Translation of Madrid Commercial Court's order of April 20, 2022, lifting the preliminary injunction in the Super League case

COMMERCIAL COURT No. 17 OF MADRID

C/ Gran Vía, 52, Fifth Floor - 28013

Telephone: 917201073

42020579

NIG: 28.079.00.2-2021/0091553

Proceedings: Part Concerning Preliminary Injunction 150/201 - 0001 (Prior Preliminary Injunction LEC 727)

In the Matter of: Other topics than the main proceeding

TWO DECISIONS

Plaintiff: A22 SPORTS MANAGEMENT SL [Super League consulting firm] and EUROPEAN SUPER LEAGUE COMPANY S.L.

COUNSEL OF RECORD Mr. MANUEL SANCHEZ-PUELLES GONZALEZ-CARVAJAL

Defendants: LIGA NACIONAL DE FUTBOL PROFESIONAL [Spanish professional soccer league body]

COUNSEL OF RECORD Mrs. CONSUELO RODRIGUEZ CHACON

REAL FEDERACIóN ESPA?OLA DE FúTBOL [Spanish national soccer association]

COUNSEL OF RECORD Mrs. BEATRIZ MARIA GONZAELZ RIVERO

UEFA

COUNSEL OF RECORD Mr. JAIME QUI?ONES BUENO

FIFA

[no counsel named]

O R D E R NUMBER 73/22

THE MAGISTRATE JUDGE WHO HANDS DOWN THE ORDER: Mrs. SOFIA GIL GARCIA

Place: Madrid

Date: April 20, 2022

THE FACTS

1. On April 20, 2021, the Court ordered an ex parte preliminary injunction against FIFA and UEFA further to the petition of ESLC S.L..
2. On July 13, 2021, attorney at law Mr. Jaime Qui?ones Bueno filed an opposition brief on behalf and in representation of UEFA.
3. On September 28, 2021, the proceedings were stayed and the preliminary injunction hearing was vacated. Subsequently to resuming the proceedings, the parties were summoned to the hearing.
4. On March 4, 2022, the parties were summoned to the hearing and appeared in a timely and formally correct manner. The hearing was adjourned as per a stipulation [of the parties] for the purpose of conducting negotiations leading to an agreement.
5. On April 1, 2022, the hearing continued, and the parties appeared on a timely and formally correct manner. Defendant UEFA affirmed its opposition, Co-Defendants LaLiga and RFEF stated their positions, and Plaintiffs ESCL and A22 moved to uphold the preliminary injunction.

The taking of evidence was limited to documents, which was admitted on the terms stated in the recording. The parties stated their brief conclusions [of law] and the Court took the matter under advisement.

LEGAL REASONING

1. Legal Framework

The governing law is the legal framework relating to opposed preliminary injunctions. Art. 739 of the [Spanish] Code of Civil Procedure states:

In cases in which the preliminary injunction has been entered without prior hearing of the defendant, the latter can state its opposition within a period of 20 days, counting from service of the preliminary injunction order.

And Article 740 of the [Spanish] Code of Civil Procedure states with respect to the grounds of opposition:

He who states his opposition to a preliminary injunction shall be able to adduce in its support, without limitation, as many facts and reasons as may be held against the origin, requirements, objective, type and other circumstances of the effectively adopted measure(s).

He shall furthermore be able to offer security as an alternative [to enforcement] as set forth in Chapter V of this law.

Finally, Art. 741 of the [Spanish] Code of Civil Procedure states with respect to service of the opposition on the movant, the appearance at the hearing, and the decision:

1. The opposition brief shall be conveyed by the Clerk of the Court to the movant, proceeding in accordance with what is set forth in Art. 734.
2. After conducting the hearing, the court shall decide within a period of five days on the opposition by way of an order. Should the court uphold the preliminary injunction as entered, it shall impose the costs on the opposing party. Should the court lift the preliminary injunction, it shall order the movant to bear the costs and to pay wrongful-enforcement damages.
3. The order on the opposition shall be appealable. An appeal does not stay enforcement.

