Last 21 December, the European Court of Justice ruled on the conduct of the Fédération Internationale de Football Association (“FIFA”) and the Union of European Football Associations (“UEFA”) with respect to the Superleague project (i.e, the intention of 12 European clubs belonging to the Spanish, Italian and English football federations to create a new football competition between clubs at an international level, outside the control of FIFA and UEFA), most likely setting a milestone in the management of economic and financial rights related to the world of football.
What emerges from the judgment of the European Court of Justice is that the evaluation made by the European judges, which is the outcome of the preliminary ruling raised by the Juzgado de lo Mercantil de Madrid pursuant to Article 267 of the Treaty on the Functioning of the European Union (“TFEU”), focused on the verification of the statutory provisions and the conduct of FIFA and UEFA in order to ascertain whether the aforementioned football associations have concretely restricted – or may have potentially restricted – competition within the single European market, thus constituting antitrust offences in breach of Articles 102 and 101 TFEU.
According to the FIFA statutes as well as the relevant regulations governing international competitions, in fact, the association itself holds:
the power to veto the participation of clubs and players in supranational football associations other than FIFA and its six member regional confederations, including UEFA1, on pain of exclusion of the same clubs or players from any international competition organized by FIFA itself or its member confederations;
the power to veto the organization of international competitions by clubs belonging to FIFA member confederations, even indirectly through national football associations;
originally, together with its members, all rights arising from the competitions authorized by FIFA itself, among others, rights of a financial nature relating to those competitions, broadcasting rights as well as promotional and marketing rights.
Similarly, UEFA’s Statutes provide:
UEFA’s exclusive jurisdiction for the organization or abolition of international competitions between clubs belonging to UEFA;
the necessary approval by the same European association and/or FIFA of all international competitions organized within the European territory;
UEFA’s prior approval for the establishment of new agreements and/or alliances between UEFA member national associations and/or their affiliated clubs.
In light of the above and given the categorical refusal by FIFA and UEFA to examine the admissibility of the Superleague project2 , the Madrid commercial court referred the question of the possible abuse of a dominant position exercised by the aforementioned associations to the European Court of Justice, thus requiring an interpretation of the provisions of Article 102 TFEU, as well as the existence of an unfair commercial agreement having as its object or effect the restriction of competition between undertakings (in this case, associations or clubs) operating in European territory, thus requiring an interpretation of the provisions of Article 101 TFEU.
According to the European competition rules, which are also applicable to associations and companies active in the sports sector since the latter carry out economic and remunerative activities1, an undertaking (i.e. any entity carrying out an economic activity, regardless of its legal and/or financial status) abuses its dominant position within the meaning of Article 102 TFEU whenever it uses its dominance in order to undermine the free competition of competing undertakings or associations (e.g., creating economic or factual barriers to prevent or make it difficult for competing start-ups or companies to enter or remain on the market), thereby directly or indirectly harming consumers.
Article 101 TFEU, on the other hand, excludes the lawfulness of agreements, decisions of associations/companies and concerted practices having as their object or effect the restriction of free competition between undertakings or associations (e.g., agreements to regulate prices, agreements to exclude the distribution of certain goods and/or services in a given territory, etc.) thereby creating direct or indirect consumer harm.
Having examined the factual circumstances, the European Court of Justice ruled first and foremost that, on the basis of an authentic interpretation of Article 102 TFEU, FIFA and UEFA undoubtedly hold a dominant position on the market since they are the only associations called upon to regulate supranational competitions between football clubs respectively at world and European level. That being said, the European judges have ruled that, unless due justification is shown before the Juzgado de lo Mercantil de Madrid, both of the above-mentioned football associations have constituted an abuse of a dominant position, given their total and complete arbitrariness in assessing the possible creation of new organizations or in admitting possible international competitions, different and additional to those already organized by FIFA and UEFA, between clubs already belonging to the latter through their national federations, effectively making access to the sports market impossible for potential competitors.
Although a preliminary screening of market access by FIFA and UEFA, which are associations whose ultimate objective is to regulate the organization of the game of football at world and European level in order to safeguard its integrity and protect it from abuse, is admitted in the abstract, the fact that there are no objective rules and procedures capable of avoiding the potential conflict of economic interests between emerging and already active associations, with possible sanctions imposed on both clubs and individual professionals, makes FIFA and UEFA’s conduct contrary to the principles of Article 102 TFEU. Such a system prevents, in fact, the access to the market of new bodies, potentially of equal efficiency with FIFA and UEFA,diminishing competition between companies or associations to the detriment of clubs, professional players and, not least, end consumers.
For the same reasons listed above, the European Court of Justice has also ruled that, on the basis of an authentic interpretation of the provisions of Article 101 TFEU and unless due justification is shown before the Juzgado de lo Mercantil de Madrid, the principles contained in the same should be considered violated given that the statutory content of FIFA and UEFA corresponds to associational decisions having as their object the prevention of free competition between companies, which are capable of reinforcing the barriers to market entry for potential competing companies or associations.
Finally, the Luxembourg judges also considered as contrary to the authentic interpretation of the provisions of Articles 101 and 102 TFEU the provisions concerning the exclusive use by FIFA and UEFA alone of marketing rights relating to international competitions organized or approved by them.
What the European Court of Justice ruled with the above summarized judgment, while recalling elementary principles of European antitrust law, will most likely revolutionize the sporting and economic management of European and international football competitions, opening up the possibility of radical changes to the hitherto known football system. In fact, the legal qualification of the already suspected dominance of FIFA and UEFA over the football world will most likely lead to a different approach, both legal and factual, to new initiatives.