AG opinion favors UEFA on Super League | White & Case LLP

important point

• The legality of most sports federation rules is based on whether they actually produce an anti-competitive effect. The rule at issue in the lawsuit was not per se illegal under competition law.
• Effectiveness testing examines whether third parties have been unfairly denied access to the market.
• Sports federations may adopt rules with potentially anti-competitive effects without violating EU competition law, but those rules must pursue a legitimate objective on a proportionate basis. not.
• Sports federations may have a pre-approval system to protect their economic and non-economic interests, but they must ensure that the application of this system does not impose disproportionate restrictions on competition. context.
• The “European Sport Model” sets out legitimate objectives (pyramid structures, open competition, financial solidarity) that can outweigh the anti-competitive effects of the rules laid down by the sports federations.

Super League Case: Background

Starting in April 2021, the European Super League (“ESLs“) included 12 professional football clubs that hoped to establish a new league made up of some of Europe’s best clubs. FIFA and UEFA have threatened to impose sanctions on players and clubs, disqualifying them from participating in the tournament.

The ESL organizers have sued UEFA and FIFA in a Madrid court, alleging that they have violated Articles 101 and 102 of the TFEU. In May 2021, a court in Madrid referred the case to Luxembourg, asking the ECJ to rule on whether the prior approval and sanctions regimes contained in the UEFA and FIFA Statutes violate EU competition law. rice field.

AG’s opinion: The prior approval and sanctioning regimes of FIFA and UEFA serve a legitimate purpose given the special nature of sport and are not in themselves incompatible with EU competition law. Whether a system has anti-competitive effects must be considered in the light of certain facts, laws and economic circumstances.

AG Rantos points out that UEFA’s pre-approval and sanctions regulations are not per se illegal under Article 101(1) TFEU.

First, AG Lantos refers to the special “social and educational function” of sport and the “European model of sport” reflected in Article 165 of the TFEU.¹ He highlights the relevance of these factors when analyzing whether UEFA’s rules pursue them. legitimate purposeThe European sports model is based on a pyramid structure from amateur sports to elite professional sports, characterized by open competition and economic solidarity.² AG Rantos believes that sports federations such as UEFA play an important role in this model from an organizational point of view, as they ensure respect and uniform application of the rules. He also points out that the fact that UEFA is both a regulator and a commercial entity that organizes international competitions increases the risk of disputes, but that alone is not sufficient to establish competition law violations. AG Rantos therefore argues that pre-approval rules are justified because the objectives of UEFA and FIFA are in line with the principles of the European sporting model.³ In this regard, he points to their aim of maintaining open competition and a competitive balance between clubs.

AG Rantos then examines whether the restriction is inherent and directly related to the legitimate purpose being pursued. He found this to be true. In particular, AG Rantos said the ESL could undermine the legitimate objectives pursued by UEFA and FIFA. inherent For the purposes of FIFA and UEFA.^Four In this regard, he notes the possible negative impact of ESL on the national leagues that ESL participants continue to participate in. Favorable ESL, although other clubs do not. He also points out the lack of a “pan-European” nature of ESL. This goes against its European sports model. According to the AG, a system of both pre-approval and sanctions is required to uniformly apply rules and common standards in football tournaments in order to maintain the European sporting model.

Thirdly, if the ESL is a true segregated league and the participating clubs are not leagues that also want to be part of the “UEFA ecosystem” and operate in the most favorable way in direct competition with UEFA, then the AG suggests a different scenario. Part of that system of European football. According to the AG, ESL clubs cannot enjoy their rights and benefits within UEFA unless they comply with UEFA’s rules and obligations.^Five It is in line with UEFA’s competition law that UEFA protects its own economic interests and prevents double accession that would risk significantly weakening UEFA.⁶ AG Rantos describes the situation in this case by explaining that ESL is not a competition that does not affect the international calendar or affect the sport’s existing governance structures and organizations ISU) as discussed below. .

