Freeing Football in 2024? Analysing the ECJ Super League Decision
Rewinding to late 2023, the European Court of Justice (ECJ) shook the world of football governance, having unexpectedly denounced FIFA and UEFA’s interference with the proposed European Super League of 2021.
In the lead up to the decision many indicators suggested that FIFA and UEFA’s status quo would be preserved if not strengthened. Advocate General Athanasios Rantos of Greece only in 2022 pointed to the compatibility of current international football governance and EU competition law.
Nonetheless, the court deemed FIFA and UEFA unlawfully blocked the proposed league which abused their ‘dominant position’ in international football governance.
Whilst the decision sparked ecstasy for the European Super League Company and A22 who brought the claim, it is questionable if this decision directly endorses the new Super League but rather opens the football governance landscape to more competitions vying for club participation.
The ongoing legal scenario raises many questions as the whole of the football world looks on. How can the EU get involved in private football decisions? What was ‘unlawful’ with FIFA and UEFA’s conduct in 2021? And what does the ECJ’s decision ultimately mean for the future of the beautiful game?
When can EU law intervene with sports decisions?
Whilst rumours of the revival of the European Super League shocked fans, so too did the EU’s involvement as many questioned the grounds the EU could rule on footballing disputes and decisions. Nevertheless, this is nothing new as the battle between the EU and sport governing bodies, like FIFA and UEFA, has ensued since the 1970s.
Subsequent case law has both blurred and readjusted the boundaries between the legal and footballing spheres, with the cases of Walrave and Koch (1974) and Bosman (1995) being two of the most influential. So influential in fact the ECJ has referenced both in intervening with the European Super League scenario.
Walrave and Koch (1974)
The case of Walrave and Koch provided the first objective distinction in clarifying when sport governing bodies had to conform to EU law standards. It did so by clearly breaking down all sporting activity into two separate categories.
The first was activity of ‘purely sporting’ nature, for example the rules of the game or disputes around sporting integrity. This category, due to its sector specificity, was exempt of EU law applicability. The second category of sporting activity, which is subject to the scrutiny of EU law, is when such activity constitutes as having economic effect.
Regarding the European Super League, the ECJ found that whilst the interclub footballing element of the proposal was purely of sporting concern, the commercialisation of the event through media and broadcasting rights qualified the activity as having economic influence. Under Walrave and Koch this distinction placed it firmly into the second category, therefore EU law would be applicable.
The Bosman case further affirmed EU law applicability and control over sport governing bodies and particularly its superiority over UEFA. In 1991 UEFA legislated the ‘3+2’ rule which restricted the number of foreign players a team could field to encourage home-grown talent.
Nonetheless, this opposed the EU free movement principles regarding free movement of workers as the rule arguably deterred players signing for foreign clubs. As decided in a lengthy legal battle the free movement of workers took priority over the UEFA authority.
Whilst not directly linked to the 2021 European Super League battle which involved EU competition law, the Bosman case opened the floodgate for all facets of EU law to trump many sports governing bodies and especially UEFA.
In combination, the two cases firstly gave EU law the power to act in sporting situations that held economic influence and cemented EU Law’s supremacy to many laws drawn up by sport governing bodies.
The ECJ’s proceedings and decision whilst seemingly emerged from nothing in a decision which has rocked the footballing world, have in fact been grounded in historic and influential rationale in the changing landscape of football and the law.
FIFA and UEFA’s ‘dominant position’ and EU competition law
Having established why EU law was applicable to the European Super League situation, how was FIFA and UEFA’s actions back in 2021 unlawful?
The ECJ applied principles of EU competition law and confirmed European football media rights and their distribution as essentially an economic market. Having analysing FIFA and UEFA’s standing in this market, the ECJ also found that they held a ‘dominant position’.
Holding a ‘dominant position’ simply means FIFA and UEFA are the biggest economic force in organising the distribution of media rights and essentially they could act independently in the market regardless of other competition or consumer demands.
However, simply being in a ‘dominant position’ itself is not an infringement of EU competition law. It is the abuse of such a position which the ECJ did not like. An actor in a ‘dominant position’ must be transparent, objective, non-discriminatory and proportional to be legitimate under EU competition law.
By intervening and blocking the 2021 European Super League, FIFA and UEFA breached this special responsibility which came with the highly influential position. The two sports giants acted beyond their powers by threating club expulsion, should they join the European Super League, which arbitrarily closed off the market for their own self-interest.
As the ECJ also pointed out, the arbitrary constriction on European football media rights created by FIFA and UEFA also hinders the freedom to provide services principle.
The ruling from the ECJ truly shined a light on the control FIFA and UEFA had and firmly brings the two European football powers back to reality where football is not controlled under a monopoly.
The wider picture post-decision
With the structure of European football changing after this judgement, it can be hard to determine what will come next. One thing that is for certain is that the ruling is not an endorsement of A22’s European Super League.
The ECJ made it clear that whilst they might have denounced FIFA and UEFA’s position, they have simply levelled the scales rather than naming an heir to the European football empire.
Moreover, the European Super League remains unlikely in the current climate. Most clubs did not forget the elitist sentiment of the league in 2021 with Manchester United, PSG, Liverpool, Atletico Madrid and others rejecting the return of the league within days of the ruling.
Only Barcelona and Real Madrid openly supported it, with Florentino Pérez rebelliously standing in front of his collection of UEFA Champions League trophies when detailing the benefits of the breakaway league.
UEFA president, Aleksander Čeferin, mocked the two clubs and the competition soon after, pointing out the limited competition possible with Barcelona and Real Madrid as the only eager participants.
Nevertheless, Čeferin must not be oblivious to the now unsteady landscape of European football. Now that no sole organisation has exclusive control over European football, power will be shifted to football clubs when more options for European competitions inevitably emerge.
The shift in power dynamic will force these football organisations to be more receptive of clubs wants and needs, because if they are not clubs now have the freedom to simply leave for an alternative competition and take their viewership figures with them.
It will be interesting to see the application of this newfound club power in the UK. The new independent regulatory body will create a licensing system which will forbid breakaway leagues however, if a new European competition does emerge which is compatible with domestic football it will be interesting to see the regulator’s reaction to this.
The influence of the ECJ decision may not be noticed now, but the ruling marks the dawn of the shifting football power structure. A legal end to FIFA and UEFA’s European monopoly brings with it the empowerment of club football who now wield more power in the competitions they compete in.
You can find the ECJ’s official press report linked here.
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