Quo vadis, sports federations? The premonition of change as a consequence of competition law judgments

Abstract

1. INTRODUCTION

Late December of 2023 came with three sports-related judgments of the Court of Justice (‘CoJ’).¹ Since then, more than one year has passed. The decisions have undoubtedly given new impetus to explore the relationship between competition law and the sports sector. Beyond that, the cases have general relevance not only for competition law, but also sports law.² In the area of competition law, it has been suggested, for example, that the judgments were about digital markets, in particular because of its holdings as regards abuse of dominance.³ The football saga continued also in October 2024 with the Diarra judgment.⁴ The case of football agents is also pending before the CoJ.⁵ The latter two, however, do not fall under the scope of this article.

The reception of the outcome of the 2023 cases, which I analyse here, was not homogeneous. Some welcome the results. For example, Maduro argues that the SuperLeague judgment has created the necessary conditions for the more accountable functioning of sports organizations.⁶  Lindholm concludes that the decisions provide important clarifications on the way private regulators are required to function when it comes to good governance.⁷ In a positive tone, Villanueva is of the opinion that the special characteristics of the sports sector are given appropriate and nuanced consideration from the viewpoint of competition law.⁸ Outside the competition law terrain, the same is found by García, who also adds that the CoJ was highly critical of sports governing bodies as regards their accountability mechanisms.⁹ Analysing the judgments’ effect on employment relations, O’Leary sees a more limited contribution.¹⁰  Weatherill also opines that the changes generated by the judgments will not be radical concerning the structure of EU sports law.¹¹

This contribution joins with the latter group of scholars who take a more critical attitude. It does so both by looking at the competition law interpretation of the cases as well as the actual impacts and consequences of the judgments.

The article is, first, concerned with some not-yet-articulated competition law aspects of the judgments, and, second, with the actual impact of the decisions on the statutes of the related sports governing bodies. The article has two objectives. On the one hand, as regards the SuperLeague and ISU decisions, it aims to provide a third way of legal interpretation that could have meant a compromised solution between the sports federations-friendly analysis of Advocate General Rantos and the much more stringent line of thinking of the CoJ. On the other hand, it seeks to explore whether, and to what extent, these two judgments have generated changes in the functioning of the sports governing bodies.

It is novel in my analysis that I also take a look at the statutes in force of the sports federations that were subject to the court proceedings, and propose some solutions to comply with the decisions. Furthermore, I give additional stances about the assessment of Article 165 TFEU, and I attempt to shed more light on the differences between the approach of Advocate General Rantos and that of the CoJ in order that I could propose a third way of legal interpretation more in balance both with the critical and the permissive voices about the functioning of the sports governing bodies.

Two of the judgments, the SuperLeague¹² and ISU¹³ decisions, are given more emphasis in the article, while the third, the Royal Antwerp case,¹⁴ is given less attention due to its higher importance to the free movement of workers. It is important to note that while the SuperLeague and Royal Antwerp judgments were delivered in the context of a preliminary ruling procedure, the ISU decision was the result of a complaint lodged by two speed skaters with the Commission, which was then referred to the CoJ, the highest EU judicial forum, following judicial review by the General Court.

A further common feature of two cases among the three is that they concern the world of football, while the ISU decision, as is clear from the identity of the complainants, has stirred up (or broken the ice in) the sport of speed skating, synchronized skating and figure skating. The competition implications of the cases, however, are not limited to these two sports, but can rather be seen as relevant for all sports federations.

The article proceeds in three main sections. In the next one, I deal with the analysis from the viewpoint of Article 101 TFEU. After that, I turn my attention to the developments induced by the judgments taken place as regards Article 102. Subsequently, I examine the statutes in force of the sports federations whether there are any changes as a consequence of the three judgments. In the end, I conclude and formulate some proposals.

