Avocate General Rantos supports UEFA in its defence of the European Sports Model

On 15 December 2022, Advocate General Athanasios Rantos delivered his Opinion in case C-333/21 European Superleague Company. The Opinion focuses on the compatibility of UEFA's pre-authorisation procedure and disciplinary sanctions regime with Articles 101 and 102 of the Treaty on the Functioning of the EU (TFEU). This Opinion marks the last step before the European Court of Justice's (ECJ) judgment.

The European Super League (ESL) was announced on 18 April 2021 by 12 of the European biggest football clubs (representing together 68% of the top 20 clubs' revenues). The project was to establish an essentially closed competition under which the participation of the founding clubs was guaranteed irrespective of sporting performance. Only a handful slots were available for all remaining European clubs.

The idea was for the founding clubs to replace their participation in the Champions League by this new competition, whilst remaining in their national clubs competitions. Other clubs in these national competitions would not have access to the SuperLeague. 

The organisation of football club competitions is currently subject to prior authorisation by football governing bodies (i.e., FIFA, UEFA and/or the relevant national football associations, based on each body's territorial competence) to ensure all tournaments are organised in accordance to common overarching international standards. Similar pre-authorisation rules are applied in many other sports.

The essentially closed character of the ESL made it incompatible with the principles of sporting merit and open competitions as enshrined in UEFA's statutes and Article 165 TFUE.  Before UEFA was even asked to authorise the project, proceedings were initiated by ESL against FIFA and UEFA before a Madrid Court in parallel to the announcement of the project. The purpose of these proceedings was to avoid such constraints and prevent any potential disciplinary actions against the founding clubs.

On the same day, the Madrid Court acting ex parte referred the case to the ECJ under the preliminary ruling procedure, with questions focusing on the compatibility of UEFA's pre-authorisation procedure and disciplinary sanctions regime with Articles 101 and 102 TFEU.

The proceedings at both national and ECJ level continued despite the ESL project collapsing within days of its announcement in the face of strong opposition from the football community and public authorities. In July 2022, a hearing before the ECJ was held. Both the Commission and  23 EEA Member States endorsed UEFA's position as the body responsible for European football and emphasized the role of its pre-authorisation system in the protection of the European Sports Model.

On 15 December 2022, Advocate General Athanasios Rantos delivered his non-binding Opinion on the case.

The Opinion highlights the importance of the European Sports Model and the special role played by sports governing bodies such as UEFA, recognised at Article 165 TFEU. 

In line with the MOTOE case-law, Advocate General Rantos concludes that sports governing bodies such as UEFA do not infringe EU competition rules by putting in place pre-authorisation systems ensuring all competitions respect common overarching standards, nor by guaranteeing their effectiveness by means of a sanctions regime, provided the Wouters/Meca Medina conditions are met. 

As necessarily follows from the nature of the preliminary ruling procedure, the Opinion refers the analysis of whether UEFA's pre-authorisation system fulfils the Wouters/Meca Medina conditions to the national court. However, it clearly hints at the legitimate, necessary and proportionate character of UEFA's procedure, and of its response in the face of the ESL project announcement.

Advocate General Athanasios Rantos' Opinion marks the last step of the preliminary ruling proceedings before the ECJ delivers its judgment answering the questions referred by the Madrid Court.

Ashurst is acting as legal counsel to UEFA in the ECJ and national proceedings. The Ashurst team is led by Brussels competition partners Denis Waelbroeck and Donald Slater.