2. The Parties' Positions

On April 20, 2021, a preliminary injunction order was entered. The following was ordered:

"I have before me the request for an ex parte preliminary injunction brought by attorney at law Mr. Manuel Sánchez Pulles Carvajal, acting in the name and on behalf of European Superleague Company S.L., and I accordingly decree the following:

1. For the duration of the main proceeding [in this case], FIFA and UEFA are ordered, to refrain from adopting any measure or action, or to issue any declaration or communication, to the effect of hindering or complicating, directly or indirectly, the preparation of [the launch of] the European Super League of football.
2. For the duration of the main proceeding [in this case], FIFA and UEFA are ordered to ensure that any measure or action they may adopt as needed, and any declaration or communication they may issue as needed, will not hinder or complicate, directly or indirectly, the preparation of [the launch of] the European Super League of football.
3. For the duration of the main proceeding [in this case], FIFA and UEFA are enjoined from adopting any measure or action, and from issuing any declaration or communication, that would hinder or complicate, directly or indirectly, the setup and the development of the European Super League of football and the participation of clubs and players therein.
4. For the duration of the main proceeding [in this case], FIFA and UEFA are ordered to ensure that any measure or action they may take as needed, and any declaration or communication they may issue as needed, will not hinder or complicate, directly or indirectly, the setup or development of the European Super League of football.
5. For the duration of the main proceeding [in this case], FIFA and UEFA are enjoined from directly or indirectly (through their member associations, confederations, licensee clubs, or national leagues) announcing, threatening with, preparing, initiating or adopting whatever disciplinary measures or sanctions (or directly or indirectly instigating or working toward the announcement, threat with, preparation, initiation and/or adoption of said disciplinary measures or sanctions by third parties) against the clubs, executives and [other] persons of the clubs and/or players who participate in the preparation of [the launch of] the European Super League of football.
6. FIFA and UEFA are enjoined from, directly or indirectly (through their member associations, confederations, licnesee clubs or national leagues), excluding the clubes and/or players who may participate in the preparation of [the launch of] the European Super League of football from whatever international or national club competitions they regularly participate in or for which they meet the requirements for participation.
7. [TRANSLATOR'S NOTE: The original document contains a clerical error: a passage was pasted in the wrong place] For the duration of the main proceeding [in this case], FIFA and UEFA are ordered to instruct -- through or by means of their own regulatory instrumentalities, guidelines, decisions and directives (within the meaning of Art. 52 of the UEFA Statute), and by way of demanding compliance in the event they [the guidelines etc.] should not be abided by or observed -- their member associations (including national federations), confederations, licensee clubs and national leagues to comply with the orders and enjoinders contained in the previous sections and, in particular, to warn them [their member associations etc.] that no act out of compliance with the statutes and rules of FIFA and UEFA, its member associations (including national federations), confederations or national leagues arising from the preparation or setup of or participation in the European Super League of football will be allowed to be alleged by the member associations of FIFA and UEFA, confederations, licensee clubs or national leagues to constitute a cause of sanction, exclusion, claim or whatever analogous measure toward the clubs, their executives or staff or their players in [connection with] international or national competitions.
8. FIFA and UEFA are ordered to take the necessary actions in order to undo, and to immediately deprive of any effect, whatever conduct described in the previous sections that may have occurred prior to this present preliminary injunction order.

(i) UEFA's Opposition

UEFA opposed the entry of the preliminary injunction based on the following arguments, which are laid out here in their totality and then developed further in the subsequent sections:

1. Lack of in personam and in rem jurisdiction on the Court's part. In the same terms as those laid out as in its motion to dismiss for lack of jurisdiction, UEFA argues a lack of personal and subject matter jurisdiction of this Court with respect to the main proceeding, which suggests a lack of jurisdiction with respect to the preliminary injunction; and in its [UEFA's] particular case, argues that the Swiss courts have subsidiary jurisdiction.
2. Violation of Art. 24 of the Spanish Constitution insofar as UEFA has been deprived of defenses by having been denied access to the documents on which Plaintiff bases its case. With respect to such documents, a lack of standing is alleged.
3. Supervening loss of the subject matter in dispute.
4. Non-attendance of the targets of the preliminary injunction.

At the hearing, UEFA alluded to various new facts:

5. New reasons have allegedly arisen concerning the non-existence of protection of the project [i.e., the European Super League]. To that effect, UEFA points to various reports and legal opinions of diverse organizations and institutions that speak out on the impossibility of executing on Plaintiff's project.