Before continuing with my analysis, a few remarks are worth making as to the facts of the cases to contextualize my reasoning. In the SuperLeague case, those rules and regulations constituted the main subject of inquiry which allowed the two football federations, FIFA and UEFA, to operate a mechanism based on their prior approval of other leagues and tournaments. Pursuant to the statutes adopted by FIFA, confederations, such as the UEFA, shall ensure that international leagues or any other such groups of clubs or leagues shall not be formed without its consent and the approval of FIFA.¹⁵ UEFA has sole jurisdiction to organize or abolish international competitions in Europe in which Member Associations and/or their clubs participate.¹⁶ This monopoly,¹⁷ as put by AG Rantos, was aimed to get contested by the idea of the European SuperLeague initiated by the company under the same name. The founding members’ publicly communicated objective was to establish a competition that rivals the UEFA Champions League.¹⁸ UEFA president Aleksander Ceferin did not hesitate to respond in a harsh manner: ‘I cannot stress more strongly at this moment: UEFA and the footballing world stand united against the disgraceful, self-serving proposal we have seen in the last 24 hours from a select few clubs in Europe that are fuelled purely by greed.’¹⁹ FIFA president Gianni Infantino was no less hard on the teams having planned to take part in the breakaway competition. He made it clear that anyone participating in the SuperLeague would not be allowed to take part in FIFA and UEFA tournaments.²⁰ After it had been clarified that FIFA and UEFA would not authorize the new competition, as well as the participating teams and players would be excluded from the competitions operated by the UEFA, the Commercial Court of Madrid submitted a request for preliminary ruling whether the prior approval system of the football federations are in line with EU competition law.

Though the ISU judgment did not derive from a request for a preliminary ruling, the situation was somewhat similar. In this, the International Skating Union’s Eligibility Rules was put under scrutiny, because skaters had to face significant sanctions if they wished to participate in skating events unauthorized by the ISU itself or one of its members. The legal consequences for skating in unauthorized competitions varied widely: ‘from a warning to periods of ineligibility from an unspecified minimum to a maximum of a lifetime ban’.²¹

In another preliminary ruling case, in Royal Antwerp, the question revolved around the rule that—pursuant to UEFA requirements—clubs registered for one of the UEFA competitions must include a minimum number of eight home-grown players in a list of maximum 25 players. Out of those eight players, at least four must have been trained by the club in question. The Royal Belgian Football Association has similar rules, and, furthermore, it is required in match sheets that clubs must include at least six players who have been affiliated for at least three full seasons before their 23rd birthday, two of which before their 21st birthday.²² The question posed by the requesting Tribunal de première instance francophone de Bruxelles was whether Article 101 TFEU precluded such provisions adopted by the respective football association and federation.

After these introductory remarks, I now turn my attention to the substantial analysis.

2. A POSSIBLE THIRD WAY BETWEEN THE COJ AND AG RANTOS

From the perspective of anti-competitive agreements, in SuperLeague an unambiguous difference arose between AG Rantos and the CoJ. The roots of the distinct paths taken by them came from the divergent assessment of three legal questions.

First, AG Rantos puts much greater emphasis on Article 165 TFEU than the CoJ. Simply put, he considers sports policy as a public policy that—during the last decades and with the adoption of the Lisbon Treaty—has been recognized as of constitutional importance in the European Union. He suggests that a European sports model exists based on the ‘constiutional provision’ enshrined in Article 165 TFEU. The insertion of this provision into the TFEU was the last stage of a development trajectory that had been launched after the Bosman judgment.²³ On the contrary, as formulated by Weatherill, ‘Article 165 TFEU has been moved to the sidelines’ by the CoJ.²⁴ The approach taken by AG Rantos was significantly softened by the CoJ, which took a viewpoint concentrating on the competence-sharing rules between the EU and its Member States: that is to say, ‘Article 165 TFEU must be construed in the light of Article 6(e) TFEU’, bearing in mind that ‘the drafters of the Treaties intended to confer a supporting competence on the Union, allowing it to pursue not a “policy”, as provided for by other provisions of the TFEU, but an “action” in a number of specific areas, including sport.’²⁵

