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

New Training - Summer Programme on International sport and human rights - Online - 21-28 May

Since 2022, the T.M.C. Asser Instituut, in collaboration with the Centre for Sport and Human Rights, is organising the first yearly summer course on the intersection of sport and human rights. This 4th edition brings together scholars specialised in the intersection between sport and human rights with professionals working in international sport to ensure respect for human rights. We will explore contemporary human rights challenges in sports, such as the protections of human rights at mega-sporting events, access to remedy in human rights cases within the world of sport, the intersection between human rights and gender rights in international sporting competitions, and many more. 


The programme is designed to provide both deep background knowledge and actionnable insights, which will be relevant to a range of participants committed to defending human rights in international sport, including students, junior researchers, representatives of CSOs, sporting organisations, and athletes. It is structured around half days taking place online meant to accommodate as many participants as possible throughout the world. 


Check out the latest draft programme below and register HERE


Call for Papers - 20 Years of the World Anti-Doping Code in Action - ISLJ Conference 2025 - 6 & 7 November 2025


 


Call for papers

20 years of the World Anti-Doping Code in Action

International Sports Law Journal Conference 2025

Asser Institute, The Hague

6 and 7 November 2025

 

The Editors of the International Sports Law Journal (ISLJ), the Asser Institute and the Research Chair on Responsible Sport of the University of Sherbrooke invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 6 and 7 November 2025 at the Asser Institute in The Hague. The ISLJ, published by Springer and T.M.C. Asser Press, is the leading academic publication in the field of international sports law and governance. The conference is a unique occasion to discuss the main legal issues affecting international sports with academics and practitioners from all around the world. 

 

The 2025 ISLJ Conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004, while also discussing its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025 and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October. The aim of the conference will be to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC.  This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislations) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

 

Reviewing 20 years of implementation of the WADC warrants a special edition of the ISLJ Conference and of the journal, which invites scholars of all disciplines to reflect on the many questions and issues linked with it. We welcome proposals touching on the following subjects (and more): 

  • The governance of the world anti-doping regime
    • The public-private nature of this governance
    • The transparency of this governance
    • The legitimacy of this governance
    • The participatory nature of this governance
    • The role of scientific experts in this governance
  •  The normative content of the WADC and the international standards
    • The strict liability principle 
    • The privacy rights of athletes under the WADC
    • The sanctioning policy under the WADC
    • The role of the international standards in implementing the WADC
    • The compatibility of the WADC with human rights
  • The glocal implementation of the WADC
    • The role of local institutions (NADOs/Labs/NOCs) in the implementation of the WADC
    • The tension between global (WADA) and local (NADOs/Labs/NOCs) in the implementation of the WADC
    • The role of the IFs in the implementation of the WADC
    • The role of the ITA in the implementation of the WADC
    • The role of judicial bodies (national courts, disciplinary committees of IFs, CAS) and their jurisprudence in the implementation of the WADC 
  • The effectiveness of the world anti-doping regime
    • The evaluation and evolution of the effectiveness of the world anti-doping regime in preventing doping
    • The role of the media in unveiling the ineffectiveness of the world anti-doping regime
    • The role of states in hindering the effectiveness of the world anti-doping regime
    • The world anti-doping regime as a regime with a variable geometry of effectiveness
  •  The future of the world anti-doping regime: Revolution, reform or more of the same?
    • Do we need a world anti-doping regime? 
    • If we do, should it be reformed? How? 


Abstracts of 300 words and CVs should be sent no later than 1 June 2025 to a.duval@asser.nl. Selected speakers will be informed by 30 June 2025. The selected participants will be expected to submit a draft paper by 15 October 2025. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. The Asser Institute will provide a limited amount of travel and accommodation grants (max. 350€) to early career researchers (doctoral and post-doctoral) in need of financial support. If you wish to be considered for a grant, please indicate it in your submission.  


Zoom-In Webinar - The Aftermath of the Diarra Judgement: Towards a New FIFA Transfer System? - 20 November - 16:00-18:00 CET

On 4 October, the Court of Justice of the European Union shook the world of football with its Diarra ruling. The decision questions the compatibility of a key provision of the FIFA Regulations on the Status and Transfer of Players (RSTP) with European Union internal market law. The RSTP, and in particular its article 17, are the bedrock of football’s transfer ‘market’ and regulate the conditions for the transnational movement of players between clubs. In 2023, based on FIFA’s numbers, 21 801 players were transferred internationally (of which 3279 with a fee) for transfer fees amounting to USD 9.63 bn. In short, this is a market that affects a considerable number of players and is linked with the movement of large sums of money between clubs and other actors (such as intermediaries).