6. Furthermore, [Defendant] insists on the impossibility of developing said project as a result of most of the participating clubs having abandoned it. Finally, an allusion is made to Plaintiffs' inactivity.

(ii) Co-Defendants' Assertions

The other parties, which with the exception of FIFA also attended the hearing, stated the following assertions:

1. LaLiga asserted that the targets of the preliminary injunctions were not heard and joined in the opposition stated by Co-Defendant UEFA. Attention is drawn to new facts that arose subsequently, to various statements, and to declarations concerning the abandonment of the project by Plaintiffs. At the same time it is stated that said Project, while not having materialized, has already inflicted various forms of damage, particularly in connection with the commercialization of audiovisual rights, which constitutes an actual impact. Finally, [LaLiga] advocates for the preservation of the current system, which guarantees a connection between national and international leagues.
2. Finally, the [Spanish Football] Federation declared its joinder in the opposition brief.

(iii) [typo in the original document: ii, but iii must have been meant] Plaintiffs' Assertions

1. Plaintiff ESLC moved to uphold the preliminary injunction and defended right to the freedom of association and to free competition. [ESLC] exposed contradictions on the part of Defendants who dispute the actual existence and feasibility of the Project but without which it would have hindered them from adopting limiting and restrictive decisions with respect to the commercialization of audiovisual rights as well as threats concerning the measures that might have been adopted. Furthermore, it is asserted that the Project is open and that its terms are yet to be defined. Finally, [ESLC] disagrees with the system of prior authorization [i.e., sanctioning of a new competition by existing football bodies], which is [alleged to be] neither transparent nor functional.
2. Co-Plaintiff A22, in similar terms, joined in the motion to uphold the preliminary injunction. [A22] highlighted certain [written] observations [submitted to the ECJ], with [member] states such as Luxembourg and the Czech Republic allegedly having supported the Project and others, such as Germany, allegedly not having declared themselves in opposition. Finally, [A22] expresses the view that the system of prior authorization provides the Co-Defendants with excessively broad wiggle room to justify a denial [of an approval of a new competition].

3. In personam and in rem jurisdiction

The only provision that the [Spanish] Code of Civil Procedure devotes to in personam and in rem jurisdiction in connection with preliminary injunctions is its Art. 723.1, which says that "a court shall have jurisdiction over motions for preliminary injunction if it is hearing the case in the first instance or, if the proceedings have not commenced yet, will have jurisdiction over the complaint in the main proceeding."

This Judge has already determined that it has in personam and in rem jurisdiction over the main proceeding. Reconfirmed as per order of April 20, 2022.

The arguments advanced in opposition to the preliminary injunction are identicalto those that have been addressed in the main proceeding.

It would be questionable if by means of the preliminary injunction the same - already addressed - arguments were opposed, as they should apply equally to the main proceeding and the preliminary injunction, which at the same time entails that their adjudication in the present context can be subject of an appeal [...]

Defendant states its opposition to the preliminary injunction, prior to moving to dismiss for lack of jurisdictions; and as a result of having to address various procedural events the adjudication of the opposition to the preliminary injunction has been delayed, which entails that the decision on the motion to dismiss for lack of jurisdiction is definitive. [...]

With respect to those procedural facts I refer to the order resolving the motion to dismiss for lack of jurisdiction and the arguments outlined therein.

[...]

It bears remembering, with a view to the grand picture, that this judge, when deciding on the arbitration request, accepted Plaintiffs' arguments that stressed the independence of their legal personality from the clubs, which are partners of the commercial entities. This was relevant in order to determine that the acting entities were not bound to the statutes of UEFA. Defendants stressed the [functional] identity of the parties, the bad-faith use of commercial entities by the clubs, and urged the application of the doctrine of lifting the veil [apparently meaning that the focus should be functional, not formalistic].

[...]

Explained differently, as stated in the order of February 21, 2022, Plaintiffs' partner clubs are indeed bound to the UEFA Statutes, and UEFA could based on its regulations open a disciplinary proceeding or impose sanctions - which the preliminary injunction purports to prevent. However, as a matter of in personam and in rem jurisdiction, it is not for this Court to opine on that fact and its justification or equitability. Therefore, it is not possible either for this Court to intervene to the effect of preventing such actions with respect to those third parties. In this case, and consistently with what the said order explained, this Court does not assume in personam or in rem jurisdiction to decide on that question. As a result, it is necessarily impossible to order an injunction that relates to "clubs, executives or players".