This reasoning in connection with the extent of EU competences in certain areas has been complemented by the CoJ with a kind of interpretatio systematica in the context of the TFEU. Taking into consideration that the issue of sport is codified in Part Three of the Treaty (Union policies and internal actions) and not in Part One’s Title II (Provisions having general application), Article 165 TFEU is not ‘a cross-cutting provision having general application’.²⁶

Both of these differing approaches towards Article 165 TFEU had significant impact on the interpretation of legitimate objectives within the context of the Meca-Medina test, and determined to a high extent the outcome of the test. In my opinion, however, none of the two viewpoints is fully acceptable. As put by Monti, Rantos ‘interpreted Article 165 TFEU too widely’, while the CoJ ‘poorly’ without explaining the terms used, such as the cross-sectional clause.²⁷ Monti argues that the CoJ’s standpoint is based on the distinction between, on one hand, areas, such as sport, whose objectives may be taken into account in the competition analysis, and, on the other hand, cross-sectional policies, such as environmental protection, that must be integrated into the assessment. He is of the opinion that the one and only ‘logical meaning’ of integration is that ‘cross-sectional clauses must transform the meaning of competition’. As a result, the integration (instead of only the taking into account) of Article 165 TFEU would have meant in the CoJ’s line of thinking, which the CoJ wanted to clearly avoid, that competition-restricting agreements that ‘improve the social and educational effects of sport’ would not violate EU competition law.²⁸

Agreeing with Monti’s analysis and giving further considerations to his reasoning with additional aspects, in my opinion, on the one hand, AG Rantos over-emphasizes the significance of the provision; on the other hand, the CoJ’s analysis—sacrificed at the altar of being able to under-emphasize it—is mistaken. Obviously, there exists no such a coherent European sports policy as is advocated by AG Rantos, which could elevate the area of sports to the ‘constitutional’ level of the EU. Nevertheless, the relationship between competition policy and another public policy is not at all determined by the competence-sharing rules and/or the location of the public policy within the TFEU.

It seems like that the CoJ aims to explain a normative decision with procedural-type arguments. To give a further example for the irrelevance of the place of provisions and that of the way of competence-sharing, it is enough to think of the relationship between competition policy and the agricultural sector. The fact that agricultural policy objectives to be realized by the EU are not codified among the provisions having general application, as well as that the area of agriculture is subject to shared competence between the EU and the Member States do not say anything about the relationship between competition policy and the agricultural sector. Pursuant to Article 42 TFEU, agricultural policy objectives are given preference over competition rules, that has been several times strengthened in EU courts’ case law.²⁹ Of course, as regards the sports sector, there is no clearly determined privilege formulated expressis verbis by the TFEU, unlike in the case of agriculture. However, it is unequivocal that the location of agricultural policy within the TFEU and the way of competence-sharing as regards agriculture have no impact on the fact that a normative decision preferring agricultural policy objectives to competition rules has been made long ago by the EU. Moreover, Article 42 TFEU does not speak about integrating the objectives of agricultural policy into competition rules, but the need to take into account them. Still, the use of a softened terminology (‘taking into account’) does not prevent the derogation of competition rules by agricultural policy objectives, irrespective of the fact that the later cannot be considered cross-cutting provisions having general application.

