European Court of Justice to referee longest pro football match ever on July 11 & 12

In its 70-year history, the European Court of Justice has made numerous decisions with major political and/or economic ramifications. None of those objectively important judgments drew even remotely as much public attention as the 1995 Bosman ruling , the most visible effect of which was that European football (soccer) teams no longer had to field a minimum of eight domestic players (out of 11).

Fast forward more than a quarter century, and the top court of the European Union is once again bracing for a high-profile football case that will be heard in a little over a week (on Monday, July 11, and Tuesday, July 12): European Super League Company, S.L. v Union of European Football Associations (UEFA) and Fédération Internationale de Football Association (FIFA) .

The European 'Super' League is, essentially, a dead league walking: within two days of its announcement in April last year, it all fell apart because of the fans' and some influential politicians' resistance to a coup against the European Sports Model . That's why I can't help but put the word 'Super' in quotes. Still, three clubs, which collectively account for 7% of global football revenues, are clinging to their dream of a breakaway league: Real Madrid (this year's Champions League winner), FC Barcelona ("Bar?a"), and Italy's Juventus FC ("Juve").

The case has been repeatedly misportrayed as if it was about deciding the legality of the 'Super' League. But that's a non-issue: UEFA itself has made it clear that teams are indeed free to organize their own tournaments. Instead, this dispute involves what sanctions UEFA may impose on those participating in a competition not authorized by it, such as excluding the rebels from domestic leagues run by UEFA's member associations, which are national football bodies. In other words, it's about whether clubs can have it both ways by damaging the integrity of the game through the creation of a breakaway league while still taking advantage of existing football structures in other ways (cherry-picking).

Real Madrid's president would have us believe that this case was a slam dunk for him and his partners. If you ask them, they will soon have UEFA over a barrel. I beg to disagree, mainly for three reasons.

First, the rebel clubs indiscriminately apply competition law from conventional industries to the professional sport sector. Having closely followed antitrust cases for well over a decade, I've come to learn – and to appreciate – that there are valid policy reasons for treating some industries differently from the rest.

Take digital platforms, for instance: the European Commission identified the need for a "new competition tool" as conventional antitrust enforcement turned out a blunt (and too slow) sword to curb certain gatekeepers' abuse of market power. The European Parliament has the Digital Markets Act on its agenda for tomorrow.

On the other end of the spectrum you find professional sports (it's not only about football). In all other industries, a monopoly is economically desirable. If Google's Android operating system disappeared, that would be excellent news for Apple: the removal of the only competitive constraint in the market for smartphone operating systems. Not so in sports where each team not only needs other teams to make the "product" (interesting games and tournaments) but even needs the others to be competitive. Case in point, Bayern Munich has won the German championship (Bundesliga) ten times in a row – and is now urging its rivals to raise funds to become more competitive again.

This unique characteristic is a key element of what is known as the "specific nature of sport". In fact, it is now recognized by the EU's de facto constitution:

"The [European] Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function." (Article 165 TFEU ; emphasis added)

That was not the case at the time of the Bosman ruling, nor when I successfully defended at the EU level Real Madrid's freedom to individually sell their broadcasting rights back in 2007. The ECJ already recognized the relevance of Art. 165 to sports-related cases in para. 40 of its 2010 Olympique Lyonnais SASP judgment :

"In considering [...], account must be taken, as the Advocate General states in [...] her Opinion, of the specific characteristics of sport in general, and football in particular, and of their social and educational function. The relevance of those factors is also corroborated by their being mentioned in the second subparagraph of Article 165(1) TFEU."

As a constitutional statute, Art. 165 is, by the way, far more solid than the so-called Baseball Exemption from U.S. antitrust law. Art. 165 doesn't totally immunize sports bodies from antitrust rules, but greatly ups the ante for the rebel clubs as it reinforces factors that would be afforded considerable weight at any rate.

There's a lot more I could say about the merits of the case, but for now let me just refer you to my (obviously unofficial) translation of an order by a Spanish court lifting an injunction against UEFA in the very same case . You can see there that the judge who is now presiding over the case has serious doubts about the merits of the allegations.

