments which are not organized by UEFA but are played on UEFA’s territory shall require the prior approval of FIFA and/or UEFA and/or the relevant Member Associations in accordance with the FIFA Regulations Governing.”.[5] This would require any clubs looking to create a new competition in Europe to seek UEFA’s and FIFA’s permission.[6] As any new competition would be in direct competition to UEFA’s own Champions League, the approval (at least from UEFA, if not FIFA too) is not likely to be granted. In the Super League’s case, UEFA threatened proposed Super League teams and players would banned from other competitions if they moved forward.[7] The Super League responded with suits alleging that UEFA’s sanctions violate European competition law.[8] This statute prohibits agreements or undertakings that prevent or restrict competition.[9] The Super League would be direct competitor to UEFA’s previously established Champions League.[10] Currently UEFA operates the only European club competitions. The formation of the Super League would introduce competition between the tournaments. UEFA preventing the formation of a direct competitor would appear to be anticompetitive. So, a decision by UEFA as the governing body preventing the formation of the Super League is potentially a violation of Art 101.
The most relevant caselaw on the matter is International Skating Union.[11] The International Skating Union (“ISU”) is the international governing body for competitive ice skating. In ISU, two Dutch speed skaters competed in skating events that were not sanctioned by the ISU.[12] The ISU sought to sanction and ban the competitors competing in unsanctioned events.[13] The skaters sued to challenge their bans.[14] The European Union General Court found that the ISU’s sanctions were anticompetitive and a violation of Art 101 of TFEU.[15] The Court recognized that the ISU served both as a regulator and an operator of events.[16] This could lead to potential conflicts of interest that prevent competition. The Court stated that a governing body could enforce pre-authorization requirements but that the procedures had to be “clearly defined, transparent, non-discriminatory, verifiable and capable of guaranteeing effective access to the market for competing event organisers.”[17]
There is currently a case in the European Court of Justice, European Super League Company, S.L. v Union of European Football Associations (UEFA) and Fédération Internationale de Football Association (FIFA) (C-333/21) where the court will determine if UEFA and FIFA’s rejection of the Super League violated Art 101 & Art 102 of the TFEU. If the European Court of Justice finds antitrust violations, UEFA and FIFA will no longer be able to stop the creation of a new breakaway tournament. This could lead to a stratification between a select few elite clubs and the rest of the soccer world. The ruling of this case has the potential to change modern soccer permanently.
Footnotes
