Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

Sports Law Related Decisions


Official Documents and Press Releases

 

In the news

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Upcoming Events

Call for papers - Third Annual International Sports Law Conference of the International Sports Law Journal - 24 and 25 October 2019 - Asser Institute

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the third ISLJ Annual Conference on International Sports Law, which will take place on 24 and 25 October 2019 at the Asser Institute in The Hague. The ISLJ, published by Springer and Asser Press, is the leading academic publication in the field of international sports law. The conference is a unique occasion to discuss the main legal issues affecting international sports with renowned academic experts and practitioners.


We are delighted to announce the following confirmed keynote speakers:


  • Beckie Scott (Chair of the World Anti-Doping Agency (WADA) Athlete Committee, Olympic Champion, former member of the WADA Executive Committee and the International Olympic Committee (IOC)),
  • Ulrich Haas (Professor of Law at Univerzität Zürich, CAS arbitrator), and
  • Kimberly Morris (Head of FIFA Transfer Matching System (TMS) Integrity and Compliance).


We welcome abstracts from academics and practitioners on any question related to international sports law. We also welcome panel proposals (including a minimum of three presenters) on a specific issue. For this year’s edition, we specifically invite submissions on the following themes:


  • The role of athletes in the governance of international sports
  • The evolution of sports arbitration, including the Court of Arbitration for Sport
  •  The role and functioning of the FIFA transfer system, including the FIFA TMS
  •  The intersection between criminal law and international sports (in particular issues of corruption, match-fixing, human trafficking, tax evasion)
  • Hooliganism
  • Protection of minor athletes
  • Civil and criminal liability relating to injuries in sports


Please send your abstract of 300 words and CV no later than 30 April 2019 to a.duval@asser.nl. Selected speakers will be informed by 15 May.


The selected participants will be expected to submit a draft paper by 1 September 2019. All papers presented at the conference are eligible (subjected to peer-review) for publication in a special issue of the ISLJ.  To be considered for inclusion in the conference issue of the journal, the final draft must be submitted for review by 15 December 2019.  Submissions after this date will be considered for publication in later editions of the Journal.


The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 250€). If you wish to be considered for a grant please indicate it in your submission. 

A Reflection on the Second Report of FIFA’s Human Rights Advisory Board - By Daniela Heerdt (Tilburg University)

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands and works as Research Officer for the Centre for Sports and Human Rights. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

 

On November 26th, the Human Rights Advisory Board[1] of the Fédération Internationale de Football Association (FIFA) published its second report. This blog provides a summary and brief evaluation of the report, by drawing a comparison to the previous report issued by the Human Rights Advisory Board (hereinafter: the Board) based on the content of the recommendations and FIFA’s efforts to implement the Board’s recommendations. The third part of this blog briefly reflects on the broader implications of some of the new recommendations issued for FIFA’s internal policies. The conclusion provides five more general points of observation on the report. More...

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

 

1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

Asser International Sports Law Blog | Never let a good fiasco go to waste: why and how the governance of European football should be reformed after the demise of the ‘SuperLeague’ - By Stephen Weatherill

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Never let a good fiasco go to waste: why and how the governance of European football should be reformed after the demise of the ‘SuperLeague’ - By Stephen Weatherill

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

 


The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity.

 

The creature that will not die

What, again?

It is over twenty years since since ‘Project Gandalf’, a plan for a European Football League prepared by Media Partners International, was notified to the Commission (OJ 1999 C70/5). Since then football in Europe has been played with a regular rhythm in the background: the threat of a breakaway ‘SuperLeague’ driven by the richest and most successful clubs. UEFA, the sport’s governing body in Europe, has responded. Alterations made periodically to the structure of its principal and most lucrative club competition, the Champions League, have favoured the interests of the richest and most successful clubs and, in a macabre dance, those changes have typically followed those clubs’ well-briefed grumbling and plotting. And Monday 19 April 2021 was glumly anticipated by football fans as the latest reel around the fountain: UEFA, media reports confidently predicted, would further compromise the structure of its competitions in order to give the richest and most successful clubs more of what they want – more games and firmer guarantees of participation.

