European Super League case tracker

The last three standing of the original 12 members of the European Super League have issued a joint statement reaffirming their intention to "keep developing the Super League project", and stating that "Clubs participating in European competitions have the right to govern their own competitions".

The statement follows the order of the Madrid Court earlier in July that UEFA's threatened disciplinary proceedings against the three clubs breached its earlier orders preventing such measures.  The clubs' statement read "We are pleased that going forward we will no longer be subject to Uefa's ongoing threats". 

The April order had put in place "precautionary measures" pending the Court of Justice of the European Union ruling on the competition claim being brought by the ESL against UEFA.

The Court of Justice of the European Union has refused a request from a Madrid court to expedite a decision on the competition claim (reported below) being brought by the European Super League alleging that UEFA and FIFA have abused their dominant position as football regulators.

This means that it is likely to be at least a year before Europe's highest court rules on the claim.

A Madrid court has made an order stating that UEFA's disciplinary proceedings against Real Madrid, Barcelona and Juventus - the three clubs refusing to give up on the European Super League project – are a "flagrant breach" of its order of 20 April (reported below).

The order also stated that the penalties imposed on the nine clubs that have withdrawn from the ESL (to which those clubs agreed as part of settlements with UEFA and their national federations) breached the precautionary measures granted in its 20 April order.

Despite these firm rulings by the Madrid Court, it remains to be seen whether UEFA will modify its firm stance against the ESL, given the strength of its pronouncements to date.

UEFA will be making representation to the CJEU as part of the case to decide whether the UEFA rules are in breach of EU competition law rules (see 11 May update below for details of the competition law issues under consideration).  That case is unlikely to be heard until 2022.

The six English clubs who were to be founder members of the European Super League have reached an agreement with the Premier League, in order to avoid any disciplinary action being taken against them.

Each of Arsenal, Chelsea, Liverpool, Manchester City, Manchester United and Tottenham Hotspur have agreed to pay a combined £22 million, which will be used for grass roots football.  They have also agreed to accept a fine of £25m each, and a 30 point deduction, if they should attempt to join an unsanctioned competition in the future.

The £22 million fine, split between the six richest clubs in the world's richest football league (who all feature in the top ten of Forbes' list  of the world's richest clubs), is clearly no deterrent to attempting to revive the ESL in the future.  Nor, even, would be the future £25m fine per club.  While the 30 point deduction clearly has some teeth, even that is unlikely to be the deciding factor – it is hard to see how the clubs' long-term future in the Premier League would have been sustainable if the ESL had proceeded.  The key factors standing in the way of a future breakaway competition are (i) public appetite for it, (ii) laws that the English government might pass to outlaw it, and (iii) the sanctions that UEFA and FIFA might impose on the clubs and their players – including banning them from international tournaments.

UEFA has announced that it has begun disciplinary proceedings against Real Madrid, Barcelona and Juventus, the last three standing of the original 12 members of the ESL.
 

UEFA today announced “Following an investigation conducted by UEFA Ethics and Disciplinary Inspectors in connection with the so-called ‘Super League’ project, disciplinary proceedings have been opened against Real Madrid CF, FC Barcelona and Juventus FC for a potential violation of UEFA’s legal framework.”

The other founder members of the ESL have already reached an agreement with UEFA under which they accepted relatively modest financial penalties, including contributing a combined €15m to grassroots football and having 5% of their revenue from European competitions withheld for one season.

Mishcon sports lawyer Tom Murray has co-authored this article which examines the many regulatory hurdles that the ESL faced, and why it was perhaps always doomed to fail.

A Madrid court has referred the ESL's competition law challenge directly to Europe's highest court, the Court of Justice of the European Union. 

The remaining three ESL clubs are seeking to keep alive the breakaway league by bringing a legal claim alleging that UEFA and FIFA abused their dominant position as football regulators.  The alleged anti-competitive behaviour is their attempt to prohibit the launch of an alternative competition to those sanction by UEFA.  This, the ESL claims, is an unfair restriction on their right to participate in competitions of their choosing.

EU competition law is applicable to sporting rules if they impact on commerce and trade and are not simply the "rules of the game".   Specifically, commercial arrangements between clubs, or rules imposed by a governing body, restricting the activities of clubs or their players are fully within the ambit of EU competition laws.   EU competition law prohibits anti-competition agreements and practices, and also the abuse of a dominant market position. 

A sole regulator for a professional sport is likely to enjoy a dominant market positon.  Their decisions will be likely to have an impact on competition, and may be regarded as abusive if there is no objective justification for them.

Many sports governing bodies impose forms of exclusivity in their rules to prevent clubs or individuals participating in any leagues or tournaments beyond the ones they officially sanction.  The European General Court in December 2020 upheld a Commission finding that the rules of the International Skating Union (ISU) (which prevented skaters participating in ISU events if they had previously competed in "unauthorised" events) to be an unlawful abuse of dominance.  The ISU is appealing this case to the Court of Justice of the EU, but for now, the General Court case provides the three ESL clubs with a strong and recent precedent to support their argument that UEFA rules and threats of sanctions are incompatible with EU competition law.

In the face of the overwhelming fan backlash, threats of reprisals from FIFA, UEFA and the Premier League, and even a "legislative bomb" from the UK government, all six of the English Premier League clubs which had signed up to join the ESL have now withdrawn from it.

A court in Madrid has granted "precautionary measures" sought by the ESL, ordering FIFA and UEFA to refrain from taking any action which "prevents or hinders, directly or indirectly", preparations for the launch of the European Football Super League.  This includes bringing any disciplinary proceedings against the ESL member clubs or imposing any sanctions on them.  The Court has also ordered FIFA and UEFA to instruct national member associations (such as the FA and English Premier League) not to take any equivalent action against the ESL clubs.

These measures are temporary ones, to be in place while the ESL's competition law challenge to UEFA's action against the ESL remains live.  Whether UEFA will comply with them is another matter entirely.

Following the shock announcement on Sunday 18 April 2020 that 12 of Europe's biggest clubs would join the breakaway European Super League ("ESL"), our legal experts give their views on the impact it will have, the legal issues it raises and its chances of getting off the ground. View the article here.