Eyes on the Ball. The Super-League Litigation before the CJEU

Senior Consultant Damien Neven recently authored a paper alongside Petros Mavroidis discussing the opinions of Advocate General Rantos on the questions submitted to the Court of Justice in a request for a preliminary ruling by a Spanish Court in the context of a litigation between UEFA and the European Super-League Corporation.

Abstract

The Court of Justice of the European Union (CJEU) was requested to consider whether the Union of European Football Associations (UEFA), which (according to the Court) has “conferred on itself the exclusive power to organize pan-European competitions” between football clubs, could exclude clubs wishing to participate in a rival competition without infringing competition rules, in particular in the absence of a proper authorization procedure to assess such potential participations. The questions were raised In the context of a recent litigation (C-333/21) involving the attempt to organize a rival competition by the European Sport League Corporation (ESLC).

This paper considers the opinion put forward by Advocate General (AG) Rantos on the questions before the Court, focusing on two of his main findings, which, in our view raise significant issueswith a potentially systemic dimension going well beyond the facts of this case. The AG first finds that UEFA regulation which sets out the exclusive right does not involve a restriction of competition by object because (inter alia) one cannot take it for granted that UEFA would exclude competitors in a way that is anti-competitive and because the regulation could be seen as merely involving a prohibition of dual memberships. We doubt that these considerations can challenge the strong premise (from economic principles), that a monopolist that has conferred on itself the power to vet entrants will have the ability and incentive to reduce competition. From this perspective, the agreement “reveals by itself a significant degree of harm” and hence is best seen as involving a restriction by object. Adopting the view of the AG would reduce the scope of restrictions by object, challenging the notion that restrictions by object are those for which there is such a strong prior of harm that a detailed examination of effects is not necessary. Second, the AG also finds that the exclusion of a rival competition can be seen as pursing the legitimate objective of supporting the European Sport Model (ESM), in the light of Art 165 of the Treaty (TFEU) which refers to the support of the European dimension of sport, so that it does not involve a restriction of competition under Art 101. We argue that there is limited ground within the realm of Art 165 on which the promotion of the European Sport Model could be qualified as a legitimate public policy objective that could trump competition concern (as well as an apparent disagreement with AG Rantos and AG Szpunar on the significance of Art 165). We also find that the AG analysis of whether the restriction of entry is necessary to pursue the objective (let alone proportionate) remains at a very general level, whereas a detailed analysis of facts, including the precise organization of ESLC, is required. Allowing a legitimate objective to overrule competition concerns on the basis of such limited ground and analysis might set a precedent leading to a potential weakening of the discipline towards anti-competitive agreements.

Introduction

The objective of this paper is to discuss the opinion of AG Rantos on the questions submitted to the Court of Justice in a request for a preliminary ruling by a Spanish Court in the context of a litigation between UEFA and the European Super-League Corporation (ESLC).

UEFA is an association of national football federations, which, by regulatory fiat, has the monopoly of organizing football competitions between clubs belonging to national federations. Any party wishing to organize a pan-European competition must, according to the UEFA statute, request the approval of UEFA first but the UEFA statute does not provide any guidance on the criteria for the assessments of such requests.

ESLC is a business entity (incorporated under Spanish law), that has developed in 2021, at the initiative of its fifteen founding football clubs, a blue print for an independent pan European competition, known as the “Super-League” project.

Read the full article here

This paper was originally published for the Social Science Research Network here. The views expressed are those of the authors only and do not necessarily represent the views of Compass Lexecon, its management, its subsidiaries, its affiliates, its employees, or clients.

Damien Neven, Petros Mavroidis, Eyes on the Ball. The Super-League Litigation before the CJEU (2023),https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4461465