Second, AG Rantos does not deem the mechanism of prior approval without the detailed rules on exercising that approval a by-object restriction of competition, unlike the CoJ. As argued by AG Rantos, ‘[e]ven if the prior approval scheme established by UEFA is not governed by a procedure subject to approval criteria that are clearly defined, transparent, non-discriminatory and reviewable, within the meaning of the case-law of the Court deriving from the judgments in MOTOE and in OTOC, as the referring court seems to suggest, it is clear from that case-law that the lack of such criteria cannot automatically entail classification as a “restriction of competition by object” but rather constitutes an indication of restrictive effects which must, however, be confirmed on the basis of an in-depth analysis.’³⁰ In the opinion of Rantos, the key in assessing the prior approval mechanism and its related sanctions should lie in treating them as the means to avoid dual membership (or free riding),³¹ which type of measures ‘do not have the object of restricting competition according to the case-law of the Court’.³² That the objective of preventing dual membership through an ex ante control mechanism for the sake of ‘ensur[ing] the coordination and the compatibility of football match and competition calendars in Europe’ is treated by him as purely sporting³³ in nature comes from the fact that he looks at sports as a general public policy, and not only an action enjoying supportive competence from the EU.³⁴

On the contrary, after carrying out its assessment whether the content, context and objectives of the provisions imply a sufficient degree of harm to competition, the CoJ declared that the prior approval scheme of FIFA and UEFA, in case of non-compliance with it on pain of sanctions, is conferred on these entities ‘as part of their pursuit of an economic activity’. The rules in question, by their nature, ‘restrict the creation and marketing of alternative or new competitions in terms of their format or content’.³⁵ The CoJ gives significant importance to the lack of subjecting these powers to ‘restrictions, obligations and review suitable for ensuring that it is transparent, objective, precise and non-discriminatory’. Without these, says the CoJ, the anti-competitive object is inherent in the prior approval mechanism.³⁶ That is to say, a prior approval mechanism with sanctions in case the scheme is violated is anti-competitive by object when it does not operate with a framework based on ‘substantive criteria or detailed procedural rules suitable for ensuring that they are transparent, objective, precise, non-discriminatory and proportionate’.³⁷

This second difference between the assessment of the provisions by AG Rantos and the CoJ has, of course, further repercussions to proceed with their respective analysis. The classification of the provisions as a by-effect restriction by AG Rantos and as a by-object restriction by the CoJ leads to the distinct way they apply the Meca-Medina test to the FIFA and UEFA rules.

Starting now with the CoJ’s approach, which is more straight-forward in this regard, it has been declared explicitly for the first time ever that the Meca-Medina ‘escape route’³⁸ can only apply to conducts that do not qualify as by-object restrictions. According to the CoJ, implicitly this has always been the case.³⁹

The literature is not consistent on this point. For example, Zelger sees this development as being in accordance with earlier cases about rules of regulatory nature,⁴⁰ primarily citing Ibáñez Colomo who—referring to the analysis in Generics⁴¹ – finds that if an agreement ‘has no plausible purpose other than the restriction of competition’, it amounts to a by-object restriction.⁴² The problem of invoking this argument here is that it does not justify why a by-object restriction cannot be exempted by the Meca-Medina test. Ibáñez Colomo’s argument is completely valid in the context in which he has used: whether a conduct is a by-object restriction, or not. However, the application of this finding to justify the impossibility of using the Meca-Medina test to by-object restrictions is not answered by it. Whether the Meca-Medina test can apply to both by-object and by-effect restrictions, or only to the latter, should not be confluenced with that stage of the analysis in which the classification of the conduct as by-object or by-effect is at stake. This ‘confluence’ can be seen in certain parts of the General Court’s ISU decision, as well.⁴³ As put by the CoJ, ‘the General Court committed additional errors of law consisting, in essence, of “merging” those two separate questions.’⁴⁴ Although this ‘joint examination’ of whether the restriction in question is by-object in nature and whether the requirements of the Meca-Medina test are fulfilled by that restriction is recognized in the CoJ’s decision, according to the CoJ, it has ‘no bearing on the merits of the reasoning’.⁴⁵ However, it must be noted that the CoJ did not consider this confluence problematic, because, first, it also found a by-object restriction (similarly to the General Court)⁴⁶ and, second, declared for the first time in its case law that the Meca-Medina test cannot apply to by-object restrictions.