But Monday 19 April instead brought the ‘SuperLeague’ clattering out of its murky background as threat and into the harsh light of day as execution. A group of twelve clubs from England, Spain and Italy announced the creation of an entirely new competition which would operate beyond the authority of UEFA. The self-chosen clubs are all rich, though several groan under mountainous debts. There is no plausible world in which this dozen would count as Europe’s undisputed finest in terms of sporting merit: their status is commercially driven. The plans guarantee the long-term participation of the founding clubs, and so would remove the threat of relegation from the new SuperLeague. This is entirely alien to the orthodox model of football Leagues across Europe. And the clubs plan to have their cake and eat it. They intend to play midweek games in the brand new SuperLeague while remaining members of their national associations, and so continuing to play in the Premier League, La Liga and Serie A as well as selected national Cup competitions. But they will no longer play in UEFA’s Champions League, which will therefore be robbed of most of its richest and most successful clubs, and also Arsenal and Spurs.

And then it crumbled.

Within 48 hours of the new competition’s announcement its proponents were racing each other from West London across East Manchester and beyond to see who could put most distance between themselves and a plan which had attracted almost universal derision and dismay. No longer a League from which its founder members could not be relegated, the SuperLeague had turned into a competition from which its clubs were desperate to knock themselves out. This Italian, Spanish and English Job had been intended to cause an explosion within European football, yet they couldn’t even blow the bloody doors off.

Gleeful mockery has its short-term place. This SuperLeague is dead. But the idea behind it and the people who drove it are not. A breakaway league in European football is the creature that will not die. Now is the time to think about the inadequacies of legal regulation of sport in Europe, in order to be prepared to defend the European model of sport the next time that a plan of this disruptive type is advanced, likely with greater strategic cunning. 

 

Why the law is not currently adequate

UEFA was doubly offended by the SuperLeague. The traditional regulatory model of European football was cast aside. No longer would qualification on merit be the sole criterion for participation. The infusion of fresh blood ensured by the system of promotion and relegation would be stopped. UEFA oversight would be precluded. The commercial model of recent years would be gravely imperilled too. UEFA’s Champions League is a spectacular success and provides UEFA with a valuable source of income. The ‘SuperLeague’ is a huge threat.

What could UEFA do?

The key insight is that UEFA is doubly offended because UEFA has a double function. It is a regulatory body but it is also a commercial actor. It protects the structure of the sport but it also makes money out of the sport. Most governing bodies in sport began in the days of well-meaning amateurs, carrying out the task of imposing routine and order on the rules of the game and the conduct of competitions, but in recent years, largely as a result of changes to the regulatory and technological shape of the audiovisual media sector, sport has increasingly become commercially lucrative to a dazzling degree. Governing bodies have typically added these new commercially sensitive functions to their longer-standing regulatory role by an incremental process of accumulation. UEFA, like many governing bodies in sport, sets the rules of the game but it has also become highly profitable. 

This is where and why the application of legal rules to governing bodies in sport becomes awkward. No one doubts that UEFA has a legitimate role. Sport needs a regulator, to set the rules, to impose order on the calendar, to protect the welfare of players and fans, and so on. But equally no one doubts that regulatory choices have direct commercial consequences. If UEFA decides to impose sanctions on those involved in a ‘SuperLeague’ it will be able to present such steps as a means to defend the integrity of the model of sport that has long dominated European practice. But it will stand accused of seeking to promote its own commercial interest in maintaining monopoly control over the Champions League by suppressing the emergence of a new form of competition, a SuperLeague, which might generate high levels of consumer demand and which, if the restless dozen are to be believed, had already generated lucrative financial backing. Both these perspectives contain their truths – regulatory and commercial motivations inevitably overlap in the governance of sport. 

Imagine UEFA had carried through its threats to impose sanctions, which, in their most vigorous form, would have involved banning participating clubs and players from any involvement in football other than the ‘SuperLeague’ itself. To achieve that would involve action not only by UEFA but also the relevant national football associations and, to exclude players form the World Cup too, FIFA. Would EU law oppose a response of this type, designed to protect European football’s traditional structures?

The problem in short is – it is not clear.

There is nothing explicit in EU law that addresses the matter. Sport was not even mentioned in the founding Treaties until as late as 2009, and the provision then inserted, Article 165 TFEU, is programmatic rather than precise. EU secondary legislation on sport is thin and of no relevance to the matter at hand. EU sports law largely comprises the patchwork of decisions of the Court and the Commission which have, since the very first in 1974 (Case 36/74 Walrave and Koch ECLI:EU:C:1974:140), addressed the compatibility of practices in sport with the demands of EU internal market law. This concerned initially the law of free movement, applied in the famous Bosman case (Case C-415/93 ECLI:EU:C:1995:463), and latterly competition law. And it is EU competition law which provides the most obvious objection to UEFA’s desire to take action against the promoters of and participants in a ‘SuperLeague’.

