ECJ holds that FIFA and UEFA breached EU competition law by adopting rules attempting to block the Super League

On 21 December 2023, the European Court of Justice (“ECJ”) rendered its judgement in case C-333/21, European Super League. The case concerns a request for a preliminary ruling from a Spanish court asking whether certain rules set by the football governing bodies FIFA and UEFA violate EU competition law. The ECJ found that the contested FIFA/UEFA rules constitute an abuse of dominant position contrary to Article 102 TFEU and an anticompetitive decision by an association of undertakings contrary to Article 101 TFEU.

Background to the Super League case

In April 2021, twelve top-tier football clubs from Spain, Italy and England announced their intention to establish a new football competition, the Super League, that would run in parallel with the European competitions organised by UEFA such as the Champions League.

FIFA and UEFA strongly objected to the creation of the Super League. FIFA’s and UEFA’s own statutes in force at the time required any new football competition, organised by a third-party organisation, to obtain FIFA/UEFA’s prior authorisation and prohibited clubs and players from participating in any unauthorised competitions. As no authorisation had been sought, FIFA and UEFA threatened football clubs and players taking part in the Super League with sanctions including exclusion from any tournaments organised by FIFA and UEFA.

The Super League organisers challenged the legality of the FIFA/UEFA statutes before a national court in Spain, claiming that those rules were contrary to EU competition law. In May 2021, the Madrid court referred the case to the ECJ, asking whether the system of pre-authorisation and the threats of sanctions could be contrary to EU competition law.

The ECJ judgment

At the outset the ECJ judgment recognises that FIFA and UEFA are allowed to adopt pre-authorisation rules (and impose sanctions for non-compliance with such rules) as they may pursue legitimate objectives, in particular to promote the holding of competitions based on equal opportunities and sporting merit. The ECJ considers that these objectives form part of the principles, values and rules of the game underpinning professional football.

However, considering that FIFA and UEFA have the power to determine the conditions in which potentially competing undertakings may access the market, the ECJ held that such “gatekeeping” power must be subject to appropriate safeguards to prevent FIFA/UEFA from arbitrarily using its regulatory powers. In particular, the ECJ held that FIFA and UEFA must ensure that their pre-authorisation rules are transparent, objective, non-discriminatory and proportionate. The ECJ noted that FIFA and UEFA had not set up any substantive and procedural framework ensuring any of these safeguards and consequently found that FIFA and UEFA infringed EU competition law by depriving clubs and players of the opportunity to participate in new competitions and, ultimately, depriving spectators and viewers of being able to watch what could be an innovative, new format.

The ECJ found that FIFA and UEFA had breached both Article 101 and Article 102 TFEU. The ECJ found that FIFA and UEFA hold a dominant position on the market for the organisation and marketing of interclub football competitions in the EU. Given that FIFA/UEFA had not set up any substantive and procedural framework for dealing with pre-authorisations, the ECJ found that FIFA/UEFA had abused its dominant position.

The ECJ also found that the pre-authorisation rules constituted a decision by an association of undertakings that had the object of restricting competition, contrary to Article 101 TFEU. This part of the judgment shares common grounds with the ECJ’s judgment in case C-124/21 P, International Skating Union (ISU), which also was issued on 21 December 2023. The ISU case concerned an appeal against a Commission decision finding that ISU’s rules, which required prior approval for the organisation of international skating competitions and provided for severe penalties on athletes who participated in unauthorised competitions, constituted an infringement of Article 101. The ECJ upheld the General Court’s judgment which in turn had upheld the Commission’s decision.

Having established that FIFA and UEFA had breached EU competition law, the ECJ nevertheless left open the possibility for the infringements to be objectively justified if supported by convincing arguments and evidence. The ECJ did not however adjudicate on this matter as it is for the referring Spanish court to determine. The ECJ however clarified that FIFA/UEFA may try to demonstrate that their pre-authorisation rules are indispensable to pursue legitimate objectives if they produce evidence that those objectives translate into quantifiable efficiency gains counteracting the harmful effects on competition.

Implications of the Super League judgment

The ECJ judgment makes clear that pre-authorisation rules only will be acceptable if such powers are circumscribed by appropriate safeguards. The judgment will thus have an impact on sports governing bodies who will likely need to review their rules and procedures to ensure they are transparent, objective, non-discriminatory and proportionate.

The ECJ did not rule on whether the Super League should be approved by FIFA/UEFA. The ECJ judgment however opens the door for new football competition proposals to be put forward before FIFA/UEFA for authorisation. The initial Super League proposal from April 2021 was partly designed as a “closed” competition with permanent members (i.e. without a system of promotion and relegation) and therefore appeared to be at odds with the principles of equal opportunity and sporting merit endorsed by the ECJ. While the initial Super League proposal failed due to widespread fan protests, the Super League have, following the ECJ judgement, revealed a revamped proposal. The new proposal would feature a promotion and relegation system, a separate competition for women’s clubs as well as a new streaming platform which would show the Super League matches for free to consumers. Although the Super League project might feel emboldened by the ECJ judgment, only the future will tell us how this saga will unfold.