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.