The other standpoint in literature is represented by, for example, Monti. In his view, ‘[t]here is no precedent to support [the inapplicability of the Meca-Medina test to by-object restrictions] and the position is illogical.’⁴⁷ The Meca-Medina test cannot be excluded ex ante ‘because it is a restriction by object—the analytical framework works the other way around’.⁴⁸ Zglinski calls the CoJ’s argument that this finding had always been implicit in its case law ‘a half-hearted attempt’ to cover a major direction change in case law.⁴⁹ Weatherill traces back the problems arising from this limitation of the Meca-Medina test to the ambiguity in case law when a restriction can be classified as by-object in nature by the EU courts. Now, governing bodies have to face a higher level of uncertainty whether—with certain practices—they can pursue their legitimate interests in the sector they govern.⁵⁰ With this, the special characteristics of sports were subsumed by competition law orthodoxy.⁵¹

The Diarra judgment added some further questionable considerations to the limitation of the Meca-Medina test to by-effect infringements, and it seems that what the CoJ had criticized in the General Court’s ISU decision (see above) was committed by the CoJ itself. When analysing the possibility of a conduct not to come within the scope of Article 101(1) TFEU, it conflated the legitimacy of objectives with the object/effects analysis. First, it brought the examination of the economic and legal context, which is a characteristic of a by-object analysis, into the Meca-Medina test, and went further to say about the first step of the test (whether the objectives are legitimate) that the justification can only stand if the legitimate objectives in the public interest are not ‘per se anti-competitive in nature’.⁵²  Per se anti-competitive objectives that are legitimate? This is, in and of itself, a contradictory holding to frame the nature of the legitimate (sic!) objectives with being anti-competitive. Moreover, even after mentioning ‘anti-competitive’ within the Meca-Medina test, the CoJ goes on to say about the clarification first elaborated in SuperLeague that this case law does not apply to a conduct that ‘has as its very ‘object’ the prevention, restriction or distortion of competition.’⁵³ Why examine, and is relevant, the per se anti-competitive nature of an objective (or even a conduct) within the Meca-Medina test, if once again it is under consideration within the object/effects analysis? Anyway, if the test can apply only to by-effect infringements, the order should be changed after all. One should predetermine whether the conduct is of by-object or by-effect nature in order to decide whether the test can apply at all. So, the Diarra judgment does not seem to dispel the doubts whether the limitation of the test was reasonable. Rather, it complicates the situation.

After presenting these differing viewpoints to assess the provisions in question, I propose a third route here in order to find the middle ground between the approach taken by AG Rantos and by the CoJ.

Agreeing with the CoJ’s approach, the relevant provisions in the FIFA and UEFA statutes without detailed rules to ensure a transparent, objective, precise and non-discriminatory scheme of prior approval are anti-competitive by their very nature, that is, they are by-object restrictions. Nevertheless, disagreeing with the CoJ, the applicability of the Meca-Medina exemption should not have been limited to by-effect restrictions of competition. After classifying the provisions as by-object, the CoJ should have carried out the Meca-Medina test in a fully separate stage respecting each and every step that is existent in the case law: first, whether the objectives pursued by FIFA and UEFA are legimitate, second, whether the provisions are inherent and necessary, and, third, whether they are proportionate. That they are legimitate could be based on the fact that Article 165 TFEU does acknowledge the specific nature of sport, its structures based on voluntary activity and its social and educational function. The specific nature of how to govern and organize sporting competitions (leagues, matches) can justify the necessity of a prior approval mechanism. However, the lack of detailed rules on the exact boundaries to exercise the power to approve other competitions and to impose sanctions on non-compliant clubs and players should call into question, and should not meet the requirement of, the proportionality of these provisions. A transparent, objective, precise, and non-discriminatory scheme of prior approval, however, would be proportionate to the legitimate interests carried out by sports governing bodies. This should not, however, mean that breakaway competitions are to be rejected in all cases, if such a framework starts to exist.

