FIFA and UEFA rules get wrap on the knuckles from Europe's highest court

Will the European Super League emerge after all? On 21 December 2023, the European Court of Justice handed down a judgement finding that the FIFA and UEFA rules,  which precluded the creation of competing associations such as the European Super League, breached EU competition law.

Background

The judgement of the Court of Justice was a response to a request by the commercial court in Madrid asking for an interpretation of EU competition law in relation to the FIFA an UEFA rules. The Madrid commercial court had been asked by the European Super League Company (a Spanish incorporated company) to rule on the compatibility of the FIFA and UEFA rules with EU competition law, specifically Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) . 

The Court of Justice held that:

Sport is caught by competition law rules

In so far as it constitutes an economic activity, sport is subject to EU competition law. Only specific rules adopted on non-economic grounds and which relate to purely sporting issues are outside the remit of competition law. 

Football associations can be 'undertakings' and/or 'associations of undertakings'

FIFA and UEFA are undertakings in their own right as they carry out economic activities by organising and marketing interclub football competitions and exploit various media rights, and therefore are subject to Articles 101 and 102 TFEU.

FIFA and UEFA are also associations of undertakings within the meaning of Article 101 TFEU as their members are engaged in economic activities.

Associations of undertakings can hold dominant positions

FIFA and UEFA hold a dominant position in the organisation and marketing of interclub football competitions in the EU - they are the only two entities which organise and market interclub football competitions within the EU.

Anti-competitive and abusive rules/conduct

The FIFA and UEFA rules are by their very nature anti-competitive and abusive. The rules enable FIFA and UEFA to prevent all competition from entering the market by placing obstacles to competitors' entry or by using other means different from competition on its merits (such as threatening to terminate membership of any player or club which participates in the Super League). 

While common rules intended to guarantee equal opportunities in sporting competitions are necessary to ensure compliance, those rules need to be set within a framework of substantive criteria which are transparent, objective, non-discriminatory, proportionate and subject to review. This was not the case for the FIFA and UEFA rules which, instead, enabled them to abuse their dominance by restricting competing associations from entering the market. Further, the rules were not capable of justification as the benefits claimed did not outweigh the anti-competitive effects, particularly as the rules eliminate all competition on the market. 

Concluding remarks

The judgement does not mean that a competition such as the European Super League must be approved, however, it means that UEFA and FIFA need to remove the main rules that were an obstacle to the creation of competitions such as the European Super League. Removal of these obstacles which would make acceptance of this competition more likely. 

This judgement provides useful guidance for sporting associations to make sure that the application of any rules which give them power to govern the behaviour of their competitors, are subject to independent review and are assessed against a framework of objective criteria.
The judgement also has wider application for all trade associations and other 'associations of undertakings' who may wish to ensure their rules are in line with the Court of Justice's findings. 

For further information please contact Elisabetta Rotondo, Paolo Palmigiano or Louisa Penny from our competition team.