'We are doing this to save soccer (…) For some time now people have been losing interest' (Florentino Pérez, president of Real Madrid and of the unborn Super League)

'The new Champions league format project was driven by a desire to evolve the UEFA club competitions into something better than the spectacle we know today' (Aleksnder Ceferin, UEFA president)

What was at stake

The idea of creating a breakaway league outside the current pyramidal structure of European football is not something new. Indeed, it has been discussed by leading clubs for a long time, with the most notable initiative taking place in 1999. The then project for a European Football League (EFL) nonetheless collapsed, thanks to UEFA’s attempt to revamp its Champions League, in order to accommodate the major concerns of Europe’s top football clubs.

On 18 April 2021, the creation of a European Super League was announced. The would-be founding clubs were Arsenal, Chelsea, Liverpool, Manchester City, Manchester United, Tottenham, Atletico Madrid, Real Madrid, Barcelona, AC Milan, Juventus and Inter Milan, which were considered permanent members and would never face relegation. As the competition was supposed to have 20 teams, the other participants would have to qualify each year for the competition.[1]

Florentino Pérez, the powerful president of Real Madrid and allegedly the president of the new League, has stated that this was an attempt to ‘save football’, due to changes in fans’ preferences leading to a decrease in TV audiences.

FIFA has issued a statement, where it ‘expressed its disapproval’ and reinforced its commitment to protect the principles of solidarity, inclusivity, integrity, and equitable financial redistribution. It also called for ‘constructive dialogue’ between the parties involved, while recalling that football governing bodies should employ all lawful sporting and diplomatic means to ensure the protection of the aforementioned principles.

Two days later, in the face of an unprecedented chorus of criticism from the football world, including fans, but also from politicians and the media, the six British clubs involved, half of the founding group, withdrew from the competition and were quickly followed by others. The Super League died before its birth.

Nonetheless, this is not the end of the story[2] and there are lessons to be learned from this episode.

Measures envisaged by sport governing bodies (FIFA and UEFA)

In the aftermath of the announcement of the European Super League, UEFA’s President, Aleksander Ceferin, warned that players who would play for teams in the European Super League would be ‘banned from the World Cup and the Euro Championship’.

It is worth recalling that, under UEFA and FIFA regulations, UEFA has in principle sole jurisdiction to organize international competitions in Europe in which its member associations and their clubs participate. The organization of other competitions played in UEFA’s territory requires prior approval. European football clubs may not participate in competitions not organized or recognized by UEFA or FIFA. In a 2015 Memorandum of understanding between UEFA and the European Club Association (ECA), the latter undertook to ensure that none of its member clubs participate with any of its teams in any competition that is not organized or recognized by UEFA/FIFA. Failure to comply with these rules may be subject to sanctions.

EU law issues

Raised by the creation of the European Super League

An attempt has been made by political institutions in the EU to identify a number of common features in the way sport is practiced and organized in Europe.  Together they form the so-called ‘European model of sport’, which is often contrasted with the so-called ‘American model of sport’. These specificities have also been recognized by the EU courts and, since the Lisbon Treaty, find their legal basis in Article 165 TFEU.

The Commissionrefers in this regard to:

-        A pyramid structure for the organization of sport and sport competitions, in which sports federations play a central role;^[3]

-        A system of open competitions based on the principle of promotion/relegation;^[4]

-        A broadly autonomous sports movement that may develop partnerships with the public authorities;

-        Structures based on voluntary activity;

-        Solidarity between the various constituent elements and operators.

The Commission further stresses the importance of:

-        National teams and competitions between these teams;

-        The focus on health and the fight against doping;

-        The involvement of the public sector in the financing of sport;

-        Common management of amateur and professional sport by sport associations.

The Commission acknowledges that such characteristics enhance the positive values carried by European sport and deserve to be supported.

Despite that, sport in general and football in particular, to the extent that it constitutes an economic activity, is subject to EU law. In particular, football clubs and sport governing bodies are bound to comply with the principles of free movement of workers and services, as well as with the EU rules on competition.[5]

Notwithstanding, the EU institutions and courts also recognize certain specificities, which shall be taken into account when assessing the compliance of rules emanated from sport governing bodies with EU law. Those specificities are, to a great extent, related to the European sport’s model.

