I. Introduction
While UEFA and FIFA have historically maintained a dominant market presence in “organizing and marketing interclub football competitions within the European Union,” [1] they have also restrained emerging entities from accessing this market. These organizations have repeatedly stressed the importance of successfully facilitating equitable competition within their leagues and tournaments, fostering opportunities for newcomers to contend for championship titles. On December 21, 2023, European Court of Justice (“ECJ”) took a page from their book and granted the nascent European Super League (“ESL”) an opportunity to explore the organization of a new pan-European interclub football competition. Although ESL will still need official approval, [2] this decision questions the very existence of the organizational structure of the game; marking a departure from the entrenched dominance of established entities, potentially opening avenues for greater competition and innovation in the European football landscape.
II. Legal Background
A. Formation of the European Super League
European Super League, governed by Spanish law, announced its plan to organize “the first annual European football competition to exist independently of UEFA” in April, 2021. [3] The organizing company, ESLC, operates based on a semi-open business model; its shareholders consisted of European football clubs, including the “Big Six” of the Premier League, and the sports development company A22. [4] Although being subject to a prior approval under Articles 22 and 71 to 73 of the FIFA Statutes, and Articles 49 and 51 of the UEFA Statutes, [5] ESLC announced the plan to launch the new league.
B. Retaliation from FIFA and UEFA
The proposed plan sparked widespread protests among football fans and national governments, especially the UK government, who vowed to block British clubs from joining ESL under the forthcoming Football Governance Bill. [6] More importantly, UEFA, FIFA, Football Supporters Europe, LaLiga, the European Club Association, European Leagues and FIFPro Europe issued a joint statement, asserting that "[t]here is no place for any type of 'super league' in Europe. Sporting merit is what counts." [7] This statement from FIFA and UEFA affirmed that any club or player taking part in ESL would be expelled from the competitions organized by FIFA and UEFA, such as the Champions League and the World Cup. [8] Public pressure and the threats of sanctions quickly resulted in nine out of twelve clubs withdrawing from the ESL. The remaining clubs, led by the support of two La Liga giants Real Madrid and Barcelona, argued that UEFA, with the support of FIFA, was running an illegal monopoly. [9] The ESL then brought an action before the Commercial Court in Madrid (“Juzgado de lo Mercantil de Madrid”), contending that prior approval rules and associated sanctions under FIFA and UEFA statutes were in breach of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”), which prohibits anti-competitive agreements, and Article 102 of TFEU, which prohibits the abuse of a dominant position.
In July, 2021, the Madrid Court issued a preliminary injunction and ordered UEFA to (1) cancel disciplinary proceedings against clubs supporting the ESL; (2) render “inconsequential” the retaliatory measures such as fines, sanctions, and obligations, imposed on the clubs affiliated with ESL; and (3) publish the actions taken in compliance with the injunction on its official website. [10] The Madrid Court also requested a preliminary ruling to the ECJ under Article 267 TFEU to address issues regarding competition law and freedom to provide services.
III. The European Court of Justice's Decision
A. Abuse of a Dominant Position and Anticompetitive Agreements
The ECJ held that adoption and enforcement of rules under FIFA and UEFA Statues wield significant influence over the organization of competitions, and agreed that UEFA holds “a dominant position (if not a monopoly) on that market, since it is the sole organizer of all major interclub football competitions at European level.” [12] Although Article 102 does not sanction the existence of a dominant position per se, the risk of an abuse of such power may warrant restrictions, obligations, and review. [13] The court concluded that adoption and implementation of rules and sanctions by FIFA and UEFA constitutes an abuse of a dominant position.
Similarly, FIFA and UEFA provisions on prior approval, participation, and sanctions provide no framework, and fall short of the Article 101 standard, which requires that that the substantive criteria or the procedural rules of these entities are transparent, objective, precise, non-discriminatory and proportionate. The court ruled that the aforementioned provisions constitute “a decision by an association of undertakings having as its object the prevention of competition.” [14]
The decision of the ECJ, while seeming like a win for the ESL, does not mark the end of the FIFA and UEFA monopoly. Through further arguments and evidence, FIFA and UEFA may benefit from an exemption to the application of Article 101—by meeting the stringent standard of proving anticompetitive object—or be considered justified under Article 102—by showing that their conduct was necessary, and that the exclusionary effect was outweighed by consumer benefits. It will be for the Commercial Court in Madrid to rule on these issues. [15]
B. Future Implications
While the European Court of Justice's decision may not have unfolded like a fanfare of a Champions League final, its significance will be imminent within the corridors of European football governance. The ruling's gradual effects will no doubt leave a mark on the future landscape of football organizations in Europe. By openıng the door for future enforcement actions against UEFA and FIFA, this decision may garner criticism for creating a standard for heightened regulatory oversight that could distort competition. Regardless, it ultimately represents a commitment to the principles of transparency, the freedom to provide services, and the preservation of fair competition within the realm of European football.
Zeynep Karageldi is a passionate first-year law student at Cardozo School of Law with a keen interest in soccer and basketball. Serving as a 1L representative of the Cardozo Sports Law Association, she delves into the intersection of sports and law, particularly focusing on intellectual property, antitrust, and contract law. She can be found on LinkedIn at this link.
References:
[1] C-333/21, European Super League Company SL v. Unión de Federaciones Europeas de Fútbol (UEFA), Fédération internationale de football association (FIFA), ECR, (2023).
[2] Id.
[3] Id.
[4] European Super League Hopes Reignited As Court Rules UEFA and Fifa Acted Illegally By Blocking Competition, SPORTS MEDIA, (Dec. 21, 2023), https://www.sportspromedia.com/news/european-super-league-verdict-uefa-fifa-eu-ecj-court-ruling-bernd-reichart/
[5] European Superleague Company, Court of Justice, Celex No. 62021CJ0333 (2023)
[6] Adam Forrest, European Super League Sunak Ban, Independent (Dec. 21, 2023),
[7] Bart H. Meijer and Rohith Nair, European Super League Back in Spotlight After Landmark Ruling, Reuters, (Dec. 21, 2023), https://www.reuters.com/sports/soccer/court-rules-uefa-fifa-breached-eu-law-over-super-league-2023-12-21/
[8] Ali Walker and Varg Folkman, Football’s Super League Gets Win at EU Top Court, Politico, (Dec. 21, 2023), https://www.politico.eu/article/footballs-uefa-and-fifa-lose-eu-court-bid-to-halt-breakaway-super-league/#:~:text=European%20football%20was%20rocked%20on,future%20of%20football%20in%20Europe.
[9] Id.
[10] K. Tiyagi, Madrid Commercial Court Refers UEFA & FIFA’s Anti-Competitive Kick to the ECJ, Law Blogs Maastricht, (Jan. 14, 2022), https://www.maastrichtuniversity.nl/blog/2022/01/madrid-commercial-court-refers-uefa-fifa’s-anti-competitive-kick-ecj
[11] Case C-333/21, Opinion of Advocate General Rantos, ECR, (2023), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A62021CC0333
[12] C-333/21, European Super League Company SL v. Unión de Federaciones Europeas de Fútbol (UEFA), Fédération internationale de football association (FIFA), ECR, (2023).
[13] Id.
[14] Id.
[15] Id.
