European Super League: Will ECJ resurrect breakaway or prove final nail in its coffin?
Abandoned by most of its supporters in the face of widespread outcry, tied up in red tape, and then undermined by the financial problems of its remaining backers, the European Super League has never looked more dead.
But the controversial breakaway football competition could be dramatically resurrected on Thursday when an advocate general delivers their recommendation in a landmark legal case at the European Court of Justice.
If they side with the three rebel clubs – Real Madrid, Barcelona and Juventus – and the ECJ rubber-stamps their opinion in the coming weeks, it could fracture the sport and make a European Super League “just a matter of time”, says lawyer Darren Bailey.
Should the advocate general support the position of football’s governing bodies Uefa and Fifa, however, regulatory expert Bailey believes it could prove “the final nail in the coffin” of the breakaway attempt – at least for the time being and in its current guise.
When the so-called “dirty dozen” clubs dropped the bombshell that they had signed up to establish a European Super League in April last year, Uefa threw the book at them. As well as issuing multi-million-pound fines, they warned – with Fifa’s backing – that any players taking part in the unauthorised competition would be banned from the World Cup.
The key question for the ECJ is whether those sanctions are proportionate to Uefa’s aims of protecting European football more widely. The rebel clubs argue that they are not, and furthermore that there is a conflict of interests in Uefa’s dual role as regulator and promoter of competitions such as the Champions League.
There are other aspects to consider, however. Academics from the London School of Economics argued in a blog last week that, while Uefa’s actions might distort the market for competition organisers, a European Super League would distort club competition at a national level, and that this should take precedence as it would raise ticket prices for consumers.
And the advocate general has wondered aloud why the rebel clubs do not simply break away anyway – what Bailey, a consultant at law firm Charles Russell Speechlys, calls “the cake and eat it argument”. He added: “I think the brutal reality is that they can’t go at the moment because they can’t survive without their Champions League money.”
There are political factors, too. The European Commission and Uefa have a formal cooperation agreement and the former broadly supports the latter and its governance model. “That shouldn’t impact an ECJ judgement but to find that it [Uefa’s action] was unlawful would seem odd,” said Jade-Alexandra Fearns, a partner and antitrust specialist at law firm Paul Hastings.
Other cases are intertwined, too. The advocate general’s opinion is also due in an appeal from the International Skating Union against a ruling that it violated competition laws by sanctioning skaters who took part in unapproved competitions. While football’s ecosystem is different, it is expected that the principles of both verdicts will align.
In the long term, another case may prove of greater significance. Football team Swift Hesperange, of Luxembourg’s top division, has argued that the Uefa rules which prevent the formation of a cross-border Benelux league are inhibiting their growth. Although much smaller fry, they are bringing similar arguments to the European Super League clubs.
While not obliged to follow the advocate general’s recommendation, the ECJ typically does. There is no timeline for its decision, but it is not expected until next year. “It will provide a very, very useful insight into where we expect the court to land,” said Fearns. It will then be sent back to the Spanish court where the clubs raised their complaint.
“My instinct is that Uefa and Fifa will probably hold sway for the moment,” said Bailey. “I think the decision will be highly influential. It will determine whether the regulator or regulated community have the balance of power on competition. I think a lot of sports will be looking quite closely.”
Defeat for the rebels would just be the latest setback to the three European Super League clubs. Barcelona have had to sell off shares in future income in an attempt to remain competitive in Spain and beyond, while the whole Juventus board, including key breakaway agitator Andrea Agnelli, resigned last month amid a financial investigation.
“It is going to be a very interesting development this week. Will it be the downfall of Uefa? I don’t expect so,” said Fearns. But she added: “I don’t expect this [European Super League] to go away. And I don’t expect the case law before the European courts with respect to sport and sport governance to go away.”
Even if the advocate general ultimately backs Uefa, he might recommend that the rules are made more transparent and structures more democratic. If it goes the other way, the European Super League is likely to have to incorporate promotion and relegation to win ECJ approval. Whatever happens, then, both parties may have to budge a little.
If the rebel clubs lose this battle, it could be that humble Swift Hesperange have more chance of forcing change, just as little-known journeyman footballer Jean-Marc Bosman’s legal challenge to football’s transfer rules changed the game in the mid-1990s.
“Small cases like Bosman, brought before the European courts, can have major consequences,” said Fearns. “I think it’s possible those smaller clubs’ arguments, which are really rooted in proportionality and fairness, are more likely to move the needle than the ESL’s position.”