It is necessary to try to sift the existing practice of the Commission and Court to try to piece together an understanding of how EU competition law would apply in these circumstances. Nothing is predetermined. This, then, is already a problem – it is impossible to predict with confidence exactly how far UEFA’s autonomy of action is constrained by EU competition law.

Let us try. The most recent decision in which EU competition law has been applied to sport is also the one that is factually closest to the case of a governing body taking action to protecting its model against third party organisers wanting to offer competing events. It is the International Skating Union decision. 

 

The International Skating Union decision (ISU).

In December 2017 the Commission decided that the eligibility rules of the International Skating Union (ISU) were incompatible with EU competition law, specifically Article 101 TFEU on anti-competitive bilateral and multilateral practices (AT.40208). The Commission’s Decision was upheld on appeal to the General Court, which in December 2020 approved all the key findings made by the Commission (Case T-93/18 International Skating Union v Commission EU:T:2020:610).

The core of the objections in ISU were targeted at the governing body’s treatment of skaters who chose to take part in events that were not approved by the ISU. The ISU had power conferred on it as the sole governing body in the sport recognized by the International Olympic Committee (IOC) to ban such skaters from the Olympic Games and the World Championship. The ISU was able to act, and did act, in a way that protected and promoted the events which it organized at the expense of competing suppliers. The Commission’s Decision reached the conclusion that it reserved to itself powers in a way that exceeded what was necessary for the organization of the sport and for the maintenance of its integrity. It had pursued activities in the global market for the organisation and exploitation of international speed skating events in circumstances where its regulatory function overlapped with commercial motivations. The ISU had – according to both the Commission and the General Court - a conflict of interest. By stretching its activities beyond the regulatory domain into areas which prioritised its own commercial interests at the expense of third parties in the market, the governing body had acted in an anti-competitive manner contrary to Article 101 TFEU. 

The responsible EU Commissioner Margrethe Vestager, commenting at the time on the Commission ISU decision, was eager to treat the ruling as an expression of general principle, not simply one confined to its own particular facts. She explained that where a single federation organises competitions from local to international level according to the global pyramid structure which characterises the governance of most sports, ‘the penalties these federations impose should be necessary and proportionate to achieve’ goals associated with the proper conduct of the sport, but they ‘certainly shouldn't be used to unfairly favour the federation's own commercial interests, at the expense of athletes and other organisers’. 

The ISU Decision shows that EU competition law restrains the autonomy of governing bodies in sport, but the assymetry of power between the ISU and skaters has little in common with the more balanced relationship between UEFA and the biggest football clubs. So, in the search to understand how EU competition law restrains UEFA, ISU is a clue, but not definitive.

 

ISU and past practice

ISU is not a one-off: this is not the only material on which we can draw to understand how EU law affects and restricts UEFA’s options in responding to the SuperLeague. A wonderful book published in 2015 bursts with relevant ideas (K. Pijetlovic, EU Sports Law and Breakaway Leagues in Football). And the structure of the ISU ruling fits comfortably into the EU’s track record in applying EU law to sport. The need for a regulator in sport is acknowledged. A game needs common rules, predictably applied and apt to secure the integrity of competition. But such activities shall not spill over beyond what is necessary for the proper organisation of the sport, and there is special suspicion of systems of governance which are structured or applied in a way that prioritises the commercial interests of the governing body in question. 

In Meca Medina and Majcen v Commission (Case C-519/04P EU:C:2006:492) the Court explained that the compatibility of rules with EU competition law cannot be assessed in the abstract. The legal assessment of practices that have the effect of restricting competition also includes examination of their objectives. The Court decided that the imposition of sanctions for violation of anti-doping rules did not necessarily constitute a forbidden restriction of competition within the meaning of (what is now) Article 101 TFEU, since they were justified by the legitimate objective of preserving healthy sport, though it added that attention would need to be paid in detail to fair procedure and proportionate sanctions. Bosman (Case C-415/93 ECLI:EU:C:1995:463 ), a free movement rather than a competition law case, similarly permits the interpretation of EU law to be informed by the sporting context in which it is applied. So, famously, the Court declared that ‘In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate’. The Court ruled against the particular transfer system of which Bosman had fallen foul because it went too far to apply collectively enforced restraints to the contractual freedom even of players whose contracts had expired. But the Court was plainly receptive to an adjusted regime which addressed the legitimate concerns it had mapped in the ruling. The transfer system was duly amended to apply only to players whose contract has not expired, and it lives on today in that slimmed down form.