The Court cannot accept Plaintiff's self-serving position that it [Plaintiff] justifies this Court's jurisdiction precisely with the fact that the commercial entities are not bound by UEFA's regulations, asserting that Plaintiffs are corporations with their own legal personality that cannot be equated or identified with the clubs, whilst a sensu contrario stressing that measures can be taken with a view to those other parties in order to avoid that the [Super League] project would be thwarted.

This Judge needs to be coherent and consistent with the logic of the order of February 21, 2022, which means that at least some of the requested relief - items 3, 5, 6 and 7 - cannot possibly be adopted due to a lack of jurisdiction, as it would affect natural and legal persons outside of this proceeding and, with respect to those persons, [would affect] disciplinary measures and sanctions should they be bound by UEFA's statutes.

Plaintiff's argument for the adoption and affirmance of such injunctive relief is based on the proposition that sanctions would frustrate the Super League project, effectively arguing that the protection its business partners means to protect its own business. But when the objective is to defend [this Court's] jurisdiction, it is denied that the legal person that acts as Plaintiff is just being used for this purpose. In the opposition hearing, Plaintiff itself emphasized that the objective of the proceeding is to decide on free competition and the free development of [football] competitions, which stands in contradiction to the concept of limiting the objective of this case to the protection of the Super League project, which is what the preliminary injunction would support.

Plaintiffs' interests cannot conflict with the rules governing [the Court's] jurisdiction - and raise contradictory arguments as has been explained -, such as being bound to the Statutes of its business partners - which are clubs -, as they were perfectly aware at all times, and in light of which they had to, and were able to, act at all times.

From the analysis provided it follows that there is a controversy or conflict with respect to the application of the rules governing [the Court's] jurisdiction with respect to the main proceeding and the preliminary injunction sought.

Consistently with the reasoning that has been developed here, UEFA has reason on its side when it maintains that it is the task of its disciplinary bodies and the independent arbitrators of the Court of Arbitration for Sports (CAS) to decide on possible sanctions concerning the clubs. Before those arbitrators, the affected clubs should defend themselves and request protective measures. [...]

All of that considered, I must conclude that in light of the order that rejected the jurisdictional challenge one must apply the same standard and, therefore, deem that this Court lacks jurisdiction to take measures relating to the clubs and other third parties outside of this proceeding.

4. Standing

Defendant has alleged that the Plaintiff entities lack standing.

Without prejudice to the positions already taken in the main proceeding as well as in the opposition brief, the basis for a lack of standing would be linked to the lack of validity of documents number 10 and 26 of the Complaint.

A decision about said documents will be reached in the further proceedings, but at this stage the related assertions by UEFA have to be rejected.

[...]

5. Preliminary injunction criteria. (i) Likelihood of success on the merits

(i) UEFA's Position

For an overview, these are the pillars of UEFA's argument:

UEFA exercises a regulatory and rulemaking function in European football that has been specifically recognized by the European Commission as well as the European Council. Therefore, a sporting rule is compatible with the competition law of the European Union provided that (i) it is based on a legitimate objective, (ii) inherent to the achievement of that objective, and (iii) proportionate.

The burden of proof falls on Plaintiff, which asserts a violation of competition rules. There is a presumption that the regulation of sport is compatible with EU competition law. The rules protect [the principle of] sporting merit.

It has been accepted as necessary that there is a system of prior authorization of sporting competitions [...] The [related] statutes and regulations do not constitute a violation of competition law with respect to Art. 101 TFEU, nor do they contravene the rule of free movement in the EU.

Furthermore, UEFA has the legal duty neither to facilitate nor to participate in any violation of competition law. The Shareholder Agreement of the [Super League] Founding Clubs allegedly amounts to typical cartel practices of market division and exclusion from a market as well as price-fixing.

