In our recent video of the top sports law cases of the year, I chose the judgment by the ECJ in the so-called Super League case as my sports case highlight. Of course, when the video went out, the judgment had not been handed down. It was handed down just this morning and it makes for fascinating reading.
The case was about UEFA’s rules requiring mandatory authorisation before a football competition could take place in Europe something the Super League – no doubt rightly – assumed it would not get. They brought a claim in the Spanish courts saying that those rules were contrary to EU competition law.
Months went by and after a hearing in July 2021, the Advocate General agreed with UEFA (and a long list of EFTA member states) that UEFA’s rules were not contrary to EU competition law.
Now the judgment: the ECJ has blown all of that out the water. The 15-judge grand chamber has found that UEFA and FIFA are abusing a dominant position in purporting to set conditions to how potential rival tournaments may enter what is, fundamentally, a private market. Any such gatekeeper must, the Court has rules, be subject to a criterion of being “transparent, objective, non-discriminatory and proportionate”.
This is huge news: the Advocate General’s opinion had arrived at the same position as many sports commentators (and indeed many of us in the world of sports law) that that old workhorse “the specificity of sport” would allow the sports “authorities” a special position in the competition law context. Not so. The ECJ has reminded us, with a no doubt very substantial aftermath to follow, that, at least from a competition law perspective, sports are simply “economic activities”.
The ruling is not a green light for the Super League – far from it – although the Spanish litigation will now presumably take its course. The really fascinating question is the extent to which sport, at least in Europe, can move away from an institutional model with entities like FIFA and UEFA – not without their PR challenges – at its heart, to a more free market model.
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