There followed Motosykletistiki Omospondia Ellados NPID v Elliniko Dimosio – commonly abbreviated to MOTOE and known as the ‘Greek motorcycling’ case (Case C-49/07 EU:C:2008:376). It was held that ELPA, a body granted legal authority under Greek law to decide whether or not to permit the staging of motorcycling competitions, had violated Article 102 TFEU by running a system in which ELPA itself was engaged in the organisation and commercial exploitation of motorcycling events. The problem was that in the circumstances ELPA had ‘an obvious advantage over its competitors’; its gatekeeping right allowed it to ‘distort competition by favouring events which it organises or those in whose organisation it participates’. 

Article 165(1) TFEU, introduced into the Treaty with effect from 2009, directs that the EU ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function’. But both the Court and the Commission have long been assiduous in interpreting and applying EU internal market law in a way that recognises the legitimate concerns that arise in sport. Article 165 merely codifies that contextual sensitivity. EU law has been shaped according to a model whereby sport enjoys ‘conditional autonomy’ under EU law (see S. Weatherill, Principles and Practice in EU Sports Law, 2017). Governing bodies are able to operate consistently with EU law on condition that they demonstrate why their practices are necessary for the organisation of their sport – to defend its ‘integrity’, as is asserted in ISU. It is when governing bodies reach beyond the sphere of legitimate and necessary regulation that they tend to come into conflict with EU law – for example by applying the transfer rules even to out-of-contract players or by leveraging regulatory power to enhance a position in the market at the expense of commercial rivals. 

 

The legitimate reach of a governing body’s regulatory power

In ISU the objection was not to the role of a governing body acting as gatekeeper, in order to impose order on a sport’s calendar: the objection was to leveraging that regulatory power to achieve commercial advantage. The problem was a conflict of interest between regulatory concerns and profit-making, and it is an endemic problem in sports governance given the rising commercial value of sport alongside a reluctance among governing bodies to establish systems which sharply separate the regulatory from the commercial sphere. 

ISU insists on review of a governing body’s regulatory choices for fear that they may generate anti-competitive consequences. But it does not assume that the supply of competitive sporting events shall become a wholly unregulated market. Neither the Commission nor the General Court in ISU objects to the notion that sports governing bodies shall be able in principle to arrange the calendar, to decide how many events should be permitted, to ensure safety standards are met, and to perform a broader gate-keeping function. The Commission went out of its way in ISU to state that protecting the integrity and good functioning of the sport is a legitimate objective pursued by a governing body and this is confirmed in the ruling of the General Court. So too Commissioner Vestager, reflecting on the Decision, insisted that ‘we're certainly not questioning the right of …federations to do their job of organising the sport’. 

The question: where to draw the line between legitimate supervision and anti-competitive conduct?

 

SuperLeague

Would EU law have precluded UEFA from taking steps to oppose the SuperLeague? 

It is plain that UEFA would gain commercial advantage by killing off the SuperLeague. But the exercise of regulatory power commonly has some commercial consequence – that unavoidable overlap does not take the governing body’s activities over the line. The real issue is whether the exercise of regulatory power is necessary to secure the organisation of the sport.

ISU was an extreme case. The power imbalance between ISU and the skaters was very great; and the penalties envisaged by ISU went beyond any conceivable band of proportionate response. Given the aggressive suppression of third party organisers that was involved, disclosing a clear strategy of furthering the ISU’s own commercial aspirations in staging skating competitions, there was no need for the notion of protecting the ‘integrity’ of sport to be explored in any depth. The Commission and the General Court did not trouble to do so. Meca-Medina too, though the leading case, does not help to tease out the precise boundaries of the zone of legitimate action to police the integrity of sport, because anti-doping procedures plainly fall within it.

UEFA’s position in the face of rebellion by the major football clubs would have obvious distinctions from the situations found in MOTOE and ISU, most of all that its concern to defend the integrity of its existing structures would seem to carry much more weight given that the leading football clubs possess a destructive power which the third parties in MOTOEand ISU did not. The SuperLeague was clearly designed to reduce the Champions League to a sideshow, if not to destroy it altogether. 

Two questions structure the legal inquiry. What legitimate objectives may UEFA defend? And, assuming legitimate objectives have been identified, what are the permissible limits of action designed to defend them?

Once again the problem is that these are not matters set out cleanly in any existing legal texts. But let us try.

Can UEFA adopt measures to secure the integrity of its competitions' ability to produce the one true champion: that is, can UEFA take steps to stop European football looking like boxing? I think this is plausible, and it would justify action designed to ensure that UEFA’s Champions League has a higher profile and greater appeal than any breakaway competition.