According to news reports, the envisaged Super League would not entail any of these features. In fact, its creation was an attempt to escape the so-called European model and maximize profit for the main participants. In particular, the Super League would renounce solidarity, equitable redistribution and the system of promotion and relegation, which are typical features of UEFA Champions League.

Therefore, the (closed) European Super League might give rise to competition law issues to be analyzed within the framework of Articles 101 or 102 TFEU, and that may outweigh the public interests associated with the European model of sport. In particular, considering the arguable market power of the football clubs involved, an analysis from the perspective of Article 102 TFEU (abuse of an individual or collective dominant position) cannot be excluded.

Raised by possible reactions of UEFA or FIFA

Interestingly enough, not only the inception of a breakaway league but also possible reactions to it can prove problematic in terms of EU law.

In this regard, the key point is that any sanction envisaged by sport governing bodies is not in and of itself excluded from scrutiny from the EU institutions and courts. In particular, sanctions and penalties must be analyzed in the light of their compatibility with general principles of EU law, including the principle of proportionality. First of all, they shall pursue a legitimate purpose, which in what matters now is the protection of the European sport’s model. Secondly, any measures adopted must not exceed what is strictly necessary. The threat to ban football players playing at the Super League on behalf of their clubs from the European and World Cups would be liable to such a proportionality assessment.

Indeed, the compatibility with EU law of decisions of sports associations banning from their competitions athletes that take part in alternative competitions not authorized by the concerned association has been recently addressed by the European Commission and the General Court (GC).[6] Under the statutes of the International Skating Union (ISU), the participation of a skater in an unauthorized competition exposed him or her to a penalty of a lifetime ban from any competition organized by the ISU. In December 2017, the Commission considered the ISU’s eligibility rules incompatible with EU competition provisions (namely Article 101 TFEU), in so far as their object was to restrict the possibilities for professional speed skaters to take part freely in international events organized by third parties and, therefore, deprived those third parties of the services of athletes necessary to organize those competitions. In December 2020, the GC upheld the Commission’s views. Following this ruling, even though an appeal is pending before the Court of Justice, it appears problematic to justify from an EU law standpoint a ban of football players from the European and World Cups.

Finally, it is worth mentioning that the EU courts exert close control over the legal consequences of a possible conflict of interests between a sporting body’s regulatory competences and its commercial activities.[7] Accordingly, any sanctions must be genuinely justified by, inter alia, the need to protect specificities of European football, as recognized by the EU courts.

Conclusions

• Both the attempted creation of a European closed league and the reactions to it may give rise to concerns in terms of EU law. Had the initiative been pursued to its completion, and in the absence of a strong push for common sense, it could have led to damaging endless litigation.
• In that case, self-regulation would probably no longer be enough and legislation would be needed, either at national or EU levels, to address all possible contentious issues.  The obstacles to appropriate solutions would however not be negligeable: on the one hand, no effective general solution could be found at the national level; on the other hand, in the field of sports, Article 165(4) TFEU limits the EU intervention to incentive measures and excludes any harmonization of the laws and regulations of the Member States.
• Moreover, the adoption of legislation at the EU or any other supra-national level would take time and require a strong political will and a sustained effort for consensual and proportionate solutions, which would not be realistic to presume.
• The Super League project is at least suspended for the time being. But lessons from the past tell us that projects of the same kind, backed by important economic interests and business driven, hardly ever die – they just stay on hold and wait for a new opportunity to resurface. It is therefore important that the governing bodies of European and World football, respectively UEFA and FIFA, maintain leadership in mobilizing the necessary efforts to rethink and reshape the current state of affairs.  
• That includes increased transparency, a more attractive and inclusive competition model, an effective and fair distribution of income, allowing for the correct incentives, as well as strengthening the investment in the game itself, including youth and women competitions. Particularly, racism, violence, bribery, corruption and other threats to the attractiveness of football should be fought and banned from the game.