ECJ Super League: UEFA will never accept Champions League rival, breakaway project says

Legal Analysis 18 July

ECJ Super League: UEFA will never accept Champions League rival, breakaway project says

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Counsel for the European Super League Company questioned whether the Union of European Football Associations UEFA would ever approve a rival of the Champions League competition before a considerable crowd gathered in the European Court of Justice (ECJ) for a guidance hearing. 

“The reply of which all of you are thinking is no, never!” Super League’s counsel told the ECJ on 11 July. Minutes later, UEFA’s representative counter-attacked telling the 15-judge chamber that the closed structure of the Super League project made it “a textbook example of what is a cartel”.

The case is being heard by the ECJ Grand Chamber, comprising 15 of the EU top court’s total of 27 judges. Additionally, a record number of 20 EU member states and Norway – by virtue of its membership of the European Economic Area – chose to intervene in the oral hearing against the Super League’s arguments.

In April 2021, 12 European teams announced the organisation of a breakaway European Super League, but nine subsequently abandoned the project after it met with widespread criticism. Only Real Madrid, FC Barcelona and Juventus remained.

In parallel, the European Super League Company asked the Juzgado de lo Mercantil No. 17 of Madrid to find that FIFA and UEFA abused their dominance by attributing to themselves the discretionary power of prohibiting participation in alternative competitions, in breach of Spanish and EU competition law.

The Madrid commercial court then sent a request for guidance to the ECJ to clarify competition rules in this case.

In the morning just before the Super League hearing, the same ECJ chamber heard the parties in a sports case with certain similarities involving the International Skating Union (ISU).

The hearing in the afternoon started with Super League’s lawyer Miguel Odriozola Alén, who claimed that “nobody can be both judge and party” and that FIFA and UEFA have a conflict of interest in the case, breaching the principle of equal opportunity.

The General Court’s (GC) judgment on ISU, largely upholding the European Commission’s (EC) view that the association breached competition rules by forbidding skaters from participating in unauthorised competitions, must be regarded as a “first step”, according to Odriozola.

ISU is a ‘door’ for the ECJ to confirm that a system governed by an organisation in a conflict of interest cannot comply with the principle of proportionality, the lawyer added, insisting that a ‘monopolist’ cannot attribute to itself the power to regulate the market in which it competes.

Subsequently, the lawyer denied that the principles of Meca-Medina case law could be applied to the Super League situation, due to the fact of that conflict of interest.

The 2006 ECJ Meca-Medina judgment was invoked several times by parties and interveners. In that case, in the context of an anti-doping dispute, the court held that restrictions imposed by a sports federation are not against free competition if they are legitimately justified.

One of those referring to the Meca-Medina’s conclusions was UEFA’s representative Donald Slater, who said that sanctions are necessary to guarantee compliance with “legitimate rules”.

Slater told the court that the “richest clubs in the world” intended to create a “closed league” in which some of them would be permanent members. Those plans, which ultimately collapsed, struck a blow to the “European football model” which, according to the lawyer, has made Europe “the best place in the world to play and enjoy football”.

The authority of UEFA is not a self-attributed function, since the association is a body responsible for sports within the meaning of Article 165 TFEU, which recognises the specificities of sports and its social and educational function, Slater said. Article 165 TFEU was also mentioned several times during the oral hearing by the interveners.

Regarding the allegations of conflict of interest, Slater denied that UEFA takes advantage of its powers of authorisation, invoking its status as a non-profit organisation and public-interest entity, which he said receives only a small portion of the gains produced by competitions, which income he said it used to develop social and educational initiatives.

Finally, Slater quoted former French professional footballer “and philosopher” Éric Cantona saying that “you don’t get to be a champion without a struggle” to defend his argument that results must be determined on the merits and not by money.

Pleading for FIFA, Álvaro Pascual Morcillo said that Super League claims that UEFA has no power of authorisation, but this is an ‘hypothetical’ argument since an authorisation regime is supported by case-law and the Super League did not request an authorisation at any point.

Additionally, Pascual said that the Super League clubs wanted “to have their cake and eat it too” by continuing as members of UEFA while ensuring at the same time a spot in a closed championship.

The Super League hearing resumes today (12 July) with a continuation of oral pleadings by member states, the EC and a session of questions and answers from the bench to the parties.

The chamber was chaired by ECJ president Koen Lenaerts, while Jan Passer acted as judge-rapporteur. The remaining judges were the court’s vice-president Lars Bay Larsen as well as Alexander Arabadjiev, Jean-Claude Bonichot, Miroslav Gavalec, Niilo Jääskinen, Irmantas Jarukaitis, Küllike Jürimäe, Andreas Kumin, Alexandra Prechal, Lucia Serena Rossi, Marek Safjan, Octavia Spineanu-Matei and Nils Wahl. The ECJ Advocate General assigned to this case is Athanasios Rantos.

The European Super League Company is represented by Miguel Odriozola Alén of Clifford Chance and is supported by intervener A22 Sports Management, represented by Fernando Irurzun Montoro of Clifford Chance.

Donald Slater of Ashurst pleads for UEFA and Álvaro Pascual Morcillo for FIFA, supported by Liga Nacional de Fútbol Profesional LaLiga, represented by Yolanda Martínez Mata of Marimón Abogados, and the Royal Spanish Football Federation, represented by Pedro Callol García.

The European Commission is represented by agents Carlos Urraca Caviedes, Hubert van Vliet, Sergio Baches Opi, Mislav Mataija and Gero Meessen.

Member states intervening in the oral hearing are Spain, Czech Republic, Denmark, Germany, Estonia, Ireland, Greece, France, Croatia, Italy, Cyprus, Latvia, Hungary, Malta, Austria, Poland, Portugal, Romania, Slovenia, Sweden, as well as Norway, member of the European Economic Area.

The case is C-333/21 European Superleague Company before the European Court of Justice.

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