European Super League case tracker

The European Court of Justice (ECJ) heard arguments over two days in July 2022 from UEFA and the three clubs that remain committed to the European Super League (Real Madrid, Barcelona and Juventus) on whether UEFA is in breach of European competition law see our update on 11 May 2021

The three clubs contest that UEFA is operating an illegal monopoly over European football, by virtue of being both its governing body and competition organiser – and that there is a conflict between those regulatory and commercial functions. They argue that the ESL is the natural by-product of competition and would have succeeded but for UEFA's 'monopolistic' position. 

Representatives for UEFA, on the other hand, argued that the monopoly it enjoys, and the action it took against the ESL, is justified, as UEFA was protecting a legitimate objective: the integrity of the sport and uniform rules. UEFA also argues that the ESL, being a closed league which would restrict competition and is contrary to the European sporting model of a pyramid structure, is contrary to one of the EU's objectives. That objective, set out in Article 165 of the Treaty on the Functioning of the European Union, is “developing the European dimension in sport, by promoting fairness and openness in sporting competitions”.

The ECJ is expected to give its judgment in early 2023. A finding for the ESL clubs could represent an earthquake for sporting models within Europe and UEFA's authority – and breathe life back into the ESL. Before that decision, a non-binding opinion on how the ECJ should determine the case is expected from the Advocate General before the end of 2022.

Following a request by UEFA to end the legal proceedings in Spain brought against UEFA, FIFA, La Liga and the Spanish Football Federation, the Madrid court has rejected UEFA's argument that the ESL was no longer an active project.

As a result, the case before the court in Madrid, which examines whether UEFA acted as a monopoly by opposing the ESL, may continue. However, the Madrid court will not set a date for the trial until the European Court of Justice has delivered its verdict on the ESL's competition law challenge (see our update on 7 June 2022 for further details).

For the ESL and European football's governing bodies, this decision places even more emphasis on the European Court of Justice's verdict, given its impact on the Madrid case.

A two-day hearing has been scheduled to take place on 11 and 12 July 2022 to determine the whether UEFA and FIFA breached competition laws by prohibiting the creation of the ESL.

This follows a Madrid court referring the competition law challenge by the ESL against UEFA and FIFA directly to the European Court of Justice (for further details, see our update on 11 May 2021).

Following the hearing, it is anticipated that a report will be published by an advocate general for the European Court of Justice setting out their opinion on the case – this is not binding on the court but will be indicative of how the case may be decided. After this, a verdict in the case will be given, which is likely to be towards the end of 2022. That decision could be monumental – if it agrees with the ESL that UEFA and FIFA  did breach competition law, it would open the way to the ESL being re-launched. It could also expose football's governing bodies to substantial damages claims for their anti-competitive practices in preventing the ESL's launch last year.

A Spanish court has lifted the "precautionary measures" (in place since April 2021) that protected the three ESL member clubs (Real Madrid, Barcelona and Juventus) refusing to renounce the European Super League project from FIFA and UEFA disciplinary proceedings or sanctions. See our 20 April 2021 update for details on the initial measures ordered against UEFA and FIFA.

The Madrid court's ruling lifted the injunction granted to the clubs, on the basis that any punishment of them by UEFA or FIFA would not prevent them from proceeding with the ESL as a breakaway competition outside UEFA's control. As a result of this ruling (which can be appealed by the three ESL clubs), UEFA could re-open disciplinary proceedings against the three ESL clubs with punishments to follow (such as, whilst unlikely, expulsion from the Champions League). So whilst UEFA has announced it is considering the implications of the ruling, the extent of its appetite to sanction the remaining ESL clubs remains to be seen.

UEFA has announced its full support for an initiative led by Football Supporters Europe, an umbrella organisation of fan groups at European level. The campaign, known as 'Win It On the Pitch', seeks to protect what it describes as the fundamental principles of the European sporting model, being "sporting merit, promotion and relegation, qualification to Europe via domestic success, and financial solidarity", which many believe were under threat from the ESL.

To achieve this, the campaign is petitioning the European Commission to enact new laws that would protect the European model of football – essentially outlawing the formation of breakaway leagues, such as the ESL. It is notable that UEFA has been so public is its backing).

The EU Parliament has added its own voice to the legions opposing the European Super League, by passing a resolution on EU Sport Policy. Whilst this makes a number of recommendations that could shape the structure of European sport, of particular interest is that it expresses that it "strongly opposes breakaway competitions that undermine such principles and endanger the stability of the overall sports ecosystem". As a result, it calls for the EU and other football stakeholders to take action to protect the European sports model from the threat of breakaway leagues, such as the ESL.

The resolution emphasises the distinguishing features of the European sporting model, such as principles of solidarity, sustainability, inclusiveness for all, open competition, sporting merit and fairness. This is in contrast to breakaway competitions that undermine these principles, a clear reference by the EU Parliament to the ESL's proposal and its structure.

However, as this is a non-binding resolution, whether, in what form and how swiftly action from the European Commission and EU member states materialises will be important for all stakeholders involved during this intriguing period for European football. This is particularly the case whilst the various legal proceedings involving the three ESL clubs and UEFA before the European Court of Justice and in Spain are ongoing.

UEFA has confirmed that the majority (16 out of 27) of EU member states have filed written submissions to the European Court of Justice in opposition to the proposed breakaway ESL. The court will decide whether UEFA abused its dominant position as a regulator of football and acted anti-competitively by preventing the creation of the ESL, particularly the sanctions imposed on ESL clubs by UEFA (see our 11 May 2021 update). However, this significant majority indicates where the balance of political support lies in the ongoing dispute.

 

On 27 September 2021, UEFA announced that it has abandoned the disciplinary proceedings it was bringing against the three ESL member clubs (Real Madrid, Barcelona and Juventus) that have refused to renounce the project.

UEFA had been ordered by a Madrid court in June 2021 to cease the proceedings, but had been refusing to do so, until a renewed demand from the court last week. UEFA has also stated that as long as the Madrid court proceedings are pending (being a claim by the three ESL clubs that UEFA's behaviour is anti-competitive and breaches EU competition law – see our update on 11 May 2021), it will not require the payment of any of the other financial penalties which it had agreed with the original nine members of the ESL as part of a settlement reached in June. See our 9 June 2021 update for details on the settlement reached with the Premier League ESL members.

In a further development, UEFA also issued a statement on 28 September 2021 that it is seeking to have the judge overseeing the proceedings in the Madrid court removed, citing significant irregularities in those proceedings and alleging that the judge obstructed its attempts to sanction the remaining the ESL clubs.

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.