Register HERE

Join us on 20 November from 16:00 to 18:00 CET to take stock of the ruling's impact and discuss the steps ahead in a free Zoom-In webinar in which there will be time for a Q&A session with the speakers. The ruling has already been much commented on (see hereherehere, and here), and this zoom-in webinar will be an opportunity for participants to engage with two experts on the economic and legal intricacies of the regulation of labour relations in football. We will mostly focus on the aftermath of the judgment and the question, 'what comes next?'

Moderator: Marjolaine Viret (Université de Lausanne)

Speakers: 


Register HERE

Free Webinar - The impact of the Diarra case on the football transfer system - 18 October 2024 - 15:00 CET

The Court of Justice of the European Union has recently handed down its judgement in the Lassana Diarra case (C-650/22 FIFA v. BZ).

Given the importance of this case to the sports industry, LawInSport, the Asser Instituut and the Association for the Study of Sport and the EU (Sport & EU) are hosting a joint webinar to bring together experts to unpack and provide clarity on the complex legal, regulatory & commercial issues stemming from this case. This free webinar will be hosted from 14:00 UK time (15:00 CET) on 18 October 2024.


Register HERE 


Speakers

Our expert speakers come from academia, law and sport. Our confirmed speakers are:


Register HERE 

Conference - ISLJ Annual Conference 2024 - 24-25 October - Asser Institute - The Hague

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

Register HERE

Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

Download the full programme 

Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

Register HERE

Speakers 


Register HERE


Conference - Empowering athletes’ human rights: Global research conference on athletes’ rights - Asser Institute - 23 October

The newly launched ‘Global Sport and Human Rights Research Network’, an initiative jointly hosted by the T.M.C. Asser Instituut and the Centre for Sport and Human Rights, together with the European Union-funded project ‘Human Rights Empowered Through Athletes Rights (H.E.R.O.)' is organising an in-person conference on October 23 at the Asser Institute in The Hague, to map the field of athletes' rights and engage in critical discussions on protection of these rights and how to prevent rights violations.

The one-day conference will kick off with a presentation by the H.E.R.O. team on their research results, followed by a short panel discussion. The rest of the day will be filled with four panels on different aspects related to the topic of athletes’ human rights, with speakers from academic institutions around the world.

Check out the full programme HERE and register for free HERE

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Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

 

Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

 

 

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see herehere and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

Editor's noteElla Limbach is currently completing her master’s degree in International Sport Development and Politics at the German Sport University Cologne. Her interests include human rights of athletes, labour rights in sport, the intersection of gender, human rights and sport and the working conditions in women’s football. Previously, she graduated from Utrecht University with a LL.M in Public International Law with a specialization in International Human Rights Law. This blog was written during Ella's internship at the Asser Institute where she conducted research for the H.E.R.O. project. The topic of this blog is also the subject of her master's thesis.

Women’s football has experienced exponential growth over the past decade, though the professionalization of the women’s game continues to face barriers that can be tied to the historical exclusion of women from football and insufficient investment on many levels. While attendance records have been broken and media coverage has increased, the rise in attention also highlighted the need for special accommodations for female footballers regarding health and safety at the workplace. Female footballers face gender specific circumstances which can have an impact on their health such as menstruation, anterior cruciate ligament (ACL) injuries and the impact of maternity. As the recent ILO Brief on ‘Professional athletes and the fundamental principles and rights at work' states “gender issues related to [occupational health and safety] risks are often neglected (p. 23).” While it could be argued that from a human rights point of view article 13(c) of the Convention on the Elimination of Discrimination of Women stipulates “the right to participate in […] sports [on an equal basis to men],” reality shows that so far practices of men’s football were simply applied to women’s football without taking into consideration the physiological differences between male and female players and the implications that can have for female players’ health. The ILO Declaration on Fundamental Principles and Rights at Work(ILO Declaration, amended in 2022) includes “a safe and healthy working environment” as one of the fundamental rights at work (Art. 2e). This begs the question whether the scope of the right to occupational health and safety at the workplace includes the consideration of female specific health issues in women’s football. More...

The International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. 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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