European Super League: Brexit means UK doesn’t need to follow ECJ ruling
On Thursday the European Court of Justice (ECJ) ruled on a case relating to Uefa, Fifa and the European Super League (ESL).
The judgment stated that rules used to prevent the breakaway were unlawful and anti competition.
Morning Wire have spoken to a number of lawyers who have offered their reaction to the ECJ judgment.
Brexit means UK not obliged to listen
Jade-Alexandra Fearns, partner at Paul Hastings:
“Today’s verdict from the ECJ is a watershed moment for the future of inter-club football projects. The ruling essentially finds that FIFA and UEFA have abused their dominant position by blocking the creation of the European Super League and sanctioning the clubs involved, completely contrary to EU competition law.
“Today’s ruling clearly states that this is unlawful, and will beg further questions in the future as the all encompassing roles of FIFA and UEFA. They play all major roles – governing body, regulator, commercial operator as well as having sanctioning powers for any breaches, and it has allowed them to act as judge, jury and executioner.
“The verdict also finds that UEFA and FIFA rules relating to the exploitation of media rights are such as to be harmful by European clubs, companies operating in media markets, and TV viewers, by preventing them from enjoying new and innovative competitors.
“Ultimately, it’s a huge day for those behind the Super League, and paves the way for those who may want to set up competing tournaments in the future. However, it’s important to keep in mind that this judgment does not necessarily equal smooth sailing for the Super League, as many individual Premier League and national clubs have had their charters amended since 2021 to prohibit involvement in such competitions.
“Following Brexit, the UK is also not obliged to follow the ruling, and could still feasibly prevent Premier League clubs from joining the Super League.”
Ramifications for golf and boxing?
Stephen Taylor Heath, co-head of sports law at JMW Solicitors:
“Although the ruling relates to regulations that were in place when the original European Super League emerged, the competition’s plans are significantly revamped and are now more similar to the new format for European competitions which UEFA may have implemented in anticipation.
“The ‘closed shop’ aspect has been mitigated which had been the main criticism regarding its effect on the football pyramid.
“While it is difficult for the Premier League and other domestic leagues to seek to prevent participation, it would require collaboration with the leagues in terms of qualification and fixtures if eligibility was based on domestic performance, otherwise clubs may have to choose which European competition to enter.
“This ruling has ramifications for other sports too, such as the current situation in golf with LIV, PGA and the European Tour and perhaps boxing where the governing bodies are self-appointed, although this is a European Law decision.
“That would be relevant to the application of any domestic legislation in England such as the new Football Governance Bill and is similar to the situation of the FIFA Agent regulations where you could have different legal parameters in different jurisdictions.”
No surprises here
Yasin Patel, leading sports barrister at Church Court Chambers:
“The ECJ’s ruling is not a surprise to those closely following the case as it highlighted the obvious: that UEFA and FIFA’s rules on the establishment of new competitions were not ‘transparent, objective, non-discriminatory and proportionate.’
“It does not, however, necessarily mean the Super League breakaway is back on the board.
“Round two of this battle will begin. The Super League will start its charm offensive, open itself up to even more clubs and offer more money.
“The various leagues in Europe will offer more money, as will UEFA, but will also remind clubs burned previously that any repeat of 2021 and the consequences could be more far reaching. The roller-coaster ride that this is will have more ups and downs for the next few years.”
Challenge power
André Pretorius, Partner at Herbert Smith Freehills:
“If there remains any doubt that sports governance is susceptible to detailed competition law scrutiny, this has been comprehensively removed. But importantly – as the court notes – this does not mean that those regulatory powers have been removed and competitions such as the Super League must be allowed to proceed. Instead the court is telling sporting bodies they need to have better rules and processes that are transparent, fair and objective for sanctioning new competitions.
“In recent decades sport has professionalised enormously and the business of sport has grown exponentially in the UK and Europe. The ESL decision suggests that the governance frameworks for some sports may not have kept pace with these developments. The court notes that this is likely to have negatively impacted clubs, sporting competitors and fans by preventing the emergence of new and innovative competitions.
“This judgment is not binding in the UK, but similar questions are being addressed in the UK, most recently in the arbitration in respect of FIFA’s Football Agents Regulations. In that ruling, the tribunal referred extensively to the EU precedents that underpin today’s ECJ judgments.”