The objective of the Founding Clubs is to preserve their status by excluding all others. The Super League is a horizontal cartel for the distribution of benefits from restricting competition. It is a closed league, inherently contrary to the principles of openness, equality, solidarity, and promotion and relegation, which are the core of the European Sports Model.

(ii) Adjudication of the controversy

The first preliminary injunction criterion requires an examination of the requirement of a likelihood of success on the merits with respect to the violation of the prohibition of an abuse of a dominant position.

It bears remembering the reasons of the jurisdictional order. For an overview, the order stated that FIFA and UEFA wield regulatory power over international football competitions and have the ability to take disciplinary measures. The system of prior authorization of the organization of competitions would therefore not be acceptable or real: it would represent an exclusive right by Defendants to manage and organize competitions.

Defendants reject those arguments. Therefore, at the present [preliminary injunction] stage the likelihood of success on the merits must be analyzed in terms of whether there has been an abuse of a dominant position by UEFA and FIFA in terms of hindering the organization or authorization of alternative competitions, as well as in terms of exclusively assuming the role of controlling and managing such competitions. There will be no likelihood of Plaintiffs' success on the merits in the event that the rules that legitimize the actions of the relevant organizations are shielded by an objective and reasonable justification.

This Judge agrees with the arguments raisaed by UEFA in its opposition brief, and does so with a view to the particular parameters and the specifics of the affected market, as will be outlined in the following.

First, it must be taken into consideration that UEFA as well as FIFA are duly recognized associations in the field of sports that exercise certain functions of control and organization of sporting competitions. Furthermore, both are associations of enterprises that develop activities of a commercial nature in a football context. They organize and commercialize international club competitions, without prejudice to the fact that third parties desiring to organize such competitions are bound by the requirements laid out in the regulations of FIFA and UEFA.

There is no dispute over the position of dominance in the football market at the European level with respect to the the organization of competitions and their control and management. It is [only] the abusive exploitation of that position that would lead to illegal and anticompetitive conduct.

Said institutions have been operating in the sports market for years, subject to their own rules. That has been accepted by operators and intervenors. It is key to keep that in mind with a view to what we are concerned with - the likelihood of [Plaintiffs'] success on the merits - given that we are not looking at a situation in which there would actually have been any action by said institutions that would serve as evidence of a direct violation of competition law. In reality, Defendants have not exhibited any conduct nor have they intervened nor have they spoken out outside of this proceeding. In cases involving an abuse of a dominant position, one usually finds an active conduct by the dominant institution. In the field of sports, this would be the modification of regulatory rules or statutes or of contract terms [...]

This case is definitely about the very system and its rules, not in light of a concrete act, action or decision that abusively applies the rules. That does not mean that we are looking at a system of perfect competition, but in the preliminary injunction context it is key to consider that based on indicia [...] there has been acquiescence; and that is precisely contrary to the likelihood of success on the merits that Plaintiffs claim.

Second, there cannot be a presumption of an abuse of a dominant position from the position of control in the market of organizing competitions, which FIFA and UEFA appear to possess [...]. It cannot be assumed for the purpose of a preliminary injunction that Defendants have an unjustified and arbitrary power to impede the entrance of new competitors in the EU's football market, which by object and effect suggests a restraint of competition.

As has been explained, both associations have a position of control and organization that has so far been accepted in the football market, but they submit to their own regulatory framework. At this procedural stage, we shall not analyze that regulatory ramework, but it its warranted to take note of its acceptance on the part of the clubs and UEFA's members. The football market must comply with the principles inherent to it, while at the same time it must reconcile them with its economic interests. That is why its structure is a pyramid [...]

[...] It has been explained that there has not been any action or decision on the part of Defendants that would violate said rules [...] but it is the set of rules itself that the Complaint directly challenges.

In order to determine whether it is reasonable and objective one must focus on the basic principles of the sports market [...] To analyze whether the system of prior authorization [of competitions] is illegal one must look at whether the restriction is inherent to the achievement of a legitimate objective, and proportionate, as per applicable case law (Wouters, ISU, Meca Medina).

In this regard, Article 165.2 TFEU stresses that the European Union endeavors to develop the European dimension of sports, to promote equality and the openness of sports competitions, and the cooperation between sports bodies, protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest ones. Consistently with the foregoing, the General Court's ISU decision explained:

"101. In that regard, it must be noