The European Game

The long-awaited judgement of the Court of Justice of the European Union in Case C-333/21 – European Super League Company has finally arrived, accompanied by two other cross-referential decisions (here and here). The first analyses are beginning to surface (e.g., this excellent take by Stephen Weatherill, here), and there is a lot to unpack, especially with respect to developments in competition law. Constitutional lawyers will, however, find particular interest in how the Grand Chamber dismissed Advocate General Rantos’ pitch for a constitutional recognition of the European sports model based on Article 165 TFEU. This post focuses on this aspect of the European Super League judgment. It argues that while the Advocate General’s construction was rejected, the Court still used this judgement to further define its own constitutional understanding of the European sports model, as well as to solidify its role as the primary interpreter of that model.

The Superleague and the European sports model

The origin of the European Super League case is, at this stage, well known. A group of elite European football clubs decided to establish a new club competition, reminiscent of North American closed leagues, named “Superleague”. Promptly, FIFA and UEFA refused to recognise the Superleague, and announced that any football club and player participating in this competition would be excluded from those organised by the two sports governing bodies. Under their statutes, FIFA and UEFA claim such powers of prior authorisation and sanctioning. Following this, the European Superleague Company brought proceedings before a commercial court in Madrid, arguing that FIFA’s and UEFA’s behaviour amounted to anti-competitive conduct prohibited under Articles 101 and 102 TFEU. Six questions were later referred to the Court on the interpretation of these two provisions, as well as on a number of treaty provisions on free movement.

The first member of the Court to have a say in this case was Advocate General Rantos. The opinion surprised many due to its reliance on Article 165 TFEU (see, e.g., here). According to the Advocate General, Article 165 TFEU gives expression to “the ‘constitutional’ recognition” of what he coined as the “European sports model” (para. 30). In a creative sequence, the Advocate General explained what characterised the European sports model, basing his definition, more or less, in textual elements found in Article 165 TFEU. In particular, that model would be founded on a pyramid structure having amateur sport at the base and professional sport at the top. Its primary objectives would include the promotion of open competitions which prioritise sporting merit. Finally, it would be based on a financial solidarity regime defined by the redistribution of earnings from the top to the lower echelons of the sport (para. 30.).

The Advocate General saw the Superleague as a “challenge to the ‘European sports model’” (title of section IV.B.2.), and took specific issue with its quasi-closed structure. This was in clear opposition to his understanding of a European sports model “characterised in particular by the openness of its competitions, participation in which is based on ‘sporting merit’” (para. 33). The Advocate General argued that Article 165 TFEU should be used as a standard in the interpretation and application of Articles 101 and 102 TFEU (para. 35). He justified this construction by reading Article 165 TFEU as lex specialis, and as an “‘horizonal’ provision” with the type of consistency function referred to in Article 7 TFEU. Article 165 TFEU featured in critical junctures in the Advocate General’s interpretation of Articles 101 and 102 TFEU, contributing to the opinion that these provisions do not preclude the existence of FIFA and UEFA’s rules, only (potentially) their shape.

The Grand Chamber’s rejection of Advocate General Rantos’ construction

In its judgement in European Super League, the Court deemed required to clarify its stance concerning the interpretation of Article 165 TFEU (paras. 95-107). The Grand Chamber rejected the Advocate General’ construction, omitting any reference to the concept of the ‘European Sports Model’ and rebutting most of the arguments set forth in his reading of Article 165 TFEU. For the Court, Article 165 TFEU is but a legal basis enabling the EU to pursue a supporting competence (para. 96). When adopting acts under this legal basis, EU institutions must attend to the elements found in that provision. However, this does not mean that Article 165 TFEU must shape the interpretation and application of other EU legal instruments, namely treaty provisions such as Articles 101 and 102 TFEU (para. 101). Article 165 TFEU is not “a cross-cutting provision having general application”, nor is it lex specialis. Sport has specific characteristics, some of which are reflected in Article 165 TFEU. (para. 102). However, this provision must not be “regarded as being a special rule exempting sport from all or some of the other provisions of primary EU law liable to be applied to it or requiring special treatment for sport in the context of that application.” (para. 101).

