On 15 December, Advocate General Rantos, a member of the Court of Justice of the European Union, published an initial opinion on whether UEFA and FIFA’s opposition to the creation of a European Super League in 2021 breached EU competition law. Jan Zglinski examines what the opinion means for sport in Europe

Zglinski, Jan

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Constitutionalising the European SportsModel: The opinion of Advocate GeneralRantos in the European Super LeaguecaseOn 15 December, Advocate General Rantos, a member of the Court of Justice of theEuropean Union, published an initial opinion on whether UEFA and FIFA’s opposition tothe creation of a European Super League in 2021 breached EU competition law. JanZglinski examines what the opinion means for sport in Europe.As most football fans – at least those who did not choose to boycott the tournament –have begun to wonder whether Messi or Mbappé will lift the World Cup trophy onSunday, a major development in the world of football has taken place, far away from theclimate-controlled stadia in Qatar.Yesterday, Advocate General Rantos, member of the Court of Justice of the EuropeanUnion, published his opinion in the European Super League case. The timing was nocoincidence: the opinion came out 27 years to the day after the Court’s Bosman ruling,unarguably the most consequential judgment in the field of EU sports law. The SuperLeague litigation, too, promises to have significant effects on the future of footballgovernance.To recap: last April, twelve football clubs, known as the ‘dirty dozen’, announced theirintention to establish a breakaway league comprising some of the best teams on thecontinent. Backed by JP Morgan, this new European Super League would generate eye-watering revenue for the teams involved and function as a quasi-closed shop, withpermanent members being able to participate regardless of their performance at thenational level.Within less than 48 hours, the project collapsed. Fans protested, politicians got involved,UEFA threatened sanctions against the breakaway clubs and their players. As a result,nine of the twelve clubs withdrew and a legal battle ensued. The Super LeaguePage 1 of 5Permalink: undefinedDate originally posted: undefinedDate PDF generated: 03/01/2023masterminds brought a case before the Commercial Court of Madrid, arguing that UEFAviolated EU competition rules by trying to stop the league. UEFA, in turn, claimed that itsactions were justified, even protected, by EU law.Vindication for UEFAThe Advocate General’s opinion largely vindicates UEFA’s position. It finds that the merefact that a sport governing body regulates and organises sporting competitions is not, atleast not per se, a violation of competition law. That FIFA and UEFA reserve the right toauthorise third-party competitions like the European Super League restricts marketaccess, but can be justified if legitimate policy objectives are pursued in a proportionatemanner.These include promoting sporting merit, equal opportunities, and financial solidarity.Although the Advocate General defers parts of the proportionality assessment to thereferring court, especially regarding the effectiveness of UEFA’s revenue redistributionmechanism, his conclusion appears to suggest that the system is justified andproportionate. For similar reasons, there is no violation of free movement law.The rules for prior approval need to be objective, transparent, and non-discriminatorywhich, again, will be for the national court to examine. The football governing bodiesanticipated this requirement and changed their regulations during the course of theproceedings. Yet, in an odd addendum, the opinion stresses that even if the regulationswere found to fall foul of these criteria, it would not mean that the European SuperLeague has to be authorised, particularly if it runs counter to legitimate sportingobjectives.UEFA can issue sanctions against the clubs participating in the Super League – not,however, against the players ‘who were not parties to the decision to set [it] up’ (butcould, one might object, choose to profit from it). Mind you, none of this means thatbreakaway leagues cannot be established. In fact, the opinion explicitly states that theycan be created freely outside of FIFA and UEFA’s ecosystem. It simply means thatbreakaway clubs cannot have ‘dual membership’, i.e. be simultaneously part of a SuperLeague and official competitions.Implications for breakaway leaguesPage 2 of 5Permalink: undefinedDate originally posted: undefinedDate PDF generated: 03/01/2023There are many intriguing elements in the opinion, too many for a brief summary, so Ishall limit myself to three points. Most immediately, its findings – if they are followed bythe Court – imply that establishing breakaway leagues will become, or rather remain,very difficult. FIFA and UEFA cannot completely prevent third-party competitions withintheir structures, but they are allowed to have a system of prior approval to protect theireconomic and non-economic interests.Clubs can create new formats outside those structures, but will face the prospect ofbeing excluded from all other national and international competitions. This is a toughchoice. At least for now, it is hard to imagine teams like Liverpool, Barcelona, orJuventus leaving their domestic leagues, even for financially lucrative projects like theEuropean Super League. Despite the