“The FIFA and UEFA rules making any new interclub football project subject to their prior approval, such as the Super League, and prohibiting clubs and players from playing in those competitions, are unlawful,” the Court of Justice of the European Union (CJEU) ruled Wednesday on the legal battle that the major international soccer associations launched against the Super League, the proposal for a parallel competition to the Champions League that a group of Europe’s wealthiest clubs attempted to get off the ground in a fait accompli two years ago. “There is no framework for the FIFA and UEFA rules ensuring that they are transparent, objective, non-discriminatory and proportionate,” the CJEU said in its ruling.
The highest body of EU justice stated that club soccer competitions and the exploitation of the rights they generate (on the field or through merchandising) are “quite evidently, economic activities” and “must therefore comply with the competition rules and respect the freedoms of movement, even though the economic pursuit of sport has certain specific characteristics, such as the existence of associations having certain regulatory and control powers and the power to impose sanctions.”
But these “specific characteristics” must be exercised with proportionality because “where an undertaking in a dominant position has the power to determine the conditions in which potentially competing undertakings may access the market, that power must, given the risk of conflict of interest to which it gives rise, be subject to criteria which are suitable for ensuring that they are transparent, objective, non-discriminatory and proportionate,” the ruling said. “However, the powers of FIFA and UEFA are not subject to any such criteria. FIFA and UEFA are, therefore, abusing a dominant position.”
The CJEU clarified that as the preliminary questions raised by Madrid commercial court judge Manuel Ruiz de Lara are generic, the ruling “does not mean that a competition such as the Super League project must necessarily be approved. The Court, having been asked generally about the FIFA and UEFA rules, does not rule on that specific project in its judgment.”
However, the court’s ruling does imply that the rules under which it was vetoed violated EU law.
The legal battle between over the Super League, which now only contains Real Madrid and Barcelona from the initial 12 clubs involved, began shortly after the project was announced in April 2021. Two days later, Madrid’s 17th Commercial Court ordered FIFA and UEFA to refrain from sanctioning the dozen clubs that were part of the initial project (in addition to Madrid and Barcelona, the original interested parties included Atlético Madrid, Inter, Milan, Juventus, Arsenal, Liverpool, Tottenham, Chelsea, Manchester City and Manchester United) and their players. This was based on the view that both international associations held a monopoly position and under doubts about the situation’s compatibility with European Union law.
Ruiz de Lara raised six preliminary questions to the CJEU on behalf of the Spain-based European Superleague Company. The position taken on the case by the CJEU’s Advocate General, a kind of advisory body to the court that provides its opinion before the judges, appeared to have put paid to the Super League’s aspirations: “The FIFA-UEFA rules under which any new competition is subject to prior approval are compatible with EU competition law. Having regard to the competition’s characteristics, the restrictive effects arising from the scheme are inherent in, and proportionate for achieving, the legitimate objectives related to the specific nature of sport that are pursued by UEFA and FIFA,” stated Advocate General Athanasios Rantos, on the basis of his interpretation of Article 165 of the EU Treaty.
This position was a serious blow to the realization of the project led by Real Madrid president Florentino Pérez. The opinions issued by the EU Advocates General tend to coincide with the subsequent rulings of the CJEU. However, in another case on law and sport in the EU a few months later, that article was interpreted differently. In the case of Royal Antwerp v. the Belgian Football Association and UEFA, Polish lawyer Maciej Szpunar concluded that on the basis of Article 165 it cannot be justified for a private entity, in this case a sports federation, can restrict key freedoms in the EU such as competition.
The fact that the CJEU decided to rule in plenary session on these two cases plus a lawsuit brought by two Dutch skaters against the International Skating Union for breach of EU competition regulations on the same day suggests that the court is aiming to set the general framework in which European sport will be conducted from now on, and the scope of the role of the federations.
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