While the Court rejected the Advocate General’s interpretation of Article 165 TFEU, the judgement still safeguarded some of the elements identified in his opinion as part of the European sports model. The Grand Chamber censored the absence of transparent, objective, non-discriminatory and proportionate criteria limiting the discretionary powers of FIFA and UEFA in the discharge of their gatekeeping function (para. 148). However, it nevertheless justified the existence of such exorbitant powers, which, unlike similar precedents (e.g., C-49/07 – MOTOE) are not based on any public granting of special or exclusive rights. This was done in light of the particular characteristics of the sport of football (para. 144). The openness element, in particular, is central to the Court’s argument. For the Grand Chamber, football, “in common with other sports”, is “essentially, based on sporting merit”. And this feature can only be guaranteed “if all the participating teams face each other in homogeneous regulatory and technical conditions, thereby ensuring a certain level of equal opportunity” (para. 143). The same type of argument is found later in the judgement when the Court justifies FIFA and UFEA’s monopoly on the exploitation of rights related to football competitions. There, the Grand Chamber referred to the purpose of ensuring some “form of ‘solidarity redistribution’ within football” (para. 234).

The Court as the primary interpreter of the European sports model

If the Court rejected the Advocate General’s pitch for a constitutional recognition of the European sports model based on Article 165 TFEU, it still safeguarded multiple elements of that model. This should not come as a surprise, as, long before the European Super League judgment, the Court has acted as the primary interpreter of the European sports model. As Floris de Witte and Jan Zglinski explained, on many occasions the Court’s interpretation of the EU’s economic constitution has been deferential towards the “affective” dimension (i.e. sociological reality) of sports, football in particular. By reference to the “specific characteristics of sports”, the Court has developed an idiosyncratic body of case law establishing certain guarantees against the normal application of the treaty provisions on free movement and competition. The judgement in C-415-93 – Bosman provides a canonical example. There, the Court justified the existence of certain free movement restricting transfer rules in light of the aims of maintaining a competitive balance between clubs by preserving a certain degree of equality as to results (para. 106). Through this process of negative integration, the Court has developed its own constitutional understanding of what European sports is and should be. In this context, the European Super League judgement further defines the Court’s interpretation of that model, enshrining, in particular, the importance of the openness of sporting competitions, and confirming that of solidarity in the redistribution of earnings.

At the same time, by downgrading Article 165 TFEU to a lesser legal basis, allowing the EU’s political institutions to pursue “not a ‘policy’” but, merely “an ‘action’” (para. 99), the Court further rooted its role has the primary interpreter of the European sports model. While harmonising measures are possible, inter alia under Article 114 TFEU, the Court’s exclusion of the pursuit of an EU sports “policy” delegitimises such regulatory initiatives to a certain extent. Even if this obiter statement does not necessarily tilt the regulatory balance in favour of negative integration, it discreetly slopes it against positive integration. Should the EU political institutions re-regulate the European sports model when the treaties bar them from developing an EU sports “policy”? It is true that the preferred regulatory strategy of EU political institutions has consisted of partnering with sports governing bodies to agree on the regulation of the European sports model (see, e.g., here). On this front, as well, the preclusion of the development of an EU sports “policy” raises questions concerning the admissible range of EU measures. Yet, and more importantly, considering the governance deficiencies that characterise organisations such as FIFA and UEFA, a more autonomous regulatory strategy can, at times, be preferable. For the most part, this autonomous response has come from the Court. In this context, the European Super League judgment should invite a reflection on this process of judicialisation of the European sports model. And whether it should be tempered with a recognition of the political mandate to re-regulate, specifically through the more democratic ordinary legislative procedure. The Court should also consider passing the ball.