3. A WARNING SIGN FOR SPORTS FEDERATIONS

Turning my attention to the analysis as regards Article 102 TFEU, a remark must be made at the outset, which is established case law for decades. ‘[T]he same conduct may give rise to an infringement of both [Article 101 and Article 102], even though they pursue different objectives and have distinct scopes. Those articles may thus apply simultaneously where their respective conditions of application are met. They must, accordingly, be interpreted and applied consistently, although in compliance with the specific characteristics of each of them.’⁵⁴

Simply put, because of the requirement that Articles 101 and 102 TFEU are interpreted in a consistent manner with one another, as regards the essence of their analysis, the same substantive differences can be identified between the approach of AG Rantos and that of the CoJ. Of course, their respective analysis was adjusted to the specific characteristics of abuse of dominance.

That the UEFA holds a dominant position for the organization and the commercial exploitation of international competitions between football clubs at European level is clear, and does not generate any disputes.⁵⁵

As Rantos formulates, ‘the analysis developed regarding the application of the case-law on “ancillary restraints” in the context of [Article 101] can be transposed when examining the measures at issue in the present case in the light of Article 102 TFEU.’⁵⁶ The outcome of the analysis of AG Rantos in light of Article 102 is that the mechanism is ‘objectively justified both in sporting terms, having regard to the legitimate objectives pursued by that federation, and economically in order to combat free riding or a ‘dual membership’ scenario liable to weaken the position of UEFA and FIFA on the market’.⁵⁷

Contrary to AG Rantos, but in accordance with its own analysis on Article 101 TFEU, the CoJ declares that if there are no transparent, objective, non-discriminatory and proportionate substantive criteria and procedural rules, the prior approval mechanism and the related possibility of imposing sanctions on non-compliant actors with that scheme constitute the abuse of a dominant position.⁵⁸

Another difference between AG Rantos and the CoJ which only comes to the fore as regards the assessment under Article 102 TFEU is the distinctive treatment of the essential facilities doctrine. While AG Rantos explicitly puts forth that the ecosystem of FIFA and UEFA cannot be regarded as essential facilities in light of the Bronner judgment,⁵⁹ without mentioning that decision the CoJ considers it impossible to set up a competition outside their ecosystem.⁶⁰ Taking into consideration the latter, it is clear that the CoJ was reluctant to delve into an analysis in light of the Bronner criteria.

In a reversed manner, what appears only fleetingly in the analysis of the CoJ, but not in that of AG Rantos, is Article 106. The CoJ does not go into very much detail in this regard, however, the mentioning of Article 106 within the assessment framework of Article 102 may suggest further implications for sports governing bodies. It is declared that in order not to infringe Article 102 TFEU by its very existence, read in conjunction with Article 106 TFEU, rules of prior authorization must be construed ‘within a framework of substantive criteria which are transparent, clear, and precise’.⁶¹ Although the reference to it is hiding in the text of the judgment (only twice), it may suggest some further (not so positive) future developments from the viewpoint of sports federations. It is enough to say that Article 106 (and its predecessor, Article 86 of the Treaty establishing the European Community) has been the means to liberalize monopolies. To provide one example: telecommunications services in the 1990s.⁶² By the same token, it is not surprising that Article 106 TFEU is invoked by the CoJ that delivered a much harsher decision on sports governing bodies, but the provision does not appear in the analysis of AG Rantos who is more lenient with them.

4. STATUTES REVISITED?

In light of the not-so-favourable judgments of the CoJ from the viewpoint of sports federations, in this section I take a brief look at the statutes in force of the respective governing bodies. Nearly a year has passed: has any change happened in the content of their regulations?