Second, it is instructive to take a critical look at the six questions a Spanish trade judge (who is no longer presiding over the case) referred to the ECJ . The circumstances of that preliminary reference fly in the face of all I know about due process: right after the 'Super' League complaint was assigned to him, the judge not only entered an ex parte preliminary injunction but also sent this request for a preliminary ruling to the ECJ -- prior to any defendant having been served, and without holding a hearing.

Even courts of first instance have the right to refer questions concerning the interpretation of EU law to the ECJ. But if every lower court throughout the 27-country bloc did what Judge Ruiz de Lara did in the 'Super' League case, the EU's judiciary would be facing a serious problem. There's a right way and a wrong way to make a preliminary reference. The right way is for the national court to do its homework and be ready to decide the case except for the question(s) referred to the ECJ. At that stage, the national court will have had the benefit of discussing the scope and wording of a potential preliminary reference with counsel for both parties. The absolutely wrong way is to not even wait until the defendants (in this case, based in Switzerland) have been served...

A glaring omission from the hastily-phrased questions is that half a dozen EU statutes (mostly Article 101 (cartels) and 102 (abuse of dominant position) of the Treaty) are mentioned, but Article 165 (specific nature of sport) is not. That kind of ignorance and selectivity is bound to happen when one judge enters an order after reading what only one party had submitted.

The questions look binary (yes/no), but they actually aren't as they involve a variety of case-specific determinations (such as "objective, transparent and non-discriminatory criteria"). The ECJ is not a trial court. It gives high-level guidance. The most likely answer to each of the six question is "it depends": it depends on how UEFA applies its rules in a specific case, taking into account the specific nature of sport. This means there are various justifications, such as protecting the integrity of the game and ensuring the balance of competitions. Antitrust cases very often turn on such justifications.

By contrast, Bosman was binary. It was about whether certain per se prohibitions governing other employment relationships also applied to professional football players. In the 'Super' League case, I can't imagine that the ECJ would resolve all the questions in favor of a breakaway league in such a definitive form that the Spanish court would have nothing left to decide.

Third, the sports and competition law experts of all those EU member states who made filings in support of UEFA and the European Commission 's experts can't all be wrong. Just last month, the Commission published a new study on the European Sport Model . Note that the Commission is officially the Guardian of the [EU] Treaties . It strikes me as absurd to take a position on the 'Super' League case that would conversely mean that the Commission was showing disregard for the rule of law. It's merely consistent with the rule of law that there is an Art. 165 TFEU, and even if that one didn't exist, one couldn't correctly apply Art. 101 & 102 without recognizing the unique characteristics of professional sports (which, again, doesn't mean to put sports bodies above the law).

All that resistance (including a European Parliament resolution as well as one by what is informally known as the Council of Ministers ) would spell doom for the 'Super' League even in a hypothetical scenario in which the ECJ answered all six questions in its favor. Should it turn out necessary to defend the European Sports Model, the EU could always legislate, and with a strong political will, it just takes one "trilogue" (negotiations between Commission, Council, and Parliament) to reach a political agreement. If Real and its allies had approached this strategically, they'd have had to talk to politicians about this a long time ago (in which case they'd likely have become more realistic about the prospects). In my opinion, they should just have settled the case early on.

One factor that complicates the 'Super' League project is that the UK government threatened with a luxury tax or other measures that would create a strong disincentive for English clubs to join the breakaway league. By now it seems that the leading English clubs are interested in only one thing: they don't want to deal with contract damages claims, which is why they may not have formally left the 'Super' League. They don't want to go forward with it either, and appear to have realized that certain Spanish and Italian clubs just hoped to solve their specific problems.

A hypothetical 'Super' League without English teams (and without Paris Saint-Germain) would not have the presently most popular players on board. It's hard to see how it could succeed commercially.

Is the ECJ case going to be worth following? With my long-standing interest in competition law, and in the application of EU antitrust and cartel rules to sports (due to my work on Real Madrid's behalf back in 2007), I do intend to watch the (delayed) webcast on the ECJ's website. But legal questions can be interesting (and cases can draw a lot of media attention) even without the underlying complaint having merit, or a particular plan being workable...