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European ‘Super’ League – a legal synopsis

Just under a month on and the concept of the proposed European Super League (ESL) is still talk of the town.

Whilst the majority of the initial founding members quickly withdrew their intention to participate following rampant fan unrest, a select few (Juventus, Real Madrid and Barcelona) have remained adamant on proceeding with their intentions of setting up the ESL which seeks to serve as a break away from the European competitions organised by UEFA.

The proposal for a European ‘Super’ League has triggered off a legal battle between UEFA on the one hand and those clubs who still believe a ball will eventually be kicked in the ESL on the other hand.

As things stand, a lengthy legal battle is envisaged to be played out in various courtrooms across the world, with the Court of Arbitration for Sport (CAS) as well as the Court of Justice of the European Union (CJEU) also highly likely to be called upon at some point in time for their respective interventions.

Whilst UEFA did initially threaten to ban those clubs who agreed to participate in the ESL at the earliest opportunity, UEFA backtracked on their threat when it reached a compromise with those teams who agreed to pull out from the ESL.

With three clubs marching ahead with their ambitions, it still remains to be seen what disciplinary action UEFA will take against them as well as potentially any future club/s that might decide to take the plunge and participate in the ESL.

UEFA and FIFA have also threatened to prevent those players who participate in the ESL from appearing at international competitions organised by UEFA/FIFA.

Arguably one of the biggest defences that promoters of the ESL are banking on to proceed with their plans is the argument of competition law.

Real Madrid president Florentino Perez has already brought about a case in Madrid’s commercial court to safeguard the remaining clubs interests and ensure that no sanctions are imposed against them.

As a precautionary measure, the judge presiding such case has issued a prohibition on UEFA from ordering sanctions against the remaining ESL clubs, pending a decision on the merits.

Last week, the same court has made a referral to the European Court of Justice to deliver a ruling on whether the actions of FIFA and UEFA violate Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), the outcome of which will be closely followed by many.

From an analysis of previous rulings delivered by the European Union courts, such courts have been consistent by establishing that sport and the activities of sporting bodies are subject to competition law.

Thus one would have to analyse whether the threats that are being made by UEFA and FIFA to ban teams and players respectively constitutes a breach of Article 101 of the TFEU or an abuse of a dominant position in breach of Article 102 of the TFEU.

In order not to constitute a breach of European competition law, UEFA’s actions have to be seen as having a legitimate objective and must be found to be inherent and proportionate to the objective at hand.

In a recent appeal lodged to the General Court of the European Union by the International Skating Union, the General Court ruled that a sporting association is required to ensure, when examining applications for authorisations, that third-party organisers of that sporting competition are not unduly deprived of access to the relevant market, to the extent that competition on that market is distorted.

The General Court went on to rule that such rules must be regarded as clearly defined, transparent, non-discriminatory and contain reviewable authorisation criteria, which, as such, would be capable of ensuring the organisers of competitions effective access to the relevant market.

The CAS could potentially be another legal institution to hear the ESL dispute.

The CAS might potentially be called upon to examine whether any possible sanctions imposed by UEFA/FIFA against clubs or players would constitute a breach of relevant laws and/or regulations, including any arguments possibly raised by the parties as to whether the relevant rules are anticompetitive.

Another legal issue that might escalate in due time is whether the remaining founding clubs will seek legal action against the ‘rebellious’ clubs who have withdrawn, when such clubs are still considered to be football allies on paper.

Whilst the clauses to such contract have remained tightly sealed, Perez has repeatedly insisted that the contract signed between all founding clubs is a binding contract with provisions inserted for those who do not adhere to the respective clauses.

What we have all witnessed over the past weeks is that clubs are invaluable without their fans.

It still remains to be seen whether the ESL will actually manage to kick off on a football pitch or whether it will evaporate into thin air in due course.

Whichever way the plans of the ESL swing, governing bodies might nevertheless still decide to impose sanctions to deter any clubs from attempting to create similar breakaway leagues in the future or sanction those clubs who tried to breakaway.

Any sporting sanctions that might be issued as a form of punishment should nevertheless be seen as being proportionate, dissuasive, and reasonable.

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