Plans for European Super League in football boosted by EU ruling

Under rules set by FIFA and UEFA, football clubs wishing to participate in FIFA- and UEFA-affiliated cross border competition, most notably the UEFA Champions League, as well as in a new European Super League – which, as previously envisaged, would involve some of the biggest clubs from some of the major football leagues in Europe, including Spain, Italy and England – have to obtain prior approval from the governing bodies to do so.

The Court of Justice of the EU (CJEU) said, however, that because of the power that FIFA and UEFA hold in the market, predominantly as organisers of interclub football competitions and of the exploitation of associated media rights, they need to ensure that any criteria they impose that place conditions for others’ access to the market – such as the prospective organisers of a ESL – are transparent, objective, non-discriminatory, and proportionate.

The CJEU ruled that the powers FIFA and UEFA are currently able to exercise are not subject to that criteria and that they therefore are unlawful under EU competition laws.

The court further determined that the arbitrary nature of the rules the bodies impose in respect of prior approval for participation in unaffiliated competitions – and in respect of sanctions that they can apply for breaches of those rules – constitute unjustified restrictions on the freedom to provide services under EU law.

The CJEU also said that FIFA and UEFA rules relating to the exploitation of media rights are harmful to European football clubs, media companies, and consumers, as they prevent them from enjoying new and potentially innovative or interesting competitions. However, the court said it is for the Commercial Court in Madrid, which had referred the questions of EU law pertaining to the FIFA and UEFA rules for football to the CJEU for interpretation, to determine if the rules provide benefits to other stakeholders in football – such as through the redistribution of profits generated from the exploitation of media rights.

In a similar case also ruled on by the CJEU on Thursday, the court ruled that restrictions imposed by the International Skating Union (ISU) on skaters taking part in non-ISU events infringed competition law rules – upholding an earlier ruling in the case by the EU’s General Court.

The CJEU in the ELS case did not specifically rule on whether the competition should be approved; it is for the Spanish court to consider the case in line with these principles. The CJEU in the ISU case specifically noted that rules imposing severe penalties on athletes who take part in unauthorised competitions would be contrary to these principles. 

A third sports case was also ruled on by the CJEU on Thursday. Belgian football club Royal Antwerp had challenged UEFA rules that require clubs participating in its cross-border European competitions to ensure a quota of homegrown players within their squads for those competitions.

The CJEU said that those UEFA requirements could breach competition rules on the basis that they restrict the possibility for clubs to compete with one another on the basis of players they recruit, regardless of where those players were trained. However, it said it would be for the referring court in Belgium to reach its own verdict on that – and that it would remain open to UEFA to show that those restrictions are justified because, for example, they promote investment in local talent and deliver wider social and educational benefits from participation in sport.