Legal Ramifications of European Super League (ESL)
European Football has been on Tenterhooks due to clandestine collusion of 12 elitist clubs that paved way for "breakaway" Super League. In less than 48 hours, all Six Premier League (EPL) clubs have withdrawn their representation in ESL owing to resounding public sentiment and probable legislative intervention by British Parliament.
As sports aficionado and supporter of Manchester United, I felt the earnest need to highlight legal implications and challenges around such a callous move by football clubs. It is a moot point whether formation of ESL poses an anti-competitive challenge to UEFA and FIFA.
Article 72.1 of the FIFA Statutes most explicitly states that: “Players and teams affiliated to member associations or provisional members of the confederations may not play matches or make sporting contacts with players or teams that are not affiliated to member associations or provisional members of the confederations without the approval of FIFA”. It is well known that ESL is neither affiliated to member associations of FIFA nor has been constituted with the approval of FIFA or UEFA.
The argument of Premier League Clubs that they would continue being part of EPL while playing ESL matches on weekdays (like Champions League fixtures) falls flat as rule B.14.5 of the Premier League Rules states that membership of the EPL imports a contractual obligation to ‘abide by the statutes and regulations of FIFA. The Football Association (FA) is the national governing body for football in England and is responsible for sanctioning competition rule books, including the EPL, and regulating on-field matters. Although FA is not involved in day to day functioning of EPL, the Premier League Rules are approved and sanctioned by the FA each year.
FA Rule B1.1 restrict a club that is affiliated to the FA from playing in a competition not sanctioned by the FA. The six football clubs are required to adhere compliance with statutes of FIFA and UEFA from time to time in accordance with FA Rule A1.2. This perhaps also means the six clubs cannot selectively chose to remain a member of FA, play EPL and chose not to comply with UEFA and FIFA regulations.
We can cast our reliance on FA Rule E9 which lays down that an attempt by participant or any agreement with any other person to act in breach of any provision contained in FA rules shall be treated for the purpose of rules as if a breach of relevant provision had been committed.
FA Rule E1 defines “misconduct” as including any breach of the Premier League Rules or indeed the FIFA statutes. The FA council may still exercise its right to impose a hefty penalty on these six clubs that retracted on their decision to join the ESL. A far-fetched punishment can be expelling the clubs from membership of EPL through a special board resolution vide. Rule B.7 of Premier League Rules.
From contract law perspective, formation of ESL would lead to plethora of lawsuits and tortious interference upon players, sponsors, broadcasters, and football clubs for breach of their existing contractual obligations. Further UEFA, FIFA or The FA would have tried to implicate these clubs for divulging proprietary- confidential information, breach of data privacy on intellectual property rights front.
From competition law perspective, it is fair to rely on ratio of European Court of Justice in Bosman ruling that players have right of free movement from one soccer association to another. Thus a “ban” of ESL player from another league or national team could spark a competition law challenge. ESL’s cause is further strengthened by recent 2020 decision of General Court of European Union which held that eligibility rules of International Skating Union (ISU) and restriction placed on two Dutch Skaters on participating in events that compete with those organized by ISU, was a violation of EU competition law. The court took a liberal approach and observed that ISU’s penalty system was disproportionate and a restriction on earning opportunities unduly interfered with Skater’s economic rights.
In present scenario, courts would have to dive into intriguing question of whether a threat of FIFA World cup or UEFA Euro ban is compatible with European Competition Law and. One argument against the ESL is that, as a closed competition without possibility of relegation and promotion, it constitutes an anti competitive agreement in violation of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), as well as possibly leads to creation of a collective dominant position. Article 101(1) TFEU prohibits agreements between "undertakings" ( the participating football clubs) that have as their object or effect the prevention, restriction, or distortion of competition anywhere within the EU market. ESL’s line of argument would be that its very formation offers a viable alternative to fans and spectators to choose between two European competitions and is pro-competitive in nature.
In my personal view, right of fair competition trumps the right of free competition of a few top clubs all day long. The premise that 12 founding clubs can never be relegated from ESL despite their performance and position is detrimental to spirit of game. While the broadcasters have benefited the most out of a pandemic, the clubs can only testify for their shrinking revenues. The announcement of ESL may just be a pressure tactic to get UEFA to prepone the long impending reforms which is expected to revolutionize the revenue distribution and change format of Champions League. In light of recent developments - demise of ESL is imminent but definitely there is bigger picture to it.
Man continues to live on Hope!