Introduction
On 15 December 2022, at the Court of Justice of the European Union (CJEU), Advocate General Athanasios Rantos (AG Rantos) delivered his non-binding Opinion in case C-333/21 European Superleague Company. The Opinion focuses on the compatibility of UEFA’s pre-authorisation procedure and disciplinary sanctions regime with Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
This article seeks to break down the Opinion and consider what the future – if any – holds for the controversial European Super League.
Super League case – the background
On 18 April 2021, 12 of Europe’s top football clubs announced the European Super League (ESL). The project was to establish an essentially closed competition under which the participation of the founding clubs was guaranteed regardless of sporting performance (with only a handful of slots available for all remaining European clubs). The founding clubs sought to replace their participation in the Champions League with this new competition whilst remaining in their domestic competitions.
Alongside the announcement of the project, proceedings were initiated by the ESL against UEFA before a Madrid Court so as to prevent any potential disciplinary actions against the founding clubs. On the same day, the Madrid Court acting ex parte requested the European Court of Justice (ECJ) to provide a preliminary ruling on the question(s) of whether UEFA’s pre-authorisation procedure and disciplinary sanctions regime amount to anti-competitive concerted practices and/or abuse of dominance, breaching Articles 101 and 102 TFEU respectively.
The organisation of football club competitions is currently subject to prior authorisation by football governing bodies (i.e., FIFA, UEFA and/or the relevant national football associations, based on each body’s territorial competence) to ensure all tournaments are organised in accordance to common overarching international standards. Similar pre-authorisation rules are applied in many other sports.
The proceedings at both the national and ECJ level continued despite the project collapsing within days of its announcement in the face of strong opposition from almost all stakeholders in the game. Much of this stemmed from concerns about how the ESL could render domestic competitions as irrelevant in comparison, and that it would destroy the ideas behind promotion and relegation systems – a key element of the ‘European Sports Model’.
In July 2022, a hearing before the ECJ was held. Both the Commission and 23 EEA Member States endorsed UEFA’s position as the body responsible for European football and emphasised the role of its pre-authorisation system in the protection of the European Sports Model.
On 15 December 2022, AG Rantos delivered his non-binding Opinion on the case. The Opinion highlights the importance of the European Sports Model and the special role played by sports governing bodies (SGBs) such as UEFA, as enshrined in Article 165 TFEU.
Pre-authorisation and sanctions
AG Rantos finds that SGBs such as UEFA do not breach EU competition rules by subjecting any new competition to prior approval, nor by enforcing them by means of a sanctions regime, provided the conditions established in Meca Medina and Majcen v Commission (2006) are met (the Meca-Medina Test). This case ruled that SGBs may deny market access to third parties without breaching competition law if:
· it is justified by legitimate objectives; and
· the measures taken are necessary for and proportionate to the attainment of those objectives.
In AG Rantos’ view, any restrictive effects arising from UEFA (and FIFA)’s pre-authorisation schemes are necessary for, and proportionate to achieving, the legitimate objectives related to the specific nature of sport that UEFA and FIFA pursue. Accordingly, EU competition rules do not prohibit FIFA, UEFA, their member federations or their national leagues from threatening sanctions against clubs affiliated to those federations, when those clubs attempt to set up a new competition that would risk undermining UEFA’s legitimate objectives.
The dual role of SGBs
AG Rantos also finds that the mere existence of an SGB’s dual role – as both regulator and organiser of sporting competitions – “does not entail, in itself, an infringement of EU competition law”. Rather, it is the abuse of this “dominant” position in the presence of a conflict of interest that may lead to infringement if an SGB favours its own events over that of a competitor.
AG Rantos does recognise that UEFA ought to comply with certain obligations in the exercise of its regulatory functions, in order not to distort competition. However, he caveats this by affirming that the regulatory and economic activities of federations are interdependent and separating them would risk falling foul of the European Sports Model.
Therefore, the main obligation of an SGB in UEFA’s position is toensure that third parties are not improperly denied access to the market to the extent that competition on that market is distorted (i.e., it cannot abuse its prior authorisation power to unjustifiably shut out a rival competition). Stephen Weatherill corroborates this in his analysis of Motoskyletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio (2008) in which he says that the “frequently endemic ‘conflict of interest’ must be recognised and avoided so that regulatory power is not used to promote commercial advantage”. [4]
Thus, whilst UEFA may continue to act in this dual role, it must comply with the legal parameters set out in International Skating Union v European Commission (2017) which state that conditions to obtain authorisation should be based on objective, non-discriminatory, proportionate criteria that is transparent and known in advance.
