*Written by Anisha Chatterjee
Introduction
On 18th April 2021, the football world was brought to a standstill with the announcement of the European Super League. 12 clubs from all over Europe, decided to make their own league separate from UEFA for better competition and a higher cut of profits. Protests came pouring in from all around the world, saying that football belonged to the fans, not the club owners, and within 72 hours, the idea was in shambles, and the clubs were releasing apologies to their fans.
Despite the Super League project being ‘over’, three of the founding clubs, namely Real Madrid CF, FC Barcelona and Juventus continue to work on the details, and reiterate that none of the clubs has actually ‘left’ as they all signed an agreement, and none of them has paid the fine for leaving. Majority of football fans continue to be against the Super League, but there are a few who have emerged in support of it. As we analyse further, we cannot help but think that Florentino Perez was right all along and that ESL is the future of football, with freedom, better financial fair play, solidarity, more money, respect for the fans, and respect for the national competitions.
The ESL proposal
“This greedy and callous move would spell disaster for our grassroots, for women’s football, and the wider football community only to serve self-interested owners, who stopped caring about their fans long ago, and complete disregard for sporting merit. Tragic” [1].
— Luis Figo
While initially the ESL format seemed like a desperate last-ditch attempt to get a greater cut of the profits, recent events have shown otherwise. One of the major reasons why ESL must come into power is to cancel the monopoly UEFA has over the European clubs. Time and again we have seen UEFA’s blatant favouritism and terrible decision making, whether it comes to Financial Fair Play rules, or banning Ajax goalkeeper Andre Onana for making a mistake and taking his wife’s medicine. The more recent examples include not penalizing the VAR team who were in charge of the Euro 2020 semi-final between Denmark and England.
When ESL was announced, UEFA, and multiple other organizations got together and collectively said that it was against the law, and they were not wrong. Article 49 (3) of the UEFA statutes states that:
“International matches, competitions or tournaments which are not organised by UEFA but are played on UEFA’s territory shall require the prior approval of FIFA and/or UEFA and/or the relevant Member Associations in accordance with the FIFA Regulations Governing International Matches and any additional implementing rules adopted by the UEFA Executive Committee” [2].
UEFA were also worried that a lot of sensitive information that is not available to the public could be leaked. Andrea Agnelli, the chairman of Juventus, was also chairman of the European Club Association, which represents the interests of clubs in UEFA. He is one of the people who continues to support the Super League, and he resigned on the day the ESL was announced. It is clear that UEFA had to take action for breach of confidentiality as the ESL would get an unfair advantage over other competitions if they got hold of any such confidential information.
However, the founding clubs insisted that they had not broken any rules, and 2 days later, in Madrid, the ESL got a positive preliminary ruling in the commercial court, which granted them a temporary injunction, and prevented all other bodies from disbanding the ESL through threats, which was precisely what UEFA trying to do. The injunction stated that no club or player who joined the ESL could be prevented from participating in any club or international competitions like the World Cup, the Euro Cup or the Champions League.
The ESL deals with a plethora of different issues, including sports law, contract law, international law, competition law, and the separate laws of the Spanish, Italian and English football associations, not to mention the bylaws of UEFA as well, which makes it difficult to provide a proper legal analysis. The bodies that have the jurisdiction to deal with this are the European Commission and the Independent Court of Arbitration for Sport (CAS).
The ruling most commonly referred to with regard to the ESL is the International Skating Union decision of the EGC. In this case, the Court dealt with a rule that prevented Skaters under ISU to take part in competitions not organised by the ISU. Anyone who violated these rules would be subject to severe sanctions, which went up to lifetime bans. These penalties were classified as unreasonable by the court. Moreover, they hamper the development of other speed skating competitions, which inevitably harm the growth of the sport [3].
However, this decision was based on the fact that professional ice skaters do not earn a fraction of the money that professional footballers do. Therefore, the skaters need to participate in economically profitable competitions outside the ISU to make a living. Thus, although the case is very similar, it is understandable that the financial situation of the athletes under ISU and UEFA is not.
FIBA, or the International Basketball Association had also made a similar rule, stating that if any athlete participated in a competition not organised by FIBA, the athlete could be excluded from the national team. The court considered this as an abuse of FIBA’s dominant position. The Regional Court in Frankfurt ruled, that if international teams had to renounce their criteria of a selection based on sporting performance because FIBA had banned their athletes then it is an abuse of power. The ban of players is also in violation of competition law.
So, it can be assumed that UEFA threatening to ban players from playing in particular competitions would be in violation of competition law, and would also highlight the monopoly of UEFA, which is what the Super League is trying to break. Currently, UEFA is the sole organiser of the three current European club competitions – the Champions League, the Europa League and the Conference League. The ESL would have been a new entry for European club competition and would be competing against the UCL. This development raises questions as to the possibility of breakaway leagues.
Conclusion
The ESL highlights the relevance of the European sporting model and EU law. Art. 165 of the Treaty of the Functioning of the European Union (TFEU) says that EU action shall be aimed at “developing the European dimension in sport, by promoting fairness and openness in sporting competitions”. This supports the model of the ESL.
A week after ESL had been announced, UEFA president Aleksander Čeferin had said that ‘Real Madrid, Barcelona and Juventus will receive the harshest punishments. They’re flat-Earthers who still believe the Super League exists. They are the teams who are most under threat of expulsion from next season’s UCL’ [4]. But not only are all three clubs playing the competition, but as of 28th September 2021, UEFA has also released a statement saying, ‘Following stay of proceedings against Barça, Juventus and Real Madrid, in the matter related to violation of UEFA’s legal framework with Super League, UEFA Appeals Body declared today the proceedings NULL & void, as if the proceedings had never been opened [5]’. However, on 21st April, 2022, a new judge in the Madrid court lifted the injunction, allowing UEFA to punish the 3 clubs. The clubs have the right to appeal the decision but no movement has been reported yet.
On the other hand, UEFA recently announced the new format of the Champions League, eligible from the 2024/25 season. Along with changes in the group stages, it has given 2 extra sports to teams who have performed well in the past but failed to qualify for the UCL. This move clearly shows that UEFA are letting teams enter the premier club competition even in the absence of merit, even though when the Super League tried to do the same they were met with cries of ‘destroying football’.
The Super League is not in violation of any laws. Any sanction that UEFA would try to impose on the clubs would be questionable under EU Law. While the Super League is momentarily on pause, only time will tell us if they will be able to establish it before the other governing bodies enact a legislation against breakaway competitions.
* The author is a law scholar at IFIM Law School, Bangalore, India.
(The image used here is for representational purposes only)
References
[1] Current and former footballers oppose the European Super League https://www.marca.com/en/football/international-football/2021/04/19/607db24946163fa23b8b45e4.html
[2] UEFA Statutes https://www.uefa.com/MultimediaFiles/Download/uefaorg/General/02/56/20/45/2562045_DOWNLOAD.pdf
[3] Super League Issues under EU Competition Law http://competitionlawblog.kluwercompetitionlaw.com/2021/04/22/the-super-league-and-its-related-issues-under-eu-competition-law/
[4] UEFA President continues criticizing and ridiculing the clubs who signed up for the Super League https://www.marca.com/en/football/2021/04/25/60853cf8268e3e39478b45e1.html
[5] UEFA have nullified legal action against breakaway Super League Clubs https://www.espn.in/football/uefa-champions-league/story/4485318/super-league-rebels-real-madridbarcelonajuventus-wont-see-uefa-action