Fourth, AG Rantos has differentiated sanctions against football clubs and players participating in the ESL. For example, banning national teams from participating in UEFA national team competitions (e.g. EURO tournaments). Targeting sanctions that include the exclusion of players not involved in the project in question is disproportionate.⁷ In contrast, competition law did not prevent the threat of sanctions against clubs entering new competitions that risk undermining the legitimate objectives of the federations to which they are affiliated.⁸

Despite expressing its opinion on the question of the proportionate nature of the pre-approval system and the threat of sanctions, AG Rantos, in order to establish whether its view of the pre-approval system is a pre-approval system: Leave the assessment of the facts of record to the national courts. The recognition system and threatened sanctions are proportionate in light of the factual, legal and economic circumstances, including the specific characteristics of ESL. Madrid’s national courts may hold a different and less negative view of ESL, which may lead to different results in this effectiveness analysis. AG Rantos found no additional Article 102 concerns. UEFA’s dual role as regulator and organizer at the same time is neither an abuse of a dominant position per se nor contrary to EU competition law.⁹ In fact, the forced separation of the regulatory and commercial activities of sports federations risks being inconsistent with the European sports model, especially with respect to financial solidarity objectives.^Ten

The Case of the International Skating Union: Background

International Skating Union (“Chair) has the dual function of regulating figure and speed skating and organizing international ice skating events. stipulated to be punished. December 2017, European Commission (“EC“) have found that these rules have the purpose of restricting competition.GC“). In its December 2020 judgment, the GC essentially upheld the EC’s decision (see alert here).

ISU AG opinion: AG Lantos recommends setting aside GC decisions

AG Rantos notes that although rules laid down by sports governing bodies are not exempt from competition law, where the restrictive effect of rules is inherent and proportionate to the legitimate objectives sought, they are subject to Article 101. (1) clarifies that it may not be covered by the TFEU;¹¹

The GC found object competition restrictions based on the ISU’s broad discretion to deny approval of ice skating events hosted by third parties. In contrast, AG Rantos argues that his ISU theoretical ability to reject third party ice skating events is not sufficient to classify the act as a restriction of competition. object.¹² Instead, the mechanism’s compatibility with EU competition law can only be established on the basis of an analysis of whether it gave rise to anti-competitive conduct. effect in fact.¹³ In other words, whether a sports federation’s rules are anticompetitive is determined based on the impact of such rules on the relevant market, not on its language.

As in the case of the Superleague, AG Rantos stated that the ISU’s dual role of being regulator and organizer at the same time does not per se entail a violation of Article 101(1) TFEU. I’m here.¹⁴ AG Lantos agrees that it is not anti-competitive for a sports federation such as the ISU to pursue its own economic interests. It only matters when a sports federation unfairly deprives an athlete of market access.¹⁵

AG Rantos suggested remanding the case to the GC for analysis of whether the rules had produced anti-competitive effects.

in conclusion

We are exactly half the time. AG Rantos’ opinions are not binding on the ECJ and his ECJ has the final say. That said, it is statistically likely that ECJ will follow them, as he does in about 80% of all his ECJ cases. Moreover, the final decision may in fact rest with national courts, which have differing views on some of the factual and legal issues that determine the very important impact-related proportionate analysis. There is a possibility that
Taken together, the two statements make the following basic points regarding the relationship between EU competition law and sport:

• Sports governing bodies often act as both regulators and organizers of sporting events. The conflicting nature of such roles is not per se anticompetitive.
• Protecting the economic interests of sports federations is not itself anti-competitive either.
• Due to the recognition of European sports models under EU Primary Law, a special approach may be taken to the sporting world under EU competition law.
• Overall, these two opinions will make it more difficult for third parties to challenge the rules and decisions of incumbent sports bodies.

1 Paragraphs 27-30 of the Superleague Opinion.
2 Paragraph 30 of the Superleague Opinion.
3 Paragraph 93 of the Superleague Opinion.
4 Paragraph 110 of the Superleague Opinion.
5 Paragraphs 106 and 107 of the Superleague Opinion.
6 Paragraph 108 of the Superleague Opinion.
7 Paragraph 146 of the Superleague Opinion.
8 Paragraphs 118 and 123 of the Superleague Opinion.
9 Paragraph 134 of the Superleague Opinion.
10 Paragraph 136 of the Superleague Opinion.
11 Paragraphs 39 and 42 of the opinion of Case C-124/21 P (“ISU Opinion”).
12 Paragraphs 71, 72 and 73 of the ISU Opinion.
13 Paragraph 73 of the ISU Opinion.
14 Paragraph 48 of the ISU Opinion.
15 Paragraph 104 of the ISU Opinion.

Diego Garcia Adanes (White & Case, Legal Trainee, Brussels) contributed to the development of this publication.