THE SUPER LEAGUE AND ITS LEGAL ACROBATICS

THE SUPER LEAGUE AND ITS LEGAL ACROBATICS  (by Olubor Uyi)

The 19th of April would forever remain a memorable day for soccer fans across the globe. It would be remembered as a day when 12 of some of the biggest clubs in Europe attempted to break the tradition and cultural system of European football of reward and consequence in lieu of the U.S franchise system. 

 I can't remember in recent history any story that has reverberated through  the world of sports like the breaking news of April 19th when all the major news channels began to report live. Business experts giving their two cents on the pros and cons of a break away league, various European governments condemning and reproaching the '12 conspirators' and threatening to do all withing their purview to ensure the European soccer league (ESL) does not see the light of day. Then came the big bang when the president of UEFA Aleksander Ceferin declared that teams who participate in the break away league would get suspended from all football activities organised by both FIFA and UEFA and any player involved in the break away league would by extension be incapacitated to be involved with his national team. To put it in context, imagine an African Cup of Nations without Mohammed Salah or a Copa America without Lionel Messi, yes this would have been the import of such a punitive measure.

  Most analyst would opine that such a punishment being meted on sports athletes would be disproportionate and would be difficult for the regulatory body to enforce. However, it became more interesting when the premier president of the ESL, Mr. Florentino Perez (also the president of Real Madrid C.F) waived away all the threats from the supremo of the European football and claimed that they had weighed all legal options and they would not face any insurmountable legal arsenal from the regulatory bodies

 The question every football enthusiast would ask is: What would be the final legal resolution in a situation as this? In International Skating Union (ISU) v Commission T-93/18, the European General Court (EU GC)  in December 2020, the ISU was accused by two speed skaters of using its regulatory powers to prevent competitors from successfully organising speed skating events, dispute arose when two  international speed skaters filed a complaint with the EU Commission about the eligibility rules of the ISU. The two skaters wanted to participate in a third party event, Under the ISU Constitution and General Regulations, individuals may become ineligible if they take part in competitions that are not authorised by the governing body. The commission held that the object of the rules of ISU and its members was to restrict competition in the organization and commercialization of speed skating events although the ISU counterclaimed that the object of its rules is to protect and maintain the integrity and good functioning of the sports and as well protect the health and safety of the participants. This argument was however discountenanced.

The appeal  by the ISU to the GC was dismissed relying on the CJEU’s case law (Judgment of 16 July 2015, ING Pensii, C-172/14, EU:C:2015:484, paragraph 33), holding that to determine whether an agreement is restrictive by object, account must be taken of its objectives and the context of which it forms part. However, the GC annulled the ruling by the Commission on the ground that arbitration clauses in the articles of the ISU had the tendency to inhibit competition. The GC held that rules granting exclusive jurisdiction to an arbitral body may be justified in the light of the specific nature of the sporting sector and the benefits of having disputes heard by a specialised court capable of adjudicating quickly and economically. 

The Court also noted that athletes and third parties may file complaints with the Commission or with national competition authorities, thereby concluding that the arbitration system does not compromise the full effectiveness of EU competition law.

  Most sports legal experts have opined that the decision of the GC (although it is still being appealed at the ECJ ) must have goaded the '12 super European teams' to secede from the global football family. However, critically looking at the issues and circumstances surrounding the super league, it would seem humongously different from the issues in the ISU dispute. In this instance, the existence of the UEFA champions league keeps all domestic leagues competitive and viable and also teams  (as well as their federations) who participate are entitled to one form of compensation or the other not to mention the support financing that even African Football Federations as well as their counterparts receive. An elitist league if allowed to see the light of day, would kill the domestic leagues. Now let's ask ourselves why would a Newcastle United want to fight to win the Premier League when it is already established that only the big six would qualify for the UCL whether they do well or not. This would kill viewer interest and the big mega TV cash would go to the 'super teams'. And understanding that TV money does not only stop with 1st division teams but also filters down to the lower rung of the football pyramid and these monies also touch down in other continets like Africa, Asia via player transfers. Imagine a super League is formed, all the European domestic leagues would be almost rendered sterile and the 'big cash' would only be realised by the 'Super teams'; this I find discriminatory. Article 4 of the FIFA Statutes prohibits all forms of discrimination even as it relates to wealth. Thus, a creation of an elitist league would not only be anti competitive but also be discriminatory and would only aim to widing the gulf between the "haves" and the "have nots". To ensure the competitiveness of football across the globe, article 9 of the Regulations governing the application of FIFA Statutes which provides that a club's entitlement to take part in a domestic league shall depend principally on sporting merit. 

Taking a critical look at the objectives of the FIFA regulations on sporting merit, one can reasonably deduce that it is to maintain the integrity of the sport and eliminate any form of anti competitive tendencies by the establishment of a franchise league.

   It is also interesting that Real Madrid C.F approached the Commercial Court in spain to restrain the FGB's from stopping them in their plans to organise a super league. This they did without first approaching the Court of Arbitration for Sports. Although, football laws frown at bringing football disputes before regular courts, however, it is evidently clear that the 'Super Clubs' drew inspiration from the GC's decision in the ISU dispute where the GC although, it annuled the Commission's decision that the ISU arbitration rules are anti competitive and further held that nothing stops athletes or third parties from filing with the Commission or national competition authorities. Thus, Real Madrid C.F acted under the established principles in the ISU case in bringing such a dispute before a regular Spanish commercial court.

Also, on if FGB's can ban players who partake in the proposed franchised league. This issue was critically analyzed by the GC in the ISU dispute, when it held that punishment meted on athletes must be proportionate. With regard to the threats being proposed by UEFA against the players, i do not understand why an athlete who is under a contract with his employer even before he became aware of the new competition would be punished for an event he had no capacity in bringing to fruition.

  Also, it is interesting to take cognizance of the fact that Britain is no longer part of the European Union and would invariably not be bound by the decisions reached by the European Union. One would therefore expect anti competition authorities to investigate the six clubs for breach of anti-trust regulations if they ever decide to join the break away league. I am sure this explains why the English teams were the first to pull out of the proposed franchise league.

 Finally, although, the idea of the super league has been shelved for the main time. A final decision by the ECJ in the ISU dispute is still being awaited with bated breath, and for most sports lawyers it is expected that a final decision against the ISU would have greater repercussions than those which arose after the Bosman decision. However, for now we would continue to enjoy our merit based soccer and watch our best players compete with our respective national teams.

Olubor Uyi (Esq.)

Sports legal expert

CEO Etoile Gestion du sportive 

Etoilegestiondusportive@yahoo.com