UEFA sanctions against Super League clubs and players may infringe competition law
On Sunday, 18 April 2021, the whole football world was electrified by news that major clubs from England, Spain and Italy are finalising the construction of the “Super League.” These exclusive matches would be independent of the Union of European Football Associations and pose competition for the Champions League organised by UEFA.
This sparked a violent reaction from the leaders of UEFA, which is a unit of FIFA (the International Federation of Association Football). UEFA leaders not only threatened to exclude the clubs involved in the project from tournaments at the national, European and world levels, but said the clubs’ players could be barred from national teams.
Reportedly, a special session is underway at UEFA devoted to the crisis sparked by the Super League project.
This conflict may give rise to an intriguing antitrust dispute. Last year the General Court (part of the Court of Justice of the European Union) ruled that sports federations cannot prohibit players from appearing in matches not authorised by the federation, as such a ban would infringe competition law.
The ruling was issued pursuant to a complaint filed by two Dutch speed skaters who wanted to participate in competitions to be held in Abu Dhabi, organised by a private Korean firm. The skaters ultimately had to abandon their plan due to the eligibility rules of the International Skating Union providing for a sanction of up to a lifetime disqualification for a skater taking part in competitions not authorised by the ISU.
The European Commission, which took up the complaint, concluded that although the ISU is a non-governmental organisation, part of the Olympic movement, it conducts commercial activity as it organises competitions and other sports events from which it derives economic benefit. It is also an association of undertakings (national federations and clubs) which also pursue commercial activity. The Commission found that the ISU rules prohibiting skaters from taking part in events organised by competing entities, under the threat of severe sanctions, constituted a “decision by an association of undertakings” with the object of restricting competition and violated Art. 101 of the Treaty on the Functioning of the European Union. In International Skating Association v Commission (Case T-93/18), the General Court upheld that assessment.
The sanctions which UEFA seeks to impose on the creators and participants in the Super League are of a similar nature, although a simple analogy cannot be drawn in this case. In the ISU case, the Commission and the General Court pointed to certain specific features of the relevant market, particularly the limited opportunities for earning money which the market creates for skaters. In this respect, the football market is strikingly different.
Nonetheless it seems that at least the sanctions threatened by UEFA against players appearing for the rebellious clubs creating the Super League would have a lot in common with the ISU practice held to be illegal. It is highly likely that if UEFA does not back down from these threats, the case will end up before the antitrust authorities, who will once again stand in defence of the rights of professional athletes.
Stanisław Drozd, Sports Law practice, Wardyński & Partners