Constitutional underpinning of the European Sports Model
The Opinion highlights the importance of the European Sports Model. In AG Rantos’ view, Article 165 TFEU (which asserts that Union action shall be aimed at “developing the European dimension in sport, by promoting fairness and openness in sporting competitions”) gives ‘constitutional’ expression to a model of European sports that is based on the following elements:
A pyramid structure with amateur sport at its base and professional sport at its summit;
sporting merit that is achieved through open competitions made accessible by a system of promotion and relegation; and
a financial solidarity regime which allows the revenue generated at the elite level to be redistributed and reinvested at the lower levels of the sport.
The express recognition of the constitutional underpinning of the European Sports Model through Article 165 TFEU represents the most explicit reliance on and application of such constitutional underpinning, since Article 165 TFEU was inserted into TFEU in 2010. If the ECJ agrees with AG Rantos’ observation later this year, it could act as a significant clarification of the legal basis on which UEFA and FIFA (and other SGBs in the EU) are justified to govern. Crucially, this could raise the evidential bar for challenges brought under EU law in respect of the organisation of football and sports more widely. [1]
Key takeaways
AG Rantos’ Opinion read together provide important clarification on the interpretation of the European Sports Model, and recognises, inter alia, the following:
The protection by an SGB of its economic interests is not, in and of itself, anticompetitive. As AG Rantos comments: “saying otherwise would be tantamount to prohibiting any economic activity by SGBs when economic objectives are inherent in their activity”;
The mere presence of a conflict of interest is not problematic under EU competition law; and
The “special responsibility” borne by a dominant body lies in its obligation to ensure that third parties are not unduly denied access to the market.
What next for the ESL?
AG Rantos’ Opinion marks the last step of the preliminary ruling proceedings before the ECJ delivers its final judgement in spring. Whilstopinions of Advocates General are not binding on the ECJ, they are considered very influential – 65% of ECJ judgements go the same way. [3]
If the ECJ agrees with AG Rantos’ findings on the compatibility of UEFA (and FIFA)’s stance with EU law, the ESL clubs will without prior approval be unable to lawfully organise their own independent competition outside the UEFA and FIFA domains whilst continuing to participate in FIFA and UEFA competitions. This would not necessarily stop the establishment of a new European competition without approval, but it would mean that any such competition and its participating clubs would need to run outside the existing governance structures of FIFA and UEFA.
However, with AG Rantos finding that the ESL’s proposal of an effectively closed competition potentially conflicts with the pursuit of legitimate objectives such as participation based on equal opportunity and sporting merit, a less conflicting structure may lead to a different analysis.
Bibliography
[1] ARNOTT, B. 2022. Body blow for breakaway sports events – Advocate General’s Opinions endorse the European Sports Model [Online]. Linklaters. Available: https://www.linklaters.com/en/insights/blogs/sportinglinks/2022/december/body-blow-for-breakaway-sports-events[Accessed 23 December 2022].
[2] PIJETLOVIC, K. 2022. A Summary Of The Advocate general Opinion In The European Super League Case [Online]. Available from: https://www.lawinsport.com/topics/item/a-summary-of-the-advocate-general-opinion-in-the-european-super-league-case-2 [Accessed 23 December 2022].
[3] PATEL, A. 2022. Protecting the European sports model: Win It On The Pitch [Online].https://www.linklaters.com/en/insights/blogs/sportinglinks/2022/february/protecting-the-european-sports-model-win-it-on-the-pitch [Accessed 21 January 2023].
[4] WEATHERILL, S. 2015. Article 82 EC and sporting ‘conflict of interest’: The judgement in MOTOE. Sports and the Law Journal, 2, 10-16.
[5] WAELBROECK, D. 2022. In the European Super League case Advocate General Rantos supports UEFA in its defence of the European Sports Model [Online]. https://www.ashurst.com/en/news-and-insights/legal-updates/avocate-general-rantos-supports-uefa-in-its-defence-of-the-european-sports-model/ [Accessed 21 January 2023].
[6] KILLICK, J. 2022. AG opinion sides with UEFA in the Super League case [Online]. https://www.whitecase.com/insight-alert/ag-opinion-sides-uefa-super-league-case [Accessed 21 January 2023].
[7] ZGLINSKI, J. 2022. Constitutionalising the European Sports Model: The opinion of Advocate General Rantos in the European Super League case [Online]. https://blogs.lse.ac.uk/europpblog/2022/12/16/constitutionalising-the-european-sports-model-the-opinion-of-advocate-general-rantos-in-the-european-super-league-case/#:~:text=The%20Advocate%20General's%20opinion%20largely,a%20violation%20of%20competition%20law. [Accessed 21 January 2023].
Comentarios