The proposed European Super League (ESL) needs little introduction – when announced in April 2021, the plans to launch a breakaway league involving some of Europe’s biggest clubs received a severe bashing in the court of public opinion, with impassioned reactions across society, from fans to national governments.
The project has now reached the highest European court, following a referral from the Spanish courts in an action brought on competition law grounds by the promotors of the project against UEFA and FIFA, in light of the response of football’s governing bodies to the plans.
The core of ESL’s case is its allegation that UEFA and FIFA’s rules which discourage the formation of a breakaway league are incompatible with EU competition law. The opinion of the Advocate General (a precursor to the full judgment from the CJEU in the new year) published on 15 December 2022 (CURIA - Documents (europa.eu)), pours a considerable amount of cold water on their claim and strongly supports the position of the governing bodies.
In robust terms, AG Athanasios Rantos gives the clear view that he regards any arguable restrictive effects of UEFA and FIFA’s rules as proportionate to legitimate objectives pursued by those bodies, therefore qualifying for exemption from the EU competition law prohibitions.
At the heart of the opinion is the acknowledgement of the “specificity of sport”, a concept introduced into EU law in the Treaty of Lisbon in 2009 and reflected in a range of other EU acts. This gives expression, in the words of the AG, to the “constitutional recognition of the European Sports Model” – including acknowledgement of the pyramidal structure of sport in Europe, the promotion of open competitions involving promotion and relegation and the priority given to sporting merit.
The AG recognises UEFA and FIFA’s rules as supporting these legitimate objectives, with the ESL (which would have a predominantly closed structure, supporting an historical elite irrespective of sporting merit) representing the opposite. When considered in the context of the exemption criteria under Article 101(3) of the EU Treaty, the AG makes a powerful case that the approach of the governing bodies is inherent in the pursuit of legitimate objectives and is proportionate to the objective achieved (and thus qualifies for exemption under those criteria).
The Advocate General acts as an advisor to the CJEU, and this opinion does not formally bind the court - although opinions are usually followed and are regarded as bellwethers of the decision to come. The opinion has been welcomed by UEFA and FIFA, and they and other established leagues and competitions will be hoping that the CJEU is equally supportive when it gives judgment in the new year.
Separately, in an opinion in relation to the eligibility rules of the International Skating Union issued on the same day, AG Rantos proposed that a decision of the EU General Court which had found that those rules were anticompetitive should be set aside. Again, he pointed to legitimate objectives arising from the specificity of sport as providing grounds for exemption against claims that sporting rules might have an anticompetitive effect.