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James Green and Stuart Sanders on the new UEFA guidelines for eligibility in international competitions

24.04.20

The ongoing COVID-19 pandemic has created uncertainty across the world of professional football for players, clubs and fans alike. Almost all domestic football leagues have been suspended for the past several weeks (save for holdout Belarus, which has continued to hold professional matches in front of fans). As the lockdowns in European countries have been extended, many have speculated about the possible need to cancel domestic seasons outright. However, a vexed question has remained about the effect any such cancellation might have on one of the most prestigious and lucrative elements of the sport: qualification for European competitions.

Most football fans will be familiar with the different number of Champions League qualification places offered to the various national football associations. Article 3.02 of the Regulations of the UEFA Champions League for the 2018-21 Cycle (“the Regulations”) provides that national associations will be represented in the competition by the “winner of the top domestic championship”, as well as the runner up, third- and fourth-placed clubs (as applicable). Article 4.01 of the Regulations further states that in order to be eligible to participate clubs must have qualified for the competition “on sporting merit,” with an identical provision appearing in the equivalent Europa League Regulations. The Regulations therefore give rise to the following question: if a domestic championship is prematurely cancelled, can it be said to have a winner, and would that winner have qualified on sporting merit?

At the beginning of April, UEFA was urging national associations to complete domestic leagues. A letter from Aleksander Ceferin, UEFA’s president, to Europe’s national associations, leagues and top-division clubs, said that a decision to abandon domestic competitions at that stage would be “premature and not justified”. The letter expressly reserved UEFA’s right to assess whether clubs from cancelled leagues would be entitled to participate in European competitions next season.

However, UEFA’s Executive Committee yesterday approved new Guidelines on eligibility for participation in its competitions. The Guidelines still urge national football associations to explore all possible options to play remaining domestic fixtures. In contrast to the earlier position, they acknowledge that this may not possible, particularly due to calendar issues. In that case, it would be “preferable” that suspended competitions are restarted in a different format that allows for qualification on sporting merit.

Most strikingly, the Guidelines set out the following legitimate reasons to prematurely terminate a domestic competition:

  • The existence of an official order prohibiting sports events so that the domestic competitions cannot be completed before a date that would make it possible to complete the current season in good time before the next season starts;
  • Insurmountable economic problems which make finishing the season impossible because it would put at risk the long-term financial stability of the domestic competition and/or clubs.

If a domestic competition is prematurely terminated for a legitimate reason, national associations are required to select clubs for the relevant UEFA competitions based on “objective, transparent and non-discriminatory principles”. However, UEFA has reserved the right to “refuse or evaluate” these selections, in particular where:

  • The domestic competitions have not been prematurely terminated based on the reasons given in these UEFA guidelines or on the basis of any other legitimate public health reasons;
  • The clubs were selected pursuant to a procedure which was not objective, transparent and non-discriminatory so that the selected clubs could not be considered as having been qualified on sporting merit; or
  • There is a public perception of unfairness in the qualification of the club.

Analysis

These Guidelines indicate a relaxation of UEFA’s previous hard-line approach. This is perhaps unsurprising given that earlier predictions of restarting play in June appear increasingly unlikely and optimistic.

However, the Guidelines as reported appear to have some significant points of ambiguity:

  • It is being widely reported that the Guidelines will likely apply to the Netherlands, where mass public gatherings have been banned until 1 September. However, an official order prohibiting sports events is not necessarily the same as an order prohibiting mass public gatherings. One can imagine that some countries might allow sport events to resume behind closed doors long before large scale gatherings are again permitted. It is unclear whether national associations will have to account for this possibility before they would have a “legitimate reason” to cancel the remainder of a domestic season.
  • The phrase “insurmountable economic problems” together with the emphasis on “long-term financial stability” suggests a high threshold will have to be crossed before financial concerns amount to a legitimate reason. The wording also suggests that it would need to be “impossible” to finish the season, rather than just costly or likely to incur losses.
  • There remains no clarity as to the mechanisms which may be adopted to decide club qualification in the event that seasons cannot be completed. Earlier this week, it had been reported that UEFA were telling national associations to determine such qualification using UEFA Coefficients, a ranking system for clubs and associations set out in Annex D of the Regulations, which ranks clubs based on performance in UEFA competitions over the previous five years. This report caused immediate controversy as it would have had the effect of disregarding current league performance in favour of previous strength. For example, under that system Arsenal (currently in 9th place in the Premier League) would have qualified for the Champions League, while Leicester (currently 3rd) would have missed out. That suggestion, if it was in fact made, appears to have been abandoned, with UEFA leaving it to national associations to decide, subject to UEFA oversight. In fact, the new guidelines may prohibit use of UEFA Coefficients, since, for example, the qualification of Arsenal on that basis could lead to a “public perception of unfairness.”
  • It is unclear exactly what would amount to a public perception of unfairness in the qualification of a club however. If a club’s selection already satisfies the separate criteria of being objective, transparent and non-discriminatory, it is difficult to know what this adds or how it could be assessed. Indeed, if read literally it could be opening Pandora’s Box – inviting disgruntled fans to try to create a basis for their club to challenge a disadvantageous decision.

Given the ambiguity above and the ongoing emphasis on completing the season, even by adopting a new format, many national associations may elect to wait a while longer before taking a final decision. However, the Guidelines have set out helpful parameters to guide member associations, and make clear the anticipated direction of travel.

 

 

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