Can UEFA adopt measures to suppress a competition where access is not based on merit and/or where promotion and relegation are curtailed: that is, can UEFA take steps to stop European football looking like sports leagues in North America? I think this is also plausible, and it would justify action designed to curtail the viability of any breakaway competition.

UEFA has other plausible legitimate objectives on which it may rely in responding to the threat of a SuperLeague. Protecting the calendar to prevent player overload would belong on this list; so too would protecting the pyramid structure of governance in order to ensure that all competitions are subject to the same rules globally rather than fragmented according to which organiser is in charge; and the re-distribution of income raised at élite level throughout the structure of the sport, in order to achieve some degree of vertical solidarity, is a further relevant concern. 

If (some or all of) those are legitimate aims, then one would need also to check whether UEFA's measures are proportionate and apt to achieve the end in view. The length of any ban would  be legally relevant, so too the breadth of its scope. The harsher the penalty, the less likely it is to survive proportionality-based review - yet of course the harsher the penalty, the more effective it is likely to be. Here too a detailed context-specific analysis would be required, but one may think that sanctions imposed on clubs would be more readily shown to be necessary and therefore justified than sanctions imposed on individual players. 

The implications under competition law would not be limited to measures taken directly by UEFA. The collective sale of broadcasting and other media rights to the UEFA Champions League falls within the scope of Article 101 because it restricts supply (by individual clubs as sellers), but it is permitted on the basis that it generates sufficient economic benefits.  It remains to be seen whether the sale of rights to a SuperLeague would be treated with similar indulgence: its closed nature and the extent to which it shares the proceeds of collective selling with the game more widely might induce sceptical assessment.

A prediction? It seems to me highly plausible in principle that EU law would permit some forms of action taken by UEFA against participants in a SuperLeague which are designed to protect the legitimate interests of a governing body with overall responsibility for its sport, subject to meeting the demands of the principle of proportionality. But one needs to be fully aware that competition law, like high level sport, rarely yields a wholly confident prediction. A SuperLeague will be using it too, to argue that it is injecting fresh competition into the market for sports events and that accordingly it should be protected from sanctions. These are difficult legal arguments, for which both legislative texts and precise case law precedents are wanting.

 

What next?

The contempt directed at the owners of the twelve clubs involved in the breakaway has been torrential. Disdain for VAR unites football fans, but that unwelcome intrusion of technology into the frantic pace of a proper football match is a pimple alongside the wrecking ball arrogance of the SuperLeague. The protests appear to have brought the plan unveiled on Monday 19 April 2021 to its knees. The twelve clubs, it seems, will remain within the existing arrangements and play in the existing competitions. But the biggest clubs have not lost their appetite for inducing UEFA to alter the design of the Champions League to suit their interests better. And although this SuperLeague appears to be dead, the threat of the breakaway league in European football remains the creature that will not die.

The legal and regulatory framework is not adequate to meet such challenges. Consider the frantic response to the SuperLeague. UEFA needed to decide what type of sanctions it would impose, doubtless after – urgent – consultations with national associations and FIFA, and perhaps with national governments minded to legislate too. UEFA needed to seek – urgent – advice from the Commission on its view of the impact of EU competition law on proposed sanctions, even if ultimately the authoritative voice on the meaning of EU law belongs to the Court of Justice. And UEFA was already faced by – urgent – applications to national courts on behalf of the SuperLeague 12 seeking to secure orders restraining the imposition of any penalties.

On all these points the law is not clear. EU competition law does not provide a checklist of sanctions which UEFA may lawfully impose and those which go too far. EU law more generally does not regulate directly the structure of governance in European sport. Nor do national laws provide clear controls. Governing bodies in sport have been largely successful in sheltering their autonomy from legal regulation. The SuperLeague fiasco should prompt a re-think. What is UEFA’s autonomy’s worth, when it is revealed to be so vulnerable to the concerted strategies of the biggest clubs? This breakaway failed, but the creature is not dead, and the next version, more skilfully prepared, might succeed.

 

Re-thinking sporting autonomy

In the past UEFA, jealous of its sporting autonomy, frequently called into question the legitimacy of EU intervention. The judgment in Bosman records that UEFA had requested the Court to order a measure of inquiry under its Rules of Procedure in order to obtain fuller information on the role played by transfer fees in the financing of the game, but the Court, noting that UEFA had haplessly failed to submit this request before the close of the oral procedure, refused. Things have changed. UEFA has come to understand the strategic advantage of keeping the EU, most immediately the Commission, onside.

