Editor's note: Rhys was an intern at the T.M.C. Asser Institute. He now advises on investments and Notre acquisitions in sport (mainly football) via Lovelle Street Advisory. Following a career as a professional athlete, Rhys has spent much of his professional life as an international sports agent, predominantly operating in football. Rhys has a Bachelor of Laws (LL.B) and a Bachelor of Philosophy (B.Phil.) from the University of Dame, Sydney, Australia. He is currently completing an LL.M at the University of Zurich in International Business Law / International Sports Law.

Having looked at the different types of investors in football in part one of this two-part blog series, “A non-exhaustive Typology”, it is fitting to now consider the regulations that apply to investors who seek to build a portfolio of football clubs.

One way to measure the momentum of a particular practice and how serious it ought to be taken, might be when that practice earns its own initialism. Multi-club ownership or MCO as it is increasingly known today, is the name given to those entities that have an ownership stake in multiple clubs. Within the little research and writing that has been undertaken on the topic, some authors submit that investors with minority stakes in multiple clubs ought not to be captured by the MCO definition.  This position appears problematic given some of the regulations draw the line at influence rather than stake.

There are now approximately 50 MCO’s across the football world that own approximately 150 clubs.^[1] Given the way MCO is trending, one might consider it important that the regulations keep up with the developing MCO practice, so as to ensure the integrity of football competitions, and to regulate any other potentially questionable benefit an MCO might derive that would be contrary to football’s best interests.

In this blog, I focus on the variety of ways (and levels at which) this practice is being regulated.  I will move through the football pyramid from member associations (MA’s) to FIFA, laying the foundations to support a proposition that FIFA and only FIFA is positioned to regulate MCO.

i)               The Cases that Shaped the MCO Regulatory Landscape

The ENIC and Red Bull cases essentially shaped MCO regulations, at least for UEFA.  For a comprehensive analysis of the cases, I would encourage one look at both “Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC Saga” and “Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case” by Tomáš Grell.

ENIC CASE[2]

The ENIC case featuring proceedings before the Court of Arbitration for Sport and before the European Commission, made its way to such bodies because London Stock Exchange listed entity, ENIC (English National Investment Company), owned stakes in both AEK Athens and SK Slavia Prague, that were set to play in the same UEFA club competition. At that point in time, UEFA had adopted regulations that made entry to UEFA club competitions conditional upon a club having not (i) held or been dealing in the securities or shares; and refrained from (ii) being a member; (iii) being involved in any capacity whatsoever in the management, administration, and/or sporting performance; and (iv) having any power whatsoever in the management, administration and/or sporting performance - of any other club participating in the same UEFA club competition. Furthermore, an individual or entity was prohibited from exercising control over more than one club participating in the same UEFA club competition.

The Committee for the UEFA Club Competitions had initially ruled that only SK Slavia would take part in the 1998/99 UEFA Cup. Not satisfied with that ruling, on 15 June 1998, AEK Athens and SK Slavia Prague filed a request for arbitration with CAS and simultaneously sought interim relief which was given, allowing both clubs to compete in the 1998/99 UEFA Cup. On 20 August 1999 however, the CAS held that the Original Rule was valid and that UEFA could apply the rule moving forward. Given the blow this dealt to ENIC’s football business strategies, on 18 February 2000, ENIC lodged a complaint with the European Commission and argued anew that the UEFA rules were contrary to EU competition law. The Commission was satisfied that the Original Rule was valid in that it sought to protect the integrity of UEFA competitions, rather than to restrict competition, hence seeing no violation of the relevant EU competition laws.

RED BULL CASE[3]

The current rules encapsulated in Article 5 of the UCL Regulations are distinct from the Original Rule in that one of the standards that would render a club unable to participate in a UEFA competition is if an individual or entity is able to exercise by any means a “decisive influence” in the decision-making of more than one club in that competition.

In 2017, RB Salzburg and RB Leipzig had both secured places in the 2017/18 UCL. Not long after, the UEFA General Secretary expressed concern with the Club Financial Control Body (CFCB), and the Adjudicatory Chamber of that body agreed that the clubs had failed to satisfy the criteria set out in the rules. The substantial levels of sponsorship received by Red Bull and certain individuals linked to the decision making of both clubs inter alia, were flagged as reasons for breaching the threshold.

However, and following some quite deliberate and specific changes, the CFCB Adjudicatory Chamber accepted compliance reports that RB Salzburg had cut ties with certain individuals, reduced the amount of sponsorship money paid by Red Bull and were satisfied that a cooperation agreement between the two clubs had been terminated.  The CFCB Chief withdrew his objection and RB Salzburg and RB Leipzig were admitted to the 2017/18 UCL.

ii)              Member Associations and Motives

Whilst one could simply list the national association’s MCO regulations, the reality is that for the MA’s that have express regulations, they are largely of a similar flavour to that of their Confederation. One might find the varying motivations of MA’s in enacting MCO regulations of more interest. One key feature is that some of the MA’s regulate based on MCO within their own nations, and some concern themselves with MCO even outside of the nation in which the MA governs football. This is where an MA’s motivations are evident.

Scotland

Scotland for instance, regulates MCO via Article 13 of the Articles of Association of the Scottish Football Association and refers to the section as “Dual Interests in Clubs”.[4]  It is understood that Scotland have a high standard when it comes to MCO, so as to ensure that its competition does not become the reserve competition to the English Premier League or another larger league.  With that in mind, one can then understand why Mike Ashley’s attempt to increase an already 8.92% to 29.9% shareholding of Rangers FC was rejected. The Newcastle United owner was not given written permission as is required per Article 13, as he had signed an agreement that he would not own more than 10% of the club and would not exercise influence on the board.

"The Board, under Article 13 of the Scottish FA Articles of Association, is required to have due regard to the need to promote and safeguard the interests and public profile of association football, its players, spectators and others involved with the game. This test is set out in full in Article 13.6."

Italy

Not too long ago, one was free to own more than one club in Italy (i.e. Aurelio De Laurentiis’ ownership of S.S.C. Napoli and S.S.C. Bari), but in recent months MCO in the Italian context has been headline material, with U.S. Salernitana 1919 promoting to the Serie A, a club owned by Claudio Lotito who also owns S.S. Lazio. The newly enacted Article 16 bis of the NOIF FIGC provides that an individual or entity cannot own two or more clubs in Italy, in the same competition.  On Thursday 30 September 2021, the FIGC announced that ownership of more than one professional club would be prohibited, “for those companies that should rise to Lega Pro from the Serie D” (translated), and multi-club owners would need to sell their (other) clubs “by the beginning of the 2024/2025 season”.

The result of this is retroactive in effect and one can reasonably suspect that the legal teams for these wealthy multi-club owners will be instructed to explore all options for a favourable outcome in courtrooms and other relevant decision-making bodies. One can simultaneously hold a view that MCO ought to be regulated, and concede that, when these owners bought these clubs, they did so on the representation that it was legal and they were free to do so. A forced sale as opposed to a willing sale distorts the market and what a willing buyer and willing seller would have otherwise settled on for a purchase price.  Flowing from the above, club owners can expect well below market rate offers, as has been the case reportedly with Salernitana, given they must sell. 

iii)             The Confederations

Most of the MCO regulations of Confederations refer to the concern of jeopardisation of the integrity of a match or competition. The regulations largely capture the substance of Article 20(2) of the FIFA Statutes which will be expanded upon below. For instance, the OFC regulation found at Article 15 (3) of the OFC Statutes, states that  ‘Member Associations shall ensure that no natural or legal person (including holding companies and subsidiaries) exercise third-party control in any manner whatsoever (in particular through a majority shareholding, a majority of voting rights, a majority of seats on the board of directors or any other form of economic dependence or control etc.) over more than one club or group whenever the integrity of any match or competition could be jeopardised.’  One will find almost verbatim, the same provision at Article 12(3) of the CAF Statutes and at Article 17(3) of the CONCACAF Statutes.

There is a distinction to be made however at confederation level, between MCO regulations applying specifically to the MA’s that fall under the Confederations, or to competitions hosted by the Confederation. Given the noise both the ENIC and Red Bull cases made, the most renown MCO regulations are those that apply to UEFA competitions, but consider also how CONMEBOL prohibits multi-club ownership in its competitions. Article 7(f) of the CONMEBOL Statutes provides that natural or legal persons cannot control more than one club. Perhaps an extension, “CONMEBOL’s Club Licensing Regulations establish as a requirement that, to participate in CONMEBOL Libertadores and CONMEBOL Sudamericana tournaments, license applicant clubs must submit a legally valid declaration if one: Owns or trades titles or securities of any other club participating in the same competition; or, b) Owns the majority of the shareholder voting rights of any other club participating in the same competition; or, c) Has the right to appoint or dismiss most of board or management or department members of another participating club in the same competition; or, d) Is a shareholder and controls most of the shareholder voting rights of shareholders in any other club participating in the same competition in accordance with an agreement signed with other shareholders of the relevant club; or, e) Belongs to the leadership structure of any other club participating in the same competition; or, f) Is involved in any quality in the management, administration and/or sporting performance of any other club participating in its competition; or, g) Has any power in the management, administration and/or sporting performance of any other club participating in the same competition.” 

The AFC regulates at both confederation club competition level, and via its club licensing regulations. The Entry Manual of the AFC Club Competitions provides as a condition of entry, at section 9.12: To ensure the integrity of an AFC Club Competition: no participating club may, either directly or indirectly, hold or deal in the securities or shares of any other participating club; be a member of any other participating club; be involved in any capacity whatsoever in the management, administration and/or sporting performance.

Article 19 of the AFC’s Club Licensing Regulations provides that a Licence Applicant must submit a legally valid declaration outlining the ownership structure and control mechanism of the club. These regulations prohibit a natural or legal person involved in the management, administration and/or sporting performance of the club, either directly or indirectly: a) holds or deals in the securities or shares that allows such person to exercise Significant Influence in the activities of any other club participating in the same competition; b) holds a majority of the shareholders’ voting rights of any other club participating in the same competition; c) has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of any other club participating in the same competition; d) is a shareholder and alone Controls a majority of the shareholders’ voting rights of any other club participating in the same competition pursuant to an agreement entered into with other shareholders of the club in question; e) is a member of any other club participating in the same competition; f) is involved in any capacity whatsoever in the management, administration and/or sporting performance of any other club participating in the same competition; and g) has any power whatsoever over the management, administration and/or sporting performance of any other club participating in the same club competition.

When it comes to UEFA, MCO regulation is found throughout the so-called “UEFA Regulatory Framework”.  This includes the UEFA Statutes (Edition 2020), the UEFA competitions regulations, in particular the Regulations of the UEFA Champions League 2018-21 Cycle (2020/21 season) and the Regulations of the UEFA Europa League 2018-21 Cycle (2020/21 season), and the UEFA Club Licensing and Financial Fair play Regulations (Edition 2018).

The UEFA Statutes capture both the objectives of UEFA and the obligations of its MA’s, with a strong emphasis on the frequently referred to concern with MCO - issues of integrity. Then, within The Regulations of the UEFA Champions League, sits at Article 5 - Integrity of the competition / multi-club ownership.  This covers integrity of competition again and sets a criterion in order for a team to be eligible for UEFA competition, much the same flavour of regulation seen throughout the rest of the Confederations regarding ownership and control, but with the all-important test at Art.5 – 5.01(c) (iv)  No individual or legal entity may have control or influence over more than one club participating in a UEFA club competition, such control or influence being defined in this context as: being able to exercise by any means a decisive influence in the decision-making of the club.. 

FIFA reported that as of 2018, just 33 % of MA’s had regulatory provisions for MCO’s. The percentage of MA’s within the Confederations that regulate MCO is as follows:

• Confederation of North, Central America and Caribbean Association Football (CONCACAF) – 19%
• Oceania Football Confederation (OFC) – 22%
  
• Confederation of African Football (CAF) – 22%
• Asian Football Confederation (AFC) – 33%
• South American Football Confederation (CONMEBOL) – 50%
• Union of European Football Associations (UEFA) – 50%

What these figures might uncover is a gap in how serious MCO ought to be taken, between the Confederations and the MA’s, and that the perceived threat MCO posed to the integrity of competitions at the time these MA regulations were enacted was minor. Confederations might want to take a firmer proactive rather than reactive approach with MA’s, given the speed at which the MCO phenomenon has gained momentum. That is if one concludes that MCO regulation ought to lie with the Confederations.

Whilst MCO might not give rise to an issue for many nations (yet), the MCO environment of countries like Mexico, (1/3 of the clubs in the Liga MX are part of a domestic MCO arrangement, to say nothing of those same owners stake and influence in Mexican media and broadcast) where there are regulations in place at both MA and Confederation level, flies in the face of both the Mexican FEMEXFUT regulations and CONCACAF regulations. Might this highlight that FIFA and only FIFA can regulate this practice?

iv)             FIFA & MCO Regulation

FIFA does not expressly regulate MCO, assumingly as clubs are not its direct remit. Though through some interpretative effort, FIFA imposes an obligation on its MA’s to regulate MCO. In the FIFA Statutes at Article 20 (2), “Status of clubs, leagues and other groups of clubs”, it reads:

Every member association shall ensure that its affiliated clubs can take all decisions on any matters regarding membership independently of any external body. This obligation applies regardless of an affiliated club’s corporate structure. In any case, the member association shall ensure that neither a natural nor a legal person (including holding companies and subsidiaries) exercises control in any manner whatsoever (in particular through a majority shareholding, a majority of voting rights, a majority of seats on the board of directors or any other form of economic dependence or control, etc.) over more than one club whenever the integrity of any match or competition could be jeopardised.

Another way of looking at how FIFA may regulate MCO, is an obligation it places on the confederations at Article 23 (g), “Confederations’ Statutes”, it reads: 

The confederations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters:

(g) regulation of matters relating to refereeing, the fight against doping, club licensing, the imposition of disciplinary measures, including for ethical misconduct, and measures required to protect the integrity of competitions.

As one will notice, the protection of the integrity of competitions does not quite warrant its own sub-section of Article 23, and instead is heaped in with matters such as refereeing and doping. Article 20 might have more clout, but given the influx of MCO and investment in football in modernity, one can reasonably wonder if the regulations suffice.  

Article 20(2) of the FIFA Statutes (formerly Article 18(2)) has been considered to a degree at the Court of Arbitration for Sport. Though where it has, for instance in CAS 2014/A/3523 Club de Fútbol Atlante S.A. de C.V. v. Federación Mexicana de Fútbol (FMF) & Club Atlas F.C., the findings uncover that Article 20(2) cannot be relied upon for clarity, in terms of the jeopardisation MCO poses to the integrity of football matches or competitions.

“The FIFA rule on multiple ownership is not absolute but is based on a case-by-case assessment of the jeopardy caused to the integrity of football matches or competitions. Whether or not the integrity of a match or competition is jeopardised is a very intricate assessment which necessarily must be based on profound knowledge of the match or competition in question.”[5]

Whilst the case is not exclusively about the relevant integrity of competitions article within the FIFA Statutes, the appellant was unable to successfully argue the point that two clubs in the same league belonging to the same owner poses a serious threat to the competition (via the then Article 18(2) of the FIFA Statutes and the identical Article 7(m) of the CONCACAF Statutes) as it was unable to convince the Panel that the integrity of the Liga MX was indeed actually jeopardised.

The CAS in this instance was merely making a decision per its reach, but one struggles to imagine that any football governing body would want to take the position and to regulate so as to suggest that MCO within competitions does not “necessarily” raise integrity issues. Perhaps an extreme analogy, but that would be like concluding that doping is not “necessarily” performance enhancing and a case-by-case intricate assessment is needed to determine whether an advantage was actually attained.  Some threats to integrity require the preventative approach be captured in the regulations and the above case highlights that the articles regarding MCO found in the FIFA Statutes are insufficient and have probably not kept pace with the MCO phenomenon. A further reasonable question one might ponder, is what the reaction to the above case might have been if the clubs were UEFA based?

v)               Concluding remarks and why FIFA must assume MCO Regulations

MCO is a transnational phenomenon with no clear integrated or uniform regulatory framework and rather, a fragmented landscape, as one might reasonably expect when MCO regulation is left to the many Confederations and MA’s.  MCO regulations as they stand may have sufficed in yesteryear when football was not the target of such investment for direct financial return, branding in the case of company investment, or the branding and soft power strategies of nations – evidently the prime motivations for establishing an MCO. 

FIFA regularly offsets the negative news stories it attracts, with reference to growing the game globally. If FIFA is to cash in on the growing the game globally narrative, it surely has an obligation to regulate when that global growth produces integrity issues to football, as is the case with MCO. If one accepts that MCO is a transnational phenomenon and in turn a global issue, and that it does raise concerns in regard to the integrity of football inter alia, then it is difficult to see what body other than FIFA is best positioned to deal with the MCO phenomenon.

There are other reasons of significance as to why this should lie with FIFA as well. For instance, the MCO phenomenon also affects FIFA’s training rewards systems that it has gone to considerable lengths to attempt to fine tune (i.e. the establishment of the Clearing House). With players moving between clubs within the same MCO for free, many transfers will not trigger the trickledown effect they may have otherwise had players transferred for market rates. Another concern for FIFA might be player trading within an MCO being used as accounting tactics to avoid triggering Financial Fair Play issues, rather than a transfer representing the market value of the player.

Player welfare issues also arise, as do employment law questions.  It is already the case that there are clauses in player contracts where a player cannot refuse to be transferred to another club within an MCO if so requested (or demanded), which is in effect an MCO contract, rather than a club contract. Even when clauses of this nature are not inserted within an MCO club player’s contract, there are concerns when players are groomed within an MCO ,given the clubs have considerable time with players and a unique dynamic exists within MCO given common ownership, where a club is incentivised to persuade the player to remain within the group, when the best move, career, financial or otherwise, may be elsewhere. This is an entirely different dynamic to a player weighing up his or her transfer options and seeking professional advice from an agent and/or lawyer.  There are also instances where an MCO has only allowed a move internally and refused a transfer to another club and potentially better option for the player, raising  the ever-recurring freedom of movement questions. These instances are of course rare (for now), but real implications that need attention from football’s global governing body.

The increased globalisation of the game through creations like the UEFA Conference League and FIFA also expanding the Club World Cup, significantly broadens the number of clubs that may face each other, which increasing the risks that MCO presents. The obligations FIFA imposes on its MA’s and Confederations are not observed across the board, and are consequently not sufficient to keep pace with the burgeoning MCO phenomenon. FIFA can no longer simultaneously celebrate the globalisation of football, and defer on definition and regulation downwards in the football pyramid, when it comes to a product of that globalisation; Multi Club Ownership.

[1] I have added to the approximate figure mentioned in the hyperlinked article, to account for some recent acquisitions.

[2] CAS 98/200 AEK Athens and SK Slavia Prague / UEFA & Case COMP/37 806: ENIC / UEFA [2002] Commission

[3] CFCB Adjudicatory Chamber AC-01/2017 RasenBallsport Leipzig GmbH and FC Red Bull Salzburg GmbH

[4] DUAL INTERESTS IN CLUBS 13.1 Except with the prior written consent of the Board:- (a) no club or nominee of a club; and (b) no person, whether absolutely or as a trustee, either alone or in conjunction with one or more associates or solely through an associate or associates (even where such person has no formal interest), who:- (i) is a member of a club; or (ii) is involved in any capacity whatsoever in the management or administration of a club; or (iii) has any power whatsoever to influence the management or administration of a club, may at the same time either directly or indirectly:- (a) be a member of another club; or (b) be involved in any capacity whatsoever in the management or administration of another club; or ARTICLES OF ASSOCIATION 69 (c) have any power whatsoever to influence the management or administration of another club

[5] CAS 2014/A/3523 Club de Fútbol Atlante S.A. de C.V. v. Federación Mexicana de Fútbol (FMF) & Club Atlas F.C., at 88

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules.

Background

Certain aspects of FFP were incredibly controversial from the outset. To a neutral observer, this might seem confusing: FFP is, ostensibly, a set of rules designed to make sure clubs pay their bills on time, stay solvent, and do not need to look to external benefactors to cover their losses. Leading sports economist Stefan Szymanski described insolvency as “a chronic problem in the world of professional Association football”, so, superficially at least, a regulatory response to this would seem natural and appropriate. Where the market fails, it is the regulator’s duty to respond.

UEFA’s President at the time, Michel Platini, said “You, we, the fans and football lovers, have no interest in seeing clubs, the real heritage of European football, disappear due to risky management”. This is a sentiment with which most fans would agree.

Accordingly, UEFA incorporated FFP into its existing licensing requirements, meaning any club that wished to compete in a UEFA competition would be required to meet the financial standards set by FFP. These standards would be overseen and enforced by a new body within UEFA’s administration called the ‘Club Financial Control Body’. The Club Financial Control Body would be further segregated into an Investigatory Chamber and an Adjudicatory Chamber.

So, why the controversy? The contentious aspect of FFP was its ‘break even’ requirement. The ‘break even’ requirement is a de facto soft salary cap, tying the maximum amount a club can spend (with defined exceptions) to its revenue generation. An overview of the break even requirement as originally conceived can be found here. In essence, “The break-even result for a reporting period is calculated as relevant income less relevant expenses’’.^[1] “Income” includes receipts such as gate receipts, sponsorship, broadcasting rights, commercial activities and player sales; “expenses” includes wages, the cost of purchasing players and the cost of finance.^[2]

Crucially, when FFP was first introduced, losses could not be met or offset by equity participants (i.e. owners). This was pertinent to the prevailing financial climate in football, in which certain clubs across Europe were spending unprecedented sums with the support of wealth benefactors, who would cover the clubs’ losses. Such spending was seen at clubs such as Chelsea, Manchester City, Paris Saint Germain, Monaco, Malaga and Anzhi Makhachkala, with mixed results on and off the pitch.

Thus FFP was accused of calcifying football’s competitive hierarchy^[3] and foreclosing smaller clubs from sporting and consequent business success. This debate has been played out over the last five years in the academic literature^[4] and in various legal fora. The rules and the mechanisms for enforcing the rules have become increasingly sophisticated as the years have passed. UEFA, perhaps in response to these challenges, has made gradual, iterative changes to FFP that have seen the rules soften to accommodate exogenous equity input in defined permissible circumstances. These changes will be looked at in greater depth in Part Three.

The challenge of EU law

FFP has been described ‘legally fragile’, which is an apt description. This is because the rules cannot be said to be unquestionably permissible under European Union (EU) law; nor can they be said to be categorically in breach of EU law. The rules exist in a regulatory ‘grey’ area – FFP, in its particularly in its original, more restrictive, guise, may or may not have been illegal. This is a question for a competent (judicial) authority to decide; however, as will be discussed in more detail in Part Two, the route to such a decision has been far from straight forward, and in the intervening years, FFP has changed substantially.

The essential legal questions to determine the legality of FFP are:

1. Does FFP breach EU competition law?
2. Does FFP breach EU free movement law?
3. Is there a sanctuary for any breach of EU law under the doctrine of the specificity of sport?

EU competition law

Article 101 of the Treaty of the Functioning of the European Union (TFEU) prohibits agreements that have as their object or effect “prevention, restriction or distortion of competition within the internal market”.^[5] This puts regulatory associations such as UEFA in a difficult position. It is the very nature of regulation that competition is restricted or distorted; indeed, it is the very purpose of regulatory rules that participants subject to those rules alter their behaviour accordingly, which has an inevitable consequence on the competitive landscape.

Consideration should also be given to Article 102 TFEU, which prohibits undertakings (and in some circumstances collections of undertakings, i.e. oligopolies) that are in a dominant position from abusing their market dominance.

In view of this friction, the European courts have developed, through the case of Wouters, the concept of regulatory ancillarity.^[6] This is the doctrine under which, subject to a test of proportionality, reasonability and necessity, even in circumstances where there is a prima facie breach of competition law by a regulatory body (in that particular case by the Dutch Bar Association), this may be permissible under EU competition law where the regulatory body in question “could reasonably have considered that that regulation, despite the effects restrictive of competition that are inherent in it, is necessary for the proper practice of the [relevant profession]”.

The applicability of Wouters to a sporting regulatory context is confirmed and clarified in the landmark Meca-Medina case. In considering whether a regulatory rule breaches competition law, the European courts must determine: 

1. Whether the rules are necessary for the proper conduct of the sport;
2. Whether the penalties are inherent to the restrictions in questions; and
3. Whether the effects of the rules are proportionate to the aims pursued.

Should UEFA be unable to meet the test under the regulatory ancillarity doctrine, there is an alternative exemption with a lower threshold to which it could look. Within Article 101(3) TFEU, there is an exemption for agreements which promote “technical or economic progress, while allowing consumers a fair share of the resulting benefit” as long as such restrictions do not (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; or (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

It is open to UEFA to argue that FFP dampens inflation in football in a way that is for the improvement of the game and passes a benefit to ‘consumers’ (i.e. fans) by, for example, reducing the need for ticket price increases to sustain escalating players’ wages. This would perhaps be difficult for UEFA to establish, but the economics of FFP are complicated and second order effects should be borne in mind.

EU free movement – workers, services and/or capital 

The EU is built upon certain deeply enshrined freedoms. These include the free movement of workers (Article 45 TFEU), the free movement of services (Article 56 TFEU), and the free movement of capital. Any agreement that acts as an impediment to these freedoms is susceptible to a finding of illegality.

In order to be permissible under EU law, any rule or agreement that restricts any fundamental freedom must be:

1. Justified by a necessary objective in the general interest;
2. Suitable for achieving that objective; and
3. Proportionate.

In the case of sporting rules, the European courts have determined that the rule in question must not “go beyond what is necessary for achieving the aim pursued”,^[7] which is to reiterate that it must be proportionate – a recurrent theme in considering the legality of rules made by the governing bodies of sport, such as UEFA.

The criteria to be met by UEFA in establishing that FFP does not breach EU fundamental freedoms is in line with the threshold to be met in establishing compliance with EU competition law: FFP must be necessary, suitable and proportionate.

However, in the case of free movement law, it is far from obvious that FFP will have a substantive impact on fundamental freedoms. In previous writing on the subject, I have made the following analogy:

The restriction does not emanate from the rule per se, rather by the size of the club’s turnover; players are no more restricted from moving between clubs by FFP than this author is denied a Ferrari by his credit rating.^[8]

The specificity of sport under EU law

In the event that a competent adjudicative authority makes a prima facie finding that FFP is in breach of EU competition law or EU free movement law, there is still a possibility of an overall finding that FFP is not illegal under the doctrine of the specificity of sport; however, this would require the adjudicative body in question to row back considerably from the current position, and general trajectory, of the level of latitude granted to the governing bodies of sport by the European courts.

The concept of specificity will be familiar to all those with an interest in sports law and policy. It is the hypothesis under which, at its starkest interpretation, suggests governing bodies, not courts (or governments or other legislative bodies), are best placed to determine how sport should be run. Sports, it is argued, should have rule making autonomy. A more moderate view on specificity holds that due regard should be paid to the idiosyncrasies of the sports sector and the legitimate governance function played by governing bodies. 

The role of sports governing bodies, whose rules, as was the case with FFP, are often enacted in a broadly consensual way, with engagement, input and consent from key stakeholders, should be acknowledged and some due reverence should be paid to governing bodies' ability to regulate the sporting aspects under their aegis.

Indeed, the European Union had no express competence to in respect of sport until the introduction of Article 165 TFEU, a soft competency, which states that, “The Union 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.”

However, the distinction between elite football as being ‘purely sport’ and elite football as a business has become blurred in to the point of being indistinguishable; and the EU clearly has express competence to deal with business.

The general trend in decisions of the European courts has been to circumscribe self-determination by the governing bodies of sport. Through cases such as Bosman,^[9] Meca-Medina, and Bernard,^[10] the European courts have made it clear that sport cannot avoid or cherry-pick the applicability of EU law. This is acutely relevant in the case of FFP, which, after all, deals with how football clubs are run financially. There are obvious sporting consequences to this, but it is difficult to characterise FFP as anything other than a rule restrictive of the business of sport.

UEFA’s position on Article 165 is that “while sport is not ‘above the law’, there is now a provision in the Treaty itself recognising that sport cannot simply be treated as another ‘business’, without reference to its specific characteristics”. This is not an unreasonable position; sport is a unique industry in which, unlike other industries, the survival of competitors is important for any given club to flourish. Perhaps the courts could be persuaded that a carve-out based on specificity should be applicable to FFP – but this would require a seismic change of direction.

So it is incredibly unlikely that specificity as a discrete sui generis doctrine would give sanctuary to FFP were the rules deemed to be otherwise in breach of EU law. However, facts peculiar to the football industry (i.e. its specificity) should be considered as part of an assessment as to whether FFP is a proportionate mechanism to pursue UEFA’s objectives. As noted above, proportionality is a limb of the tests for derogations to EU competition and fundamental freedom law.

I have previously commented that: 

For football clubs, there is a strong correlational link between spending money and playing success. This has encouraged clubs to risk financial vulnerability in pursuit of improved match results, despite the mathematical impossibility of all clubs being able to improve their fortunes on the field. This innate instability has resulted in persistent insolvencies despite the remarkable growth in turnover seen in the professional game. Regrettably, when balance sheets weaken, the risk of insolvency increases; and once a club becomes insolvent, its survival is subject to the predilections of its creditors. The game’s governing bodies should aim to militate against…this volatility.

UEFA would doubtless argue that, given the specific nature of the industry it regulates, instituting a soft salary cap such as that implemented by FFP is a proportionate response. In that sense at least, the specificity of sport might be of consideration in the legality of FFP.

Conclusion 

It is difficult to say with any degree of conclusiveness whether FFP is legal or not. There are strong arguments either way. The marginal nature of the legal position has been problematic for UEFA and has undoubtedly led to the legal challenges to FFP over the last five years, which are discussed in greater depth in Part Two of this series.

The uncertain legal position, and the challenges generated by that lack of clarity has also, in all likelihood, shaped UEFA’s policy decisions as FFP has evolved in the years since its inception. These are discussed in Part Three of this series.

FFP has certainly been fertile ground for debate, and will likely continue to be so until such a time as there has been a determinative, binding view of its legality. When or whether this will happen remains to be seen.

^[1] Annex X, Club Licensing and Financial Fair Play Regulations, Edition 2012.

^[2] Ibid.

^[3] Thomas Peeters and Stefan Szymanski , 'Financial Fair Play in European Football ' [2014] 29(78) Economic Policy 343-390

^[4] See, for example, Serby, T. (2016) The state of EU sports law: lessons from UEFA’s ‘Financial Fair Play’ regulations, International Sports Law Journal 16(1–2):37–51; Flanagan, C (2013) A tricky European fixture: an assessment of UEFA’s Financial Fair Play regulations and their compatibility with EU law, International Sports Law Journal 13(1):148; Lindholm, J (2010) The Problem with Salary Caps Under European Union Law: The Case Against Financial Fair Play, Texas Review of Entertainment and Sports Law, Vol. 12.2, pp. 189-213

^[5] Noting that UEFA certainly constitute an association of undertakings in the relevant legal sense, see for example Case T-193/02 Piau (2005) ECR I-209, (2005) 5 CMLR 42 or EU Commission decision 2003/778/EC, 23 July 2003, Case COMP C.2-37.398 - Joint selling of the commercial rights of the UEFA Champions League §§ 106-107

^[6] As identified and defined by Whish and Bailey in Competition Law (OUP, 8th)

^[7] Case C-176/96, Jyri Lehtonen and Castors Canada Dry Namur- Braine ASBL v Fédération Royale Belge des Sociétés de Basketball ASBL (FRBSB) ECR (2000) I-2681

^[8] Flanagan, C (2013) A tricky European fixture: an assessment of UEFA’s Financial Fair Play regulations and their compatibility with EU law, International Sports Law Journal 13(1).

^[9] Case C-415/93 Union Royale Belge des Socie ́te ́s de Football Association ASBL v Jean-Marc Bosman (1995) ECR I-4921.

^[10] C-325/08 Olympique Lyonnais v Olivier Bernard and Newcastle United FC (2010) ECLI:EU:C:2010:143.