On December 21, 2023, the European Court of Justice (‘the Court’) provided answers to preliminary questions from the Commercial Court of Madrid concerning the disapproval of the European Super League (‘ESL’) by the Fédération Internationale de Football Association (‘FIFA’) and the Union of European Football Associations (‘UEFA’). The questions focused on the legality of the two associations’ disapproval of the ESC under EU law.
The European Super League Company (‘ESLC’) was initially backed by 12 well-known large European football clubs, including FC Barcelona, Real Madrid and Juventus. The ESLC aims to organize the ESL, an annual European football competition independent of UEFA. However, this project depends on recognition by FIFA and/or UEFA. Following the announcement of the ESL, the FIFA and UEFA declared that they would not accept this new competition and warned that football clubs participating in the ESL would be excluded from national and international competitions.
FIFA’s statutes state that football associations can become FIFA members if they are already members of one of the six continental confederations recognized by FIFA, such as UEFA in Europe. According to their statutes, FIFA has exclusive rights to organize international football matches and the authority to regulate and distribute these rights. UEFA has similar objectives and powers regarding European football and also controls international matches and competitions within Europe.
The ESLC believes that FIFA and UEFA’s rules regarding the approval of competitions and the exploitation of media rights violate EU law. The ESLC claims that the statutes of FIFA and UEFA hinder competition in the market for organizing and marketing international football competitions within the EU. The ESLC also believes that the actions of the football federations violate EU treaty articles that guarantee freedom of movement within the EU. The Spanish judge asked the Court for clarification on the application of EU treaty articles based on these points.
The Court considers the organization of international football matches for professional clubs and the management of associated media rights as economic activities. Therefore, these activities must comply with competition rules and must not restrict freedom of movement within the EU. Furthermore, the Court ruled that the practices and regulations of FIFA and UEFA, regarding the requirements for prior approval, amount to an abuse of their dominant position. It is also seen by the Court as a violation of the cartel prohibition and an infringement on the freedom to provide services within the EU. The approval process must be regulated in a way that is objective, transparent, and non-discriminatory, according to the Court. The current situation, which lacks a framework with independent criteria and rules for approval, is therefore in violation of EU law.
On top of this, the Court noted that FIFA and UEFA’s rules on the exploitation of media rights could be harmful to European football clubs, companies active in the media world and ultimately to television viewers. This is because consumers may be prevented from seeing new and potentially innovative competitions due to FIFA and UEFA’s rules. However, it is up to the Spanish judge to determine whether FIFA and UEFA’s rules can be justified, for example, when they can be beneficial for various stakeholders in football. This could be achieved, among other things, by ensuring that the profits generated from media rights are fairly distributed.