rapidly advancing globalisation of football, the coremarket for football clubs still tends to be national.Constitutionalising the European Sports ModelPerhaps more significantly, the opinion appears to constitutionalise the European SportsModel. What started as a loose concept in a Commission memo from 1998, only to bepractically discarded in a 2007 White Paper on Sports, has experienced a remarkablerevival over the past year-and-a-half.According to this model, European sports are organised according to a pyramidstructure, with (international) professional sports at the top and (local) amateur sports atthe bottom; embrace the idea of open competitions, which is defined by a system ofpromotion and relegation, a comparatively strong belief in sporting merit, as well as toolsfor maintaining competitive balance; and promote financial solidarity by redistributingrevenue from the higher to the lower echelons. AG Rantos proposes that Article 165TFEU ‘gives expression… to the “constitutional” recognition’ of that model. This includesboth its institutional features and the cultural values underpinning it.Will this recognition matter in practice? Only time will tell. The language ofconstitutionality would suggest that organisational choices which are contrary to theEuropean Sports Model are off the table as a matter of EU primary law. This does not sitwell with the parallel acceptance of different forms of sports governance in the opinion.Instead, the passage is probably best read as a plea for taking Article 165 TFEUseriously, as an, in the words of the Advocate General, ‘horizontal provision’ that mustPage 3 of 5Permalink: undefinedDate originally posted: undefinedDate PDF generated: 03/01/2023be considered when interpreting other EU rules.This could still leave a mark on European sports law and policy. It imbues the idea offederations exercising monopolies of the governance of a sport with heightenedlegitimacy, rendering challenges to their rules more difficult. It may affect the legality ofthird-party competitions, which could have to comply with substantive principles like theidea of promotion and relegation in order to be authorised. By contrast, it does not seemto have much purchase when it comes to scrutinising the decisions of sport governingbodies themselves. In casu, Article 165 TFEU appears to have led to the adoption of avery lenient standard of review in relation to the justifications put forward by UEFA, mostof which are directly connected to the European Sports Model.UEFA and the EU: From confrontation to co-option?Which brings me to my final point. The opinion is a striking testament to how much therelationship between the EU and UEFA/FIFA has changed. Long gone are the days ofBosman where the two sides held at daggers drawn. Over time, both football governingbodies and EU institutions understood that improving their rapport was mutuallybeneficial.They started developing policies together, issued joint statements, and, since 2014, havehad formal cooperation agreements. The Super League dispute is yet another watershedin this regard. The European Parliament and Council went to UEFA’s rescue, adoptingresolutions that explicitly opposed breakaway leagues and endorsed the pyramidalstructure. In the litigation before the Court, UEFA is, for the first time, not just defendingitself from – but also on the basis of – EU law. The European Union is not a threat, but avital source of support for the football pyramid.One may feel a sense of delight about this given the deeply unpopular nature of theopponent. But it also comes with risks. The world of football suffers from a number ofproblems, ranging from antiquated governance structures, to continuous genderinequalities and growing financial imbalances. Using EU law and institutions to protectthe status quo rather than to challenge it can be counterproductive to effect change.AG Rantos’s opinion illustrates this neatly. Without much hesitation, it accepts theobjectives pursued by UEFA as legitimate and the means to achieve them asPage 4 of 5Permalink: undefinedDate originally posted: undefinedDate PDF generated: 03/01/2023proportionate. Yet, is there a genuine equality of opportunities in present-day Europeanfootball? Is there sufficient redistribution? Do we still have a meaningful competitivebalance? The Super League case was an opportunity to ask football governing bodiessome legitimate questions, an opportunity that has been largely missed. Some yearsago, Borja García quipped that the relationship between UEFA and the EU had moved‘from confrontation to co-operation’. The EU needs to make sure that it does not end inco-option.Note: This article gives the views of the author, not the position of EUROPP – EuropeanPolitics and Policy or the London School of Economics. The author warmly thanksAntoine Duval, Borja García, Alexandra Ortolja-Baird, and Steve Weatherill for theirinsightful – and timely – comments. Featured image credit: Thomas Serer on UnsplashPage 5 of 5Permalink: undefinedDate originally posted: undefinedDate PDF generated: 03/01/2023

Constitutionalising the European sports model: the opinion of Advocate General Rantos in the European Super League case

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Constitutionalising the European sports model: the opinion of Advocate General Rantos in the European Super League case

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