SPORTS BLOG: Is the European Super League still a possibility?
9th January, 2023
In April 2021 I was cooking a curry when I first heard breaking radio reports about the formation of the European Super League (ESL). I appreciate that most will not be as mad as I am about football and so probably have not lodged that day in their memory bank quite like me.
Most sports fans will probably recall this being a pretty shocking and at times confusing story. For many though those emotions were fleeting because the ESL seemed to die a quick death. But has it really died? Appearances can be deceiving – especially when big (very big) money and lots of lawyers get involved.
The Legal Battle
Beyond mass fan rebellion, one of the key reasons that the ESL project appeared to collapse fast was the robust and quite legalistic reaction of FIFA and UEFA.
FIFA and UEFA dominate football governance and they swiftly issued robust proclamations about the consequences for Clubs and players considering participating in the ESL. Chief amongst FIFA and UEFA’s statements were that:
- They would not sanction the ESL as an approved European football competition
- Participating ESL players and Clubs would be banned from all FIFA and UEFA competitions for club and country (Champions League, World Cup and so on)
Once this became clear most observers could be forgiven for thinking that the ESL project could never have legs.
Following a recent non-binding advice by the Advocate General to the European Court of Justice (CJEU) published on the 15th December 2022, it looks like the ESL’s legs are becoming slower and shakier than ever but they have not given way just yet.
This is a very quick explainer (and maybe this warrants a longer one if people have questions/are interested is below) of what happened on 15 December 2022 and what it means.
C-333/21 European Superleague Company
It won’t surprise anyone to learn that those who stood to make a lot of money from the ESL did not give up the fight just because all but 3 of the founding Clubs (Real Madrid, Barcelona and Juventus) backed out almost overnight. One legal angle of attack the remaining ESL backers have used is to challenge the lawfulness of any decision by FIFA or UEFA to carry out their threatened refusals to sanction the ESL and their bans against ESL participants.
Whilst the case relates to EU Competition Law, its findings may have numerous ramifications for sport in the UK, not least for the 6 Premier League Clubs who (at one time) seemed keen on the ESL project.
In 2021, the ESL took its case to a Spanish court in Madrid. As is usual where complex points relating to EU Treaties arise, the Madrid Commercial Court subsequently sought guidance from the Luxembourg based CJEU.
The key Q&As before the CJEU
The case raises some fundamental issues about aspects of Articles 101 and 102 TFEU (being key EU competition law provisions) in relation to sports competitions and also with regard to general competition law policy. The precise questions referred to the CJEU are lengthy and legalistic but the questions and preliminary answers given in the Opinion of the CJEU Advocate General can be summarised as follows:
- Are the FIFA/UEFA rules, under which any new competition (like the ESL) is subject to prior approval, compatible with EU competition law?CJEU Advocate General’s Answer: Yes – FIFA/UEFA’s Rules on prior approval of a of a new pan-European interclub football competition are compatible with EU Law.
- Can FIFA/UEFA lawfully threaten to sanction clubs and players who are involved in the ESL?CJEU Advocate General’s Answer: In respect of Clubs – yes FIFA, UEFA and national federations can lawfully issue threats of sanctions against Clubs who participate in a project to set up a new pan-European interclub football competition such as the ESL.
In respect of players however, the threatened sanctions involving exclusion targeted at players who have no involvement in the project in question are disproportionate, in particular as regards their exclusion from national teams.
There were a couple of further findings on the issue of marketing rights and approvals which both went in FIFA and UEFA’s favour too.
What does this all mean for football?
It is a bit early to say but the above is not good news for ESL stakeholders or those who want to see the ESL come to fruition.
Ultimately, the above answers are merely advice by the Advocate General to a Grand Chamber of 15 CJEU Judges. The CJEU will provide binding determinative answers later in 2023. Personally I would expect the CJEU to align itself with the advice given by its Advocate General for various reasons. To some it may seem like FIFA and UEFA have a legalised monopoly on running football competitions in Europe and globally. And to an extent that is true. Ever since the seminal decision in Meca-Medina and Majcen v Commission (“Meca-Medina”), sport has enjoyed allowances within competition law which most industries are not granted.
The Grand Chamber of the CJEU should assess the compatibility of the relevant FIFA/UEFA rules under challenge by the ESL, within the framework established by the CJEU in the Meca-Medina case that is applicable both for Articles 101 and 102 TFEU.
Every court case is uncertain to some extent. My gut tells me however that the special status enjoyed by sport will be fundamental in guiding the CJEU to grant FIFA and UEFA victory in this particular battle with the ESL.
I am sure it will not be the last we hear of it though.
If you are not a fan of FIFA or UEFA then I doubt you will be pleased at the outcome in the ESL case but that is a different discussion altogether which would require an article many times longer than this one……
The full text of the Advocate General’s Opinion is here.
What about other sports?
Whilst it’s a case all about the ESL, I expect the CJEU’s full ruling to be of interest to the world of professional sport (not just the lawyers but owners, executives, agents, players and fans, I hope) because it may have wide and helpful ramifications.
For example, there are multiple sets of litigation ongoing involving golfers who are members of the new LIV Golf Tour. Whilst not totally analogous in law, LIV Golf, like the ESL is a disruptor in a market previously run in Europe by the DP World Tour (formerly called The European Tour). The DP World Tour are resistant to LIV Tour members playing in some DP World Tour events. Like FIFA/UEFA, the DP World Tour is essentially saying “if you play for the opposition you cannot play in some of our events too”. Some of the golf related litigation is taking place within private arbitrations so we may not get transparency on the legal arguments. It will be interesting to see though whether LIV Golf members or the DP World Tour prevails and how much reference the lawyers involved might choose to make to the Advocate General’s Opinion which sparked this article.
Whether it’s the ESL in football or LIV in golf, sport will always have disruptors who enter the market and try to attract stars to join them.
The decision in the ESL v FIFA/UEFA case needs to be watched very carefully by prospective disruptors and their professional advisers. The CJEU’s findings may shape how new sports competitions are conceived and modelled and how their backers seek to argue their cases to try and secure their spot in the market.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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