European Superleague Company SL v FIFA and UEFA, Case C-333/21, ECLI:EU:C:2023:1011
Court of Justice of the European Union, Grand Chamber, 21 December 2023.
The Court held that FIFA and UEFA’s powers to approve rival interclub competitions and control participation infringed EU competition law where they lacked transparent, objective, non-discriminatory and proportionate limits. The rules also obstructed freedom to provide services. The judgment answered questions referred by a Spanish court; it did not approve the proposed Super League or decide that project’s compatibility with EU law.
The proposed competition and the reference
European Superleague Company SL proposed a new international club competition. FIFA and UEFA opposed the project and warned that participating clubs and players could be excluded from competitions within their system. The company brought proceedings in Madrid challenging their conduct under EU competition law.
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The Spanish court granted interim protective measures and asked the Court of Justice about rules requiring prior approval of new competitions, participation restrictions, threatened sanctions, and control of commercial and media rights. FIFA and UEFA both regulated football and organised and marketed competitions of their own. Their dual role was central to the legal problem.
The questions concerned the governing bodies’ rules and powers, rather than whether the proposed Super League itself would be lawful. The national court remained responsible for applying the Court of Justice’s interpretation and making any further factual checks.
A regulator that also competes in the market
Organising and marketing professional football competitions is an economic activity. Sporting associations undertaking that activity can fall within EU competition law. Sport’s particular characteristics may be relevant when applying the legal tests, but do not create a general exemption.
The Court accepted that common rules could legitimately coordinate competitions within a calendar and support equal opportunities and sporting merit. Prior approval requirements and sanctions were therefore not unlawful simply because they existed.
The problem arose when bodies running their own competitions also had unrestricted power to determine whether competitors could enter the market. Such power could protect their commercial activities from competition. According to the referring court, the rules lacked substantive criteria and procedures capable of preventing that result.
A lawful framework required accessible criteria established before the powers were exercised, transparent procedures, non-discrimination and effective review. Rivals could not be subjected to different requirements, or ostensibly equivalent requirements that were impossible or excessively difficult for an independent organiser to meet. Sanctions also had to be proportionate to matters such as the nature, duration and seriousness of the breach.
The competition-law findings
Under Article 102 TFEU, the Court held that adopting and implementing approval, participation and sanction rules without the required safeguards constituted abuse of a dominant position. The possibility of theoretically organising a competition outside FIFA and UEFA’s system did not answer the problem: their practical control over clubs, players and competitions made viable entry exceptionally difficult.
Article 101(1) addressed the rules as decisions of associations of undertakings. Their discretionary control over rival competitions made them restrictive of competition by object. That classification concerned the nature of the restriction in its context; establishing actual anticompetitive effects was not additionally necessary. Public threats of sanctions implemented the same rules and did not require a separate answer.
The Court distinguished these rules from restrictions that may fall outside Article 101(1) because they are inherent in, and necessary for, a legitimate public-interest objective. That approach did not apply to conduct whose very object was anticompetitive. Invoking sporting values was therefore insufficient to remove the rules from the prohibition.
What would be needed for an exemption
An exemption under Article 101(3) required convincing evidence of all four conditions: efficiency gains, a fair share of the resulting benefits for users, indispensable restrictions, and preservation of effective competition for a substantial part of the relevant products or services. Failure on one condition was enough to defeat the exemption.
For Article 102, the Court rejected objective necessity as a justification for these discretionary powers. An efficiency-based justification likewise required proof that gains counterbalanced the harm, the conduct was necessary to achieve them, and effective competition was preserved. The Court observed that the rules gave FIFA and UEFA the opportunity to prevent all competition in the relevant market. Assessment of the parties’ evidence remained for the Spanish court.
Commercial rights and freedom to provide services
The Court distinguished ownership of competition rights from exclusive control of their marketing. Articles 101 and 102 did not, in principle, prevent rules designating FIFA and UEFA as original owners of rights in competitions they themselves organised. That answer assumed the rules did not claim rights in competitions organised by third parties.
Compulsory, exclusive exploitation raised a different issue. It could remove competition between clubs over rights and affect broadcasters, consumers and viewers. Such arrangements required satisfaction of the exemption or justification conditions. Arguments about lower transaction costs, attractive competition-wide packages and redistribution within football needed supporting evidence. Genuine benefits to each category of users, including viewers, could not simply be assumed.
On free movement, the Court focused on Article 56 TFEU because the rules predominantly concerned providing services through organising and marketing competitions. Discretionary approval powers obstructed that freedom. Legitimate coordination objectives could not justify an approval system lacking objective, non-discriminatory criteria known in advance.
Understanding the outcome
The ruling constrained the governing bodies’ use of regulatory power while recognising that football could have common rules and an approval system. It required safeguards and evidence, rather than accepting sporting objectives as a complete answer. It did not grant an injunction, award damages or decide the Super League project’s legality.
For the earlier application of free-movement law to player transfers and nationality quotas, see Bosman. The subject here was chiefly access to the market for organising competitions, a distinct question from a player’s access to employment.
Source: Full Court of Justice judgment, particularly paragraphs 80–90, 141–152, 179–209, 211–241 and 243–258, and the operative ruling.
