On 20th December 2023 the Court of Justice of the European Union (CJEU) published the much-anticipated “Superleague” judgement (case C-333/21).
This judgement is derived from a preliminary ruling sought by the Commercial Court number 17 of Madrid, which was aware of the claim filed by the EUROPEAN SUPERLEAGUE COMPANY, a company formed by 12 football clubs, against the FIFA and the UEFA. The claimant essentially considered the rules of FIFA and UEFA regarding authorisations for competitions and broadcasting rights to be contrary to European Union law.
The proceedings were initiated following threats of fines by both associations to the founding clubs of the Superleague and its players, excluding them from competitions organised by FIFA and UEFA.
The issue raised is that the internal rules of FIFA and UEFA make the creation of any new club competition project in the European Union subject to the prior authorisation of these associations, which the plaintiff sees as a violation of articles 101 and 102 TFEU, which prohibit the restriction of competition and the abuse of a dominant position, respectively.
With regard to the possible infringement of article 102 TFEU, the CJEU ruled that it constitutes an abuse of a dominant position for said associations to make, in the territory of the Union, the creation of a new club competition by a third-party company subject to their prior authorisation, when this faculty is not subject to objective, transparent and non-discriminatory criteria. Given that the faculties of FIFA and UEFA are not subject to any criteria of this type, these associations are abusing their dominant position.
Nevertheless, the CJEU considers that, in view of the particularities of professional football, the fact that said associations require such prior authorisations to guarantee that future competitions comply with the European sporting model does not constitute per se an infringement of a dominant position. However, to avoid the abuse of a dominant position, it is necessary that in such a case, the rules which regulate the authorisations are subject to the criteria and procedures mentioned above.
As far as article 101 TFEU is concerned (acts likely to restrict competition), the CJEU rules that the FIFA and UEFA regulations allow, so as not to exclude any competing company, or equally efficient company, from the EU market, at the very least limits to be imposed on the creation and the marketing of alternative or new competitions on account of their format or content. Given that in this case, the FIFA and UEFA regulations are not subject to the aforementioned criteria, it must be understood that their objective is to prevent free competition, and therefore, they also entail an infringement of article 101 of TFEU.
Joan Lluís Rubio
Vilá Abogados
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9th February 2024
