On 21 December 2023, the CJEU issued a long-awaited judgment related to the “Super League”, a project announced in 2021 by top European football clubs aimed to rival UEFA competitions, namely the Champions League. The project has been heavily criticised by various football stakeholders, including football governing bodies, leagues, the European Club Association, top clubs which refuse to participate in the project, and groups of fans, and a legal battle has begun.
Already in May 2021, a Spanish commercial court referred a preliminary question to the CJEU on whether FIFA and UEFA violated Sections 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) which prohibits agreements that could disrupt free competition in the European Economic Area’s internal market and abusive conduct by entities that have a dominant position.
The Spanish court pointed out that UEFA acts not only as a governing body but also as a disciplinary institution and distributor of incomes to the clubs involved in the European competitions and also pointed out the possible abuse of the dominant position of UEFA by opposing the Super League project via sanctions against clubs participating in the new project and threatening their exclusion from UEFA competitions.
In December 2022, the advocate general issued an opinion for the CJEU stating that FIFA’s and UEFA’s regulations were compatible with EU competition law. Despite the statistics showing that the CJEU follows, in the majority of cases, the opinion of the general advocate, this was not the case in hand.
In its judgment of 21 December 2023 (case C-333/21), the court stated that the FIFA and UEFA rules, making any new interclub football project (such as the Super League) subject to their prior approval , and prohibiting clubs and players from playing in those competitions, are unlawful, and that the rules giving FIFA and UEFA exclusive control over the commercial exploitation of the rights related to those competitions are such as to restrict competition.
The judgment is based on various considerations, the most important being that there is no framework for ensuring the FIFA and UEFA rules are transparent, objective, non-discriminatory, and proportionate. The CJEU went even further in its observations and held that the FIFA and UEFA rules are of an arbitrary nature and that their rules on approval, control and sanctions must be held to be unjustified restrictions on the freedom to provide services.
In parallel, the CJEU observed that the FIFA and UEFA rules relating to the exploitation of media rights are such as to be harmful to European football clubs, all companies operating in media markets, and, ultimately, to consumers and television viewers, by preventing them from enjoying new and potentially innovative or interesting competitions.
On the same day, the CJEU issued two other judgments in the field of sports law and its intersection with EU competition law.
First, the CJEU ruled (C-124/21) in a case opposing the International Skating Union (ISU) and European Commission that the rules of the ISU, which impose severe penalties on athletes who take part in competitions unauthorized by the ISU, are unlawful because they are not subject to any guarantee ensuring that they are transparent, objective, non-discriminatory and proportionate. Such rules give, as per the CJEU, the ISU a clear advantage over its competitors and have unfavourable effects for athletes as well as consumers and broadcast audiences.
Second, the CJEU held (case C-680/21) in a case concerning Royal Antwerp Football Club, which tackled the rules of UEFA (and the Royal Belgian Football Association) requiring football clubs to have a minimum number of “home-grown players” on their teams, i.e., players who are trained at the national level (or as per UEFA, trained within a given club), that the rules on home-grown players could have as their effect the restriction of the opportunity of clubs to compete by recruiting talented players, regardless of where they were trained. Now, it will be up to a national (Belgian) court to determine whether those rules restrict competition and the free movement of workers.
All three decisions the CJEU issued on 21 December 2021 clearly confirm the position of the CJEU as a key player dealing with the challenge of reconciling legitimate sporting needs with the rules of EU competition law, and in finding a balance between sport as a societal institution and as an economic driver.
There is no doubt that professional sport is an economic activity and therefore also subject to EU competition law. At the same time, the growing importance of the sports sector and its professionalization and commercialization lead to an increasing number of cases challenging the monopoly of traditional sports associations.
These cases are testing the boundaries of the specificities of sport in view of competition law, i.e., to what extent sport should be privileged due to its peculiarities (monopolistic pyramid structures of associations, need for a solidarity, health objectives, etc.) or, on the contrary, should be subject to regular (strict) competition law standards like any other industry.
The above decisions tend rather to the second approach, under which every entity would have a licence to compete and the right to participate on the (free) sports market as long as it complies with certain criteria (transparency, solidarity, etc.).
Although the CJEU stated in its judgment in the Super League case that its decision “does not mean that a competition such as the Super League project must necessarily be approved”, it clearly opens the door not only to the Super League project but also to possible future attempts to set up rival sports competitions parallel to existing ones.
One thing is for sure though, plenty of legal battles surrounding sport still lie ahead.
