ECJ Super League ruling widely misinterpreted: based on outdated fact pattern

Complex antitrust matters are very, very--and I know I'm repeating myself, VERY--difficult for the media to cover. Not only does a huge competition case have numerous facets raising complex legal and economic questions, but in some cases the underlying situation evolves so dynamically that by the time a decision comes down, the carpet may already have been pulled from under its feet.

That is just what happened in the most widely anticipated antitrust ruling by the European Court of Justice: the one handed down today in the European Super League vs. UEFA and FIFA case. The simplest way to put is that it's a 2023 decision on a 2021 fact pattern that had already changed fundamentally in 2022.

Moreover, even if one ignored that it was already outdated when it came out, its importance would still be greatly diminished by the fact that the United Kingdom apparently won't enable its clubs to profitably participate in a European Super League. But it's not really a European "Super" League without the likes of Manchester City (the reigning champions), Liverpool FC, Chelsea FC, Arsenal FC, and Manchester United (regardless of their performance in the current edition of the UEFA Champions League). The ECJ can't decide for the UK anymore.

Back to the EU case: I've gone over the actual ruling and couldn't find anything in it that addressed the preauthorization rules adopted by UEFA in 2022 for third-party competitions such as the Super League.

In order to be doubly sure, I ran a full-text search for "2022" (the year in which UEFA adopted new preauthorization rules--i.e., procedural and substantive rules for how a third-party competition could be recognized by them). If the ECJ had mentioned that new framework even just obliquely, the year 2022 would have had to be mentioned in that context. None of the 22 occurrences of "2022" in the document is even remotely related to UEFA's new preauthorization rules.

That renders the ruling not entirely irrelevant, but reduces its significance to just four words: objective, transparent, non-discriminatory, proportionate. Those are the criteria that the ECJ lays out for whatever any such preauthorization rules have to be in order to comply with EU law. That's a vague and high-level requirement. Again, today's ruling says nothing whatsoever about the legality of the specific framework that is in place as we speak and has, in fact, already been in place for a year and a half.

So how come there are such fundamental misconceptions? Why do Real Madrid and its marketing agency A22 get away with claiming victory when the actual question--whether the current framework complies with EU competition rules--has yet to be resolved?

To be fair, the ECJ's press office did not make it easy for reporters and the general public to figure out the (limited) relevance of the decision. If the press release had mentioned that there was a rule change in 2022 that the court did not consider in the slightest when ruling in 2023 on an April 2021 fact pattern), then it would have been easy and I wouldn't even be writing this article. Instead, the court's press release says this:

[T]hat power must, given the risk of conflict of interest to which it gives rise, be subject to criteria which are suitable for ensuring that they are transparent, objective, non discriminatory and proportionate. However, the powers of FIFA and UEFA are not subject to any such criteria. FIFA and UEFA are, therefore, abusing a dominant position.

The problem boils down to the use of the auxiliary verb "are" in the last two sentences of that passage: "were" (i.e., in April 2021, when a trade judge in Madrid made the preliminary reference to the EU's to court) would have been correct.

I actually knew that UEFA had adopted a set of new preauthorization rules along the way, simply because I've been following the proceedings since April 2021 and I remembered that those new rules were, in fact, discussed with a Spanish court at the time. But that's because I just follow a very few disputes that I'm strongly interested in, and others have to write about hundreds of cases per year.

For the avoidance of doubt, no one needs preauthorization anyway: Real Madrid and its allies are free to start a new competition anytime they want. They only need preauthorization if they want to stay within the existing European football structures and run their own thing. In other words, if they want to have it both ways (to be in and to be out at the same time), they need preauthorization.

The proponents of the European Super League don't practically benefit from a holding that UEFA made threats in April 2021 that the ECJ has now declared unlawful. That's water under the bridge, and the Super League fell apart at any rate because of a backlash from fans and reportedly also because English clubs saw that their government would penalize them for participating. Therefore, there isn't even a case for antitrust damages.

The really important question is: what's next? What can the proponents of the Super League do now--and what must UEFA do now?

As I write this, the judgment is available in only two languages : French (the ECJ's working language) and Spanish (the language of the proceedings as the preliminary reference was made by a Spanish court).

The ECJ doesn't even rule out that UEFA can sanction those who participate in a non-authorized competition (item 5 of the ECJ's holding at the very end of the document), provided that the substantive and procedural rules are transparent, objective, non-discriminatory, and proportionate.

The Super League's counsel from the Clifford Chance firm argued at the July 2022 hearing in Luxembourg that preauthorization was unacceptable because of what he alleged to be UEFA's inherent conflict of interests as a rule-setter and economic operator. Today's decision does use the term "conflict of interests" as well, but the conclusion is fundamentally different from the Super League's position: it's just that the criteria and the procedures that govern a preauthorization decision by UEFA must be transparent, objective, non-discriminatory, and proportionate. Then there's no concern left, not even over a conflict of interests.

On its website, the Super League's marketing firm says "[today's] ruling means clubs now have a right to propose new ideas to organise midweek European football competitions." That is grossly misleading. UEFA adopted its new preauthorization rules in mid-2022. A22 could have submitted a proposal for preauthorization during all of that time. 18 months.

By waiting for the ECJ decision, what did A22 achieve relative to the possibility of simply submitting a proposal based on the June 2022 preauthorization rules? In what regard did they gain ground? Today's decision does not hold the current preauthorization rules unlawful. It doesn't even say anything specific, other than reminding everyone of the need for transparent, objective, non-discriminatory and proportionate rules. That is nothing new.

The ECJ's press release noted that the decision doesn't say whether a particular proposal for a new competition--here, the Super League--must be authorized by UEFA. That means authorization can still be denied, which is exactly what the Super League sought to avoid.

Granted, the court did not adopt certain positions by Advocate-General Athanasios Rantos that the Super League didn't like. But it didn't resolve the case in the Super League's favor either. UEFA issued an official statement according to which the ruling merely addressed a deficiency of its obsolete rules. The deficiency was that--as the court described it in the passage I quoted further above--UEFA's powers (to grant or deny preauthorization) were "not subject to any such [i.e., transparent, objective, non-discriminatory] criteria." The only problem, again, is that the court said "are" instead of "were".

The Super League can continue to litigate, but it is not in a significantly better position now than it has been all along since June 2022 when UEFA adopted the new rules. They're just not in as hopeless a position as they would have been if the court had adopted the AG opinion of one year ago. That's all.