The May 2024 edition of the FIFA statutes, published more than five months after the judgments, does not contain any change in the most crucial points. Each confederation, such as the UEFA, shall ensure that international leagues or any other such groups of clubs or leagues shall not be formed without its consent and the approval of FIFA.⁶³ The other important regulations, titled Regulations Governing International Matches, are also intact as of 2014. The UEFA Statutes still declare that international matches, competitions and tournaments shall require prior approval.⁶⁴

Nonetheless, some encouraging developments have also taken place. The FIFA Council decided to set up a working group to scrutinize the latter regulations whether potential rule changes are necessary. The essence may be found in that aspect that the FIFA Council requested that the working group ‘base its proposals on the principles of transparency, objectivity, non-discrimination and proportionality’.⁶⁵ In October 2024, the composition of the working group was also established.⁶⁶ Furthermore, the UEFA Authorisation Rules governing International Club Competitions have been amended, but possibly as a consequence of the ISU judgment. Though in this article I do not delve into the analysis of the CoJ on arbitration rules because they do not infringe competition law,⁶⁷ it was ruled that the exclusive route to appeal ISU rules before the Lausanne-based Court of Arbitration for Sport, whose decisions on last instance are subject to the review of the Swiss Federal Supreme Court located in a non-EU (third) country, does not fulfil the requirement of effective judicial review. This ‘arbitration mechanism is such as to undermine the protection of rights that subjects of the law derive from the direct effect of EU law and the effective compliance with Articles 101 and 102 TFEU, which must be ensured—and would therefore be ensured in the absence of such a mechanism—by the national rules relating to remedies’.⁶⁸ As a consequence of this, the 2024 edition of UEFA Authorisation Rules creates the possibility for a party to unilaterally decide whether—instead of Lausanne—the seat of a CAS arbitration shall be in Dublin, Ireland.⁶⁹

It is clearly seen that the eligibility rules of the International Skating Union have recently been subject to continuous revisions. The provisions that were examined by the Commission and in the court proceedings have been changed in several aspects. For example, the sanction for breaching eligibility rules can be a warning or ineligibility for a determined period of time.⁷⁰ That is, there is no more life-time ban for skaters. Furthermore, there are quite detailed rules how to ensure proportionate sanctions.⁷¹

Yet it is clear that a slow compliance process has started as a consequence of the judgments.

5. CONCLUDING REMARKS

As is clear from the analysis, the CoJ with its judgments has initiated a development process as to the functioning of sports governing bodies. Some steps have already been made to comply with the decisions, and many more are about to unfold in the near future. The FIFA, however, does not seem to be in a hurry to adopt the new rules on the authorization of new tournaments (‘breakaway’ competitions). De iure the CoJ has paved the way to organize alternative competitions, such as the SuperLeague, more easily than the earlier rules had made it possible, and creating a fully transparent framework with a reasonably regulated procedure may give renewed impetus to any challenger. Though the sports governing bodies will still have a say in that regard, however, if they say ‘No!’, they will have to justify the outcome in such a substantial and procedural framework that is to ensure transparent, objective, non-discriminatory and proportionate decisions. The inclusion of Article 106 TFEU in the CoJ’s analysis may suggest the premonition of an even stronger change in sports governance, in comparison with what the December 2023 judgments have brought to the fore, if the compliance requirement stemming from them will not be carried out appropriately soon.

Institutionally, substantive criteria and detailed procedural rules that are transparent, objective, non-discriminatory and proportionate can be best operationalized, in my opinion, through setting up a decision-making council whose members are chosen at random in each case from a pre-determined list of experts (lawyers, economists, health care specialists) and stakeholders representing football players (such as FIFPRO⁷²), football agents, coaches, football fans (for example, the representatives of Football Supporters Europe⁷³) and the federations themselves. If the decision were made by a diversely constituted council of, for example, 15 members in each and every case when a new organizer submits its request, this would mean the true democratization of decision-making. Transparency could be achieved by, on the one hand, adopting the detailed rules of handling requests and, on the other hand, making the meeting of the decision-making council public. Procedurally, objectivity could be ensured with the randomness of choosing the council members. Non-discrimination can be understood as such that each and every request submitted by a potential tournament organizer that is well-founded and sufficiently elaborated must go through the same procedure of authorization. Proportionality, on the one hand, may refer to the substantive decision itself. For example, the organization of a new tournament could be rejected, if it is completely irreconcilable with the existing football agenda. An optimal solution could be that the decision-making council could adopt decisions also subject to certain conditionalities, for example to adjusting the new tournament’s agenda to the existing one. Furthermore, as clarified explicitly in the Diarra case, proportionality also applies to the possible sanctions (their amount and duration) imposed by the sports governing bodies,⁷⁴ if the decision is not complied with by a prospective organizer.