In 2012 a ‘Joint Statement’ by the EU Commissioner then responsible for competition law, Joaquín Almunia, and Michel Platini, then President of UEFA, declared that the ‘break even’ rule at the heart of UEFA’s system of ‘Financial Fair Play’ is based on sound economic principle and that its objectives are consistent with EU state aid policy (IP/12/264). This ‘Joint Statement’ is not legally binding and its analysis lacks depth, but its very existence demonstrates that UEFA, here also reflecting the interests of Europe’s leading football clubs, has succeeded in getting close to the Commission and securing its informal approval. This strategy of co-operation rather than confrontation also marked the reform of the transfer system after Bosman. In March 2001 the Commission declared it had formalized the matter in an exchange of letters between Mario Monti, at the time the Commissioner for Competition, and Sepp Blatter, President of FIFA (IP/01/314). Pending litigation was settled and brought to an end, and the Commission announced closure of its own investigation in June 2002 (IP/02/824). This has no formal status, and, as with FFP, one cannot exclude that a court would take a different view, but for the time being a co-operative solution prevails. Moreover the involvement of FIFA reminds that the effect of EU law is frequently not confined to EU territory alone. The economic centrality of Europe to many, if not all, sports means that in practice the need to adjust practices to comply with EU law sometimes entails that adjustment operates more widely. EU’s norms become global norms. Note too that since 2014 the Commission and UEFA have had a formal arrangement for co-operation.

For present purposes the principal point of interest is that here the governing body, UEFA, has a real and direct interest not in securing autonomy from EU law but rather in using it to defend its existing model of governance and, most of all, its premier club competition, the Champions League. Pursuit of a more intimate relationship with the EU may involve a diminution of autonomy from regulation but it may the best way for UEFA to protect its autonomy from the avaricious might of the biggest clubs. The EU is an imperfect regulator of sport – it lacks expertise, its competence is not comprehensive, and the geographical boundaries of the EU mean nothing to football. But it will be intriguing to observe whether April 2021’s eruption prompts demands for a more assertive EU, able and willing to move beyond the ad hoc application of competition law and to adopt instead a more proactive role, seeking to establish minimum standards of good governance while ruling out sporting competitions which depart from merit-based criteria for admission. It would – and should – be a chance too for the EU to insist on a more serious commitment to re-distribution of wealth within European football. The biggest clubs have induced the transformation of the Champions League into a competition in which only a small pool of clubs may aspire to reach the later stages, let alone win it, and the disproportionate benefits which attach to mere participation in it have wreaked havoc with competitive balance in smaller national leagues across Europe. UEFA needs EU backing to stop these trends, and to reverse them. This would transform the ‘European Model of Sport’ from windy rhetoric and window-dressing to something more concrete and normative.

Consider too national political processes. In the short term had there been a need to stop the SuperLeague by immediate intervention, then it is national political processes which have the power to act with the necessary speed. Legislation could forbid closed Leagues. A higher level of state intervention in sport would be another threat to UEFA’s autonomy, and would likely be accompanied by pressure to reform its governance, yet it would also provide UEFA with a further means to defend its model from the destructive power unleashed by a SuperLeague. So ‘will politics show its teeth and confer a real-sanctioned monopoly to the football pyramid … [as] a transnational public service?’ (Antoine Duval, April 19 2021). After all, tongue in cheek, ‘political interference with sports is only bad if it goes against governing bodies’ objectives’ (Borja García, April 19 2021).

  

Conclusion

Radical change is often generated by moments of crisis, and it could be that the prime movers behind the ‘SuperLeague’ will come to be seen as having provoked a strengthening, not a weakening, of UEFA’s regulatory and commercial profile. This, however, does depend on UEFA, the EU and national politicians seizing the moment, and acting now to reform governance. They should not assume that because the current crisis is over, business as usual will resume. The unsystematic character of EU competition law should serve to focus attention on the need for broader intervention by the EU in order to protect and improve established systems of governance. Faced by the biggest clubs’ plain disdain for matters of fundamental sporting significance in Europe such as merit-based qualification for competitions and open Leagues with promotion and relegation, UEFA may find the EU a helpful ally: so too it may find a higher level of readiness to intervene in sport at state level serves its purposes. A durable accommodation between sporting tradition and commercially-driven innovation is desperately needed, or else fans can gloomily anticipate the emergence of many more malformed creatures. The creature is not dead.

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