The European Super League is still fighting for survival – the battle continues

The vibe last weekend was football is BACK! Real football, the proper stuff on Sky, BT, DAZN, NBC et cetera.

And while this ignored all the other wonderful football many of us enjoyed recently, it would be churlish to pretend last weekend was not the start of the new season for lots of fans. It was definitely the start of the Fantasy Football season.

Speaking of fantasy football, this season was also meant to be the start of the European Super League. Remember that? The midweek competition involving 12 of the world’s richest clubs that Real Madrid president Florentino Perez said would begin in 2022-23, whether the authorities approved it or not?

Of course! That crime against sport. Wasn’t it killed off by fan power and the threat of government legislation within 72 hours of birth? Thank god that’s not coming back!

Well… what if we told you the company behind it was at the European Union’s highest court last month for a two-day hearing and… well, it did not go that badly for the ESL?

The company was asking the European Court of Justice (ECJ) to make a ruling on whether FIFA and UEFA broke the law when they threatened to expel the devious dozen from their competitions, including a possible World Cup ban for the players involved. We will not get an answer until December 15, but the arguments heard in the Luxembourg-based court suggest the ESL, or something similar, will be back at some point.

Those arguments took nearly nine hours across July 11-12, but because there was no football on (friendlies don’t count and the Women’s European Championship had not really got going) we watched every minute. Do not thank us, it is all part of the service, and it has only taken us four weeks to make sense of our notes.

So, without further ado, here is what you did not miss but should be across as it was quite a big deal last time.

Wait, I need a refresher! What are we talking about? 

Sure, it has been a while. The European Union is a group of 27 countries that have formed a common market. It used to be 28 but…

No, I remember that! I meant, remind me about the European Super League 

According to the press release that announced its launch on April 18 last year, the ESL was going to involve two groups of 10 teams that played each other home and away on midweek evenings.

The top three from each group would proceed to the quarter-finals, where they would be joined by the winners of play-offs between teams that finished fourth and fifth. The competition would then continue on a knockout basis, with the play-offs, quarter-finals and semi-finals having two legs, before a single-tie final at a neutral venue. The knockout phase would take place over a month at the end of the regular season.

The plan was that 15 “founding members” would be given permanent places — and stakes in the organising company — with the five other teams qualifying via their domestic leagues, although how this would work was never nailed down. The founding members were promised £3billion ($3.6bn) for infrastructure projects and pandemic-related insurance, nine-figure welcome bonuses and the biggest shares of the competition’s revenues.

The lucky 15 were the Premier League’s “Big Six” of Arsenal, Chelsea, Liverpool, Manchester City, Manchester United and Tottenham, Serie A’s AC Milan, Inter Milan and Juventus, La Liga’s Atletico Madrid, Barcelona and Real Madrid, the Bundesliga’s Bayern Munich and Borussia Dortmund, and Ligue 1’s Paris Saint-Germain. However, Bayern, Dortmund and PSG changed their minds about joining, so 15 became 12.

The league was launched late on a Sunday but by Tuesday evening it appeared to have crashed, leaving just Barca, Juve and Madrid fighting the fight.

Fans protesting

Fans protesting against the European Super League before Chelsea played Brighton in April 2021 (Photo: Sebastian Frej/MB Media/Getty Images)

So no Super League, then? 

No, that was postponed. The contrite nine made their apologies, individuals were kicked off committees, the clubs agreed to some financial penalties and everyone tried their best to forget the sorry episode had ever happened.

The rebel three, however, dug in. Clinging to a pre-emptive ruling they had secured from a court in Madrid that was meant to protect them from any possible sanctions, the trio told UEFA to stick their fines somewhere uncomfortable, stared down their domestic leagues and told everyone the ESL had suffered a mere flesh wound.

In May, a month after the ESL collapsed, the Madrid court saved a lot of toing and froing by asking the ECJ to make a preliminary ruling on whether its interpretation of EU competition law — that UEFA and FIFA had broken it by trying to crush a rival competition before it could start — was right or not.

By late September, the ECJ had agreed to look at the matter. That forced UEFA to suspend the sanctions it had imposed on the nine clubs that had agreed to them and lift the threat of stiffer punishments against the three that had not.

This put everything on the back burner while the ECJ tried to schedule the hearing. In the meantime, UEFA pushed on with its plans to expand its club competitions from 2024 onward, FIFA continued to meddle with the international match calendar, and Real Madrid won a fifth Champions League in eight years.

Hold on. What has any of this got to do with the EU?

Good question, and one that both sides in this argument have asked, only to then agree that it has everything to do with the EU — providing the EU agrees with its interpretation of EU law.

The best way to answer this question is to think about what the EU is and what football became many years ago.

The EU is a group of countries that have decided to act as one when it comes to producing food, trading goods and so on. That single market is underpinned by a treaty that ensures basic freedoms and fair competition. In other words, EU law should enable its citizens to live, study and set up businesses wherever they like in the EU, just as Americans from any state can park their wagons anywhere in the United States of America.

Sport, on the other hand, has traditionally been organised with harder boundaries in mind: village versus village, city against city, within competitions run at a local or national level, in a pyramid structure.

At the top of these pyramids sits a governing body, and that body is the country’s member association in the relevant international federation. Sometimes, there is also a confederation that sits between the national body and the international federation, and that confederation might organise competitions on its patch, like UEFA, leaving the international federation to sort out the global stuff.

However, these nation-based structures pose fundamental challenges to EU law. This was not immediately apparent to those who created the single market because they were more worried about cheap energy, protecting jobs and avoiding wars, but then sport, particularly football, started to make serious money. In parlance, it became an economic activity, which is very much the EU’s bag.

This is why the ECJ made a decision in 1995 that changed football forever. It ruled that when Jean-Marc Bosman’s contract with Belgian side RFC Liege ended in 1990 he should have been allowed to move to Dunkerque in France without a fee. It also ruled that the quotas on foreign players, standard at the time, should not apply to EU citizens.

Jean-Marc Bosman, two of his lawyers

Footballer Jean-Marc Bosman, flanked by two of his lawyers, when the European Court of Justice ruled in his favour in 1995 (Photo: STF/AFP via Getty Images)

Suddenly free agents could move to whichever club was willing to pay them the biggest salary and clubs could field as many EU players as they liked. But it was a revolution with limits because neither that ruling, nor several others that followed, tried to unravel the structure of nation-based competitions, member associations and transfer fees for players under contract.

In short, the EU rulebook’s guardians decided sport had a specific nature, like cinema or music, and should not just be left to the market. The so-called “European sports model” required a different approach.

So, a 19th-century system for organising sport was allowed to continue into the 21st century but with a complex set of checks and balances tacked on to avoid the exploitation of workers, manipulation of prices and any other egregious abuse of the free market.

Right, how did it go in court then? 

You know those amazing courtroom dramas where the lawyers deliver passionate speeches or set clever traps for lying witnesses?

Yeah, forget them, the ECJ is nothing like that.

Instead of one judge, there were 16 for this case and at least 40 different barristers. And the debate was more like a series of PhD students reading their dissertations than Tom Cruise shouting at Jack Nicholson. And these dissertations were in a dozen different languages.

The key contributions came from the company that set up the ESL, UEFA and the European Commission, which is the Brussels-based branch of the EU that actually runs the single market. There were also statements from football’s world governing body FIFA, the Spanish Football Association, 20 different EU member states and Norway, which is not a member of the EU but follows its economic rules. In terms of how that broke down into “sides”, it was about… one against 25, with the appellant — the ESL — making the most noise, but the defendants — UEFA and FIFA — having the biggest band.

Remember, this case was referred to the ECJ by Madrid’s 17th commercial court, where a judge called Manuel Ruiz de Lara had ruled that any attempt by football’s governing bodies to crush the ESL before it started would be contrary to EU law.

It was a ruling that UEFA, FIFA, the FA, the Premier League, the Spanish FA, La Liga, the Italian FA and Serie A ignored on April 18 when they quickly responded to the ESL’s launch by issuing a statement that threatened the clubs with expulsion from domestic, European and global competition.

That threat, the ESL has argued, was motivated by UEFA’s desire to defend the Champions League, the only competition the ESL clubs wanted to break away from, and was therefore an abuse of UEFA’s dominant position and further evidence of its conflict of interest as both a regulator and a market participant. This argument was summarised in a 14-page document posted on the ECJ’s website that claimed the defendants had breached six different articles in the EU’s rulebook.

In short, the ESL believes:

  • UEFA pretends to care about the romance of the cup and grassroots sport but is actually only interested in protecting the Champions League.
  • This competition is not as open as it says it is, does not make as much money as it thinks it does and is simply not giving today’s fans enough of what they want, which is the world’s biggest clubs playing each other in guaranteed, competitive fixtures, every season.
  • FIFA is just as bad for letting UEFA get away with it.

UEFA, on the other hand, thinks it is a bit rich of the ESL to accuse anyone of running a cartel, particularly one it believes would damage not just its competitions but every domestic league, which would become second-class competitions in their territories. This, it says, would destroy the cherished European sports model.

European Court of Justice building with sign

The European Court of Justice in Luxembourg (Photo: Harald Tittel/picture alliance via Getty Images)

Blimey, who had the best arguments? 

Both sides cited articles of the treaty, landmark ECJ cases and recent European Commission papers but there were a few zingers among the legalese.

“Do you believe UEFA will ever authorise a competitor to the Champions League?” asked the ESL’s barrister Miguel Odriozola in his opening speech. “The answer you’re all thinking is ‘no’: they’ll never authorise a competitor, and it’s because they have a conflict of interests.”

He went on to claim UEFA “rules with an iron fist” that it uses to “beat away alternative projects that threaten its monopoly”. He also told the court the ESL would easily beat the £250million or so UEFA distributes in solidarity payments as it was promising to raise more like £350million a year for the greater good.

Another of the ESL’s barristers, Jean-Louis Dupont, the man who beat UEFA in the Bosman case, poured scorn on UEFA’s precious pyramids.

“The Egyptians built magnificent pyramids but UEFA’s wouldn’t win any architectural prizes,” said Dupont, pointing out there is a single market for players but not for clubs, which is why clubs stuck in small markets have no chance of success in Europe and their domestic leagues are impoverished.

He specifically mentioned the fact that a team from Dublin, a major European city, had never reached the group stages of the Champions League, but he could have just as easily used Luxembourg City, the world’s richest, as an example — it might have played better with the gallery.

UEFA’s barristers had a few bon mots of their own, though.

Donald Slater, representing European football’s governing body, accused the ESL clubs of “wanting to have their cake and eat it” by trying to continue to play in UEFA’s Champions League while they built the competition that would deal a “fatal blow” to the entire eco-system.

Quoting the “football philosopher Eric Cantona”, Slater added that “you don’t get to be champions without a struggle” and that competitions must be open to all, not North American-style closed shops.

“Merit, not money, must determine the outcome,” he said, also noting that Real Madrid may well have won the Champions League last season but they were beaten in the group stage by Sheriff, a team from Moldova, with the winner scored by a player from Luxembourg, Sebastien Thill.

The contributions from the member states lasted hours and most of them were so similar — we like it the way things are — they were not particularly useful.

But Greece and Slovenia did challenge the ESL’s argument that sports like basketball are doing just fine with their closed leagues independent of governing-body control.  Their barristers pointed out that club-v-country rows prevented their national sides from taking up places at world championships and said the EuroLeague casts a dark shadow over their domestic leagues.

Getafe players wearing t-shirts protesting the ESL

Getafe’s players wearing T-shirts protesting the European Super League greet Lionel Messi, then playing for Barcelona, in April 2021 (Photo: Lluis Gene/AFP via Getty Images)

What did the judges say?

The rapporteur, or reporting judge, for this case is Jan Passer from the Czech Republic and he led the questioning. He was particularly interested in how significant UEFA’s solidarity payments are to its 55 member associations, and whether the ESL really could be trusted to beat them.

Odriozola admitted that the ESL’s solidarity pot was “voluntary” but said the £350 million was a minimum and it would be dished out by an independent body. He did not give any further details.

Passer also quizzed the ESL about its 15 “founding members” and the accusation its proposed format is a jeopardy-free cartel of the game’s richest clubs. The ESL’s answer to this one was far more illuminating.

“It’s not a format,” claimed ESL barrister Luis Alonso Diez. “It’s a platform for clubs to organise at international level in the same way they do domestically. What was proposed was a tentative format, subject to dialogue. We’re not tied to any format, we want to work with the European Commission to find (a) format.”

Judge Lucia Serena Rossi from Italy wanted to know more about this “platform” and how it would not be a closed league.

Alonso Diez assured her that “the Super League is willing and ready to be examined with rigour by the authorities”. However, he did not elaborate.

There then followed a long debate about the nature of this much-cited European sports model and whether it is actually spelt out in EU law. This one was not for your casual sports law fan but The Athletic did its best to follow the cut and thrust as it was the closest the two days got to an actual row.

It came to a head when Swedish judge Nils Wahl flatly asked the European Commission to help the ECJ come up with a coherent answer for the Madrid court. If you are going to argue that sport is somehow exempt from EU law, he asked, can you explain how and why?

The commission’s barrister Sergio Baches Opi seemed to struggle with this request. The best he could come up with was sport is just different and that enables governing bodies to behave like this, providing their actions are justified by “legitimate objectives”, such as ensuring the integrity of the competition, avoiding fixture chaos or funding grassroots projects. And any action taken must be proportionate, non-discriminatory and subject to review. Wahl was unimpressed.

And there were other interventions from the panel that could give the ESL cause for some optimism.

Passer asked if it would be better if sport’s federations just split their regulatory and market-participant functions. In other words, telling UEFA to get out of the commercial space and stick to rules, referees courses and running tournaments.

To be fair, there are dozens of clubs across Europe who would agree with him. UEFA itself has recognised the need to involve the clubs more closely in its club competitions.

One of the by-products of the ESL crisis is the creation of a 50/50 joint venture between UEFA and the European Club Association, the elite clubs’ lobby group, for marketing the Champions League, Europa League and Europa Conference League. Many in the game believe this is the first step to UEFA realising it needs to let go.

Advocate general Athanasios Rantos is the man tasked with drafting a non-binding legal opinion for the court and the Greek judge said he would deliver it on December 15. He did not give much away during the hearing but he did ask one of the best questions.

Why didn’t the ESL clubs just leave UEFA, and FIFA, too, for that matter? Why not set up their “separate structure”, create their new platform and ignore whatever sanctions their former governing bodies imposed?

The ESL barristers told him the answer was simple: they could not afford to leave.

Forget Perez’s bluster about being ready to go, come what may, in 2022-23. The truth is the richest clubs need “time to build their new house”, with broadcasters and sponsors, but would be bankrupted if they were kept out of the Champions League and their domestic leagues in the meantime.

A catch-22, then. And catch-22s are not the type of thing the ECJ normally tolerates.

OK, what’s going to happen, then? 

Dr Borja Garcia is a senior lecturer in sports management at Loughborough University and a member of the European Commission’s expert panel on sport policy.

“The court’s decision will depend on its view of the conflict of interest of UEFA as governing body and market operator,” he explains. “And UEFA and FIFA are not in a very secure position on that one.

“The European Court of Justice is there to interpret the law on its own and, if anything, it has historically sided much more with citizens than institutions. It is one of the most protective courts of individual rights.

“That said, the support of the member states for the European sports model is important, but it is more relevant that article 165 of the treaty already recognises the specific nature of sport structures. It is that article the court will rely on if it decides to go that way.”

The problem for UEFA is that the ESL has treaty articles it likes, too.

The Super League clubs have clearly heard the message that fans, particularly “legacy” ones, do not like closed leagues. OK, instead of 20 teams, how does 40 sound? Or 60? Is that open enough?

And what will the football landscape look like after a few more years of the Premier League’s giants being protected by their international TV deals, global sponsors and billionaire owners? Could the question the ESL is trying to answer be the Premier League and not the Champions League? Might Brexit apply to the ESL, too?

All the ESL needs from the ECJ is some guidance on how a new competition could be established and some limits placed on what UEFA, or any other party, can do about it.

After all, the Bosman ruling did not change absolutely everything at once. It shifted the needle. That might be enough.

The football is back. If you like it like this, enjoy it. You will miss it when it’s gone.

(Top photo: Adam Davy/PA Images via Getty Images)


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