The article, furthermore, identified a possible third way of legal interpretation as to the relationship between sports governing bodies and competition law that could have been neither overly protective towards their behaviour nor underinclusive of the special characteristics that are attributed to the European sports governance model. By finding the balance between the two extremes, the applicability of the Meca-Medina test could have been preserved for by-object infringements, as well. Going to the opposite direction (limiting the applicability of the test to by-effect infringements) means a narrowed path also for exempting agreements in other sectors of the economy. It is enough to think of sustainability agreements. In the context of sports governing bodies, it would have meant the finding of a by-object infringement and the application of the Meca-Medina test to this infringement, within the framework of which not only the legitimate objectives (thanks to the explicit formulation of sports policy goals in the TFEU) could have been accepted, but also the necessity of these provisions aiming to contribute to these goals. In the end, however, the non-proportionality of these mechanisms to the attainment of the stated policy goals could have still resulted in failing the test (and, as an optimal by-product, in maintaining the case law that had not declared earlier at all the application limitations of the test).

To put it in a broader context, the CoJ clearly represents the view that the sports sector is of purely economic nature, unlike the areas listed in Title II of Part One, such as sustainability, consumer protection, data protection, etc. The CoJ suggests that professional sports are completely motivated by economic decisions, and thus the provisions in question adopted by FIFA and UEFA constitute by-object restrictions. Article 165 TFEU, unlike provisions having general application, does not contain such public interests that would be capable to soften the competition law orthodoxy. It can be seen as an acceptable conclusion, however, the arguments raised by the CoJ to arrive to that outcome should have been elaborated more clearly and with more substantiated reasoning. I have shown some flaws in the analysis.

De facto the situation is somewhat different. The SuperLeague wanted to transform the European football landscape. Rather, it was transformative in other aspects. Within 48 hours of the announcement of the SuperLeague, fans started such mobilization (street protests and online anger) against it that had never been experienced earlier. Almost no one questioned the legitimacy of this mobilization. Politicians, too, supported the resistance.⁷⁵ The fans messaged to everyone that football cannot be commodified, and ‘bolstered a determination to protect the heritage of its unique pyramid structure through statutory legislation’.⁷⁶ The question as to why football fans were furious about the idea of SuperLeague would require further scrutiny. What would have been the reaction of supporters, if FIFA and UEFA had not declared the exclusion of renegade clubs from their own conventional European tournaments (such as the Champions League)? If dual membership had not been posed as a problem by the governing bodies, fans could have watched more prestigious matches between the best teams. I think that this would not have proved so painful from the perspective of fans in comparison with a possible full disqualification of their beloved teams.

Actually, the CoJ did not take much risk with its decisions that opened the ‘legal’ door for breakaway competitions. Its legal interpretation makes it possible that the laws of supply and demand determine the outcome of sports business.⁷⁷ Not only the governing bodies will be decisive from now on. From time to time, competitors may appear on the scene. Furthermore, football fans will be part of a legally different landscape that may tolerate the dual membership of their beloved football clubs. It is up to them whether—with protests—they will reject the idea of any breakaway competition then. If not, it will signal the acceptance by everyone that professional sport is business. Paradoxically, then the famous saying ‘football belongs to everybody’ will be closer to the truth.

Footnotes

Acknowledgements

The views and opinions expressed in the artice are my own, and do not reflect those of any institutions I am affiliated with.