As we reported, according to the court of the European Union, the international (FIFA) and the European football confederation (UEFA) previously decided against the EU law to prevent the creation of the so-called European Super League (ESL). A number of interesting questions arise in connection with the case, for example, what kind of proceedings the Super League initiated against FIFA and UEFA, what is the exact content of the judgment and what does it mean in practice, and perhaps the most important question is whether the decision can be the Super League in the near future. We talked about these questions with dr. Attila Berzeviczi, chairman of the board of FTC Labdarúgó Zrt.

- What kind of court proceeding is commenced by the Super League against FIFA and UEFA?
- The European Superleague Company S.L., a company established by the twelve founder clubs, from which ten clubs have already suspended their participations, sued FIFA and UEFA before the Nr 17 Circuit Commercial Court of Madrid in April 2021. This court has turned to the EU Court with a request for a preliminary ruling in interpretation of EU laws two and a half years ago. The main questions were the following:

Must EU law be interpreted as meaning that that article prohibits the abuse of a dominant position consisting of the stipulation by FIFA and UEFA in their statutes that the prior approval of those entities  is required in order for a third-party entity to set up a new pan-European club competition like the Super League?

Must EU law be interpreted as meaning that those articles prohibit conduct by FIFA, UEFA, which consists of the threat to adopt sanctions against clubs participating in the Super League and/or their players, owing to the deterrent effect that those sanctions may create?

Must EU law be interpreted as meaning that the provisions of the FIFA Statutes are incompatible with those articles in so far as they identify UEFA and its national member associations as ‘original owners of all of the rights emanating from competitions … coming under their respective jurisdiction’, thereby depriving participating clubs and any organiser of an alternative competition of the original ownership of those rights and arrogating to themselves sole responsibility for the marketing of those rights?

- What does the current ruling of the EU Court mean in the case at hand?
- The ruling says that FIFA and UEFA are in a dominant position in the market, and as regards the advantages in terms of efficiency, it will be for those two sporting associations to demonstrate, before the referring court, that efficiency gains can be achieved through their conduct, that those efficiency gains counteract the likely harmful effects of that conduct on competition and consumer welfare on the markets concerned.

As regards the FIFA and UEFA rules relating to the rights emanating from professional interclub football competitions organised by those entities, the Court observes that, given their content, what they objectively aim to achieve in terms of competition and the economic and legal context of which they form a part, those rules are liable not only to prevent any and all competition between the professional football clubs affiliated to the national football associations which are FIFA and UEFA members in the marketing of the various rights related to the matches in which they participate, but also to affect the functioning of competition, to the detriment of third-party undertakings operating across a range of media markets for services situated downstream from that marketing, to the detriment of consumers and television viewers.

The Court holds that the rules on prior approval, participation and sanctions constitute an obstacle to the freedom to provide services enshrined in EU laws. By enabling FIFA and UEFA to exercise discretionary control over the possibility for any third-party undertaking to organise and market interclub football competitions on European Union territory, the possibility for any professional football club to participate in those competitions, those rules tend not only to impede or make less attractive the various economic activities concerned, but to prevent them outright, by limiting access for any newcomer.

These interpretations shall be applied by the Spanish courts during their decision-making. The final judgment in the specific case probably shall be made after many years.

The court has not considered the question whether Super League may be established, or whether it meets to those criteria. There is no such decision that Super League good to go.

- What exactly the ruling stipulates about media rights?
- It is very interesting what the ruling says about these. It is not accidental that none of the parties refers to this.

It says, that it will be for the Spanish court to determine, first, whether the negotiation for the purchase of those rights with two exclusive vendors enables actual and potential buyers to bring down their transaction costs and reduce the uncertainty they would face if they had to negotiate on a case-by-case basis with the participating clubs and, second, whether the profit derived from the centralised sale of those rights demonstrably enables a certain form of ‘solidarity redistribution’ within football for the benefit of all users.

It seems that according this the small clubs may be entitled to more money….

- The Super League shall be established at all, and if yes, at what time?
- It is important to know that for that costs of starting of the Super League the US investment bank JP Morgan would ensure a loan of around EUR 4 billons. This is not a free money, it is a loan. The guarantee of such loan would be an issuance of bonds, against the security of the future media rights revenues. A bank provides a loan if the repayment is assured, and the legal background is clear, and the investors shall purchase bonds if they are satisfied that the payment of the instalments and interests are secured. Since the vast majority of the prime teams would not participate in the Super League at the moment, and the legal situation shall remain uncertain for a while, therefore the start of the Super League is quite unprobeable, and if it will start, its commencement date seems to be very distant in time. I consider it very likely that we will see Real Madrid and Barcelona in UEFA competitions in this season and in the upcoming seasons.