Review Of The EU Advocate General's Opinion: The Fate Of The European Super League

Published date31 January 2023
Subject Matterntitrust/Competition Law, Antitrust, EU Competition
Law FirmKhurana and Khurana
AuthorPranav Subramanyan

The detailed opinion dated 15th December 2022 ("Opinion"), rendered by Mr. Athanios Rantos, Advocate General of the European Court of Justice (ECJ) regarding the characteristics of the proposed European Super League (ESL), which is supported by Barcelona, Real Madrid, and Juventus, is a major setback for the said project. It has been rendered following the request for a preliminary hearing made to the ECJ by the Commercial Court, Madrid ("Referring Court"). The European Super League Company ("ESLC") accused FIFA and UEFA of violating the Treaty for the Functioning of the European Union ("TFEU")1, and accused them of anti-competitive practices2.

ISSUES BEFORE THE ECJ:

  1. Whether Articles 22, 71, 72, and 73 of the FIFA Statute3, and Articles 49 and 51 of the UEFA Statute4, violate Articles 101 and 102 of TFEU?
  2. Whether Articles 101 and 102 TFEU permit FIFA and UEFA to threaten sanctions of exclusion of the ESL members?
  3. Whether Articles 66 and 67 of the FIFA Statutes violate Articles 101 and 102 TFEU?
  4. Can ESLC claim protection under the exceptions in Article 101(3) of TFEU, and would the sanctions threatened by FIFA and UEFA constitute abuse of dominant position under Article 102 TFEU?
  5. Whether prior approval system violates Articles 45, 49, 56, and 63 TFEU?

OBSERVATIONS:

  1. The European Sports Model: Rantos examined the European Sports Model envisaged by Article 165 of TFEU, which requires EU to promote European sporting issues, considering the specific nature of sport, the structures based on voluntary activity, and social and educational functions. It also describes the EU's objective of developing European dimensions in sport by promoting fairness and transparency in competitions, cooperation between governing bodies, and protecting sportspersons' integrity. Its objective is to promote open competition, with a transparent system and competitive balance, prioritising sporting merit. It also propounds financial solidity, which ensures revenue generation, and redistribution thereof. Sports federations must ensure effective governance and compliance of the rules with respect to the concerned sports.5. Article 165 should be read with Articles 101 and 102 TFEU, which apply to sporting activities especially with economic considerations.
  1. Conflict of Interest of FIFA & UEFA: The next point discussed was the conflict of interest of FIFA and UEFA in performing economic activities, namely the organising and marketing competitions, and also having regulatory powers. The ECJ held in Motosykletistiki Omospondia Ellados NPID v Elleniko Dimosio6, that if a rule confers on a legal person, organizing and commercially exploiting events, the power to designate persons to organise the same, and set the conditions thereto, such entity has an advantage over its competitors, thereby preventing entry of other entities into the market. This power should be subject to restrictions and review, to prevent distortion of competition. In this case, UEFA's dual role is established, and is subject to restrictions while performing its regulatory duties. It should ensure that third parties are not unduly denied access to the football market. It may impose restrictions on third-party entry, which should not infringe Articles 101 and 102 TFEU.
  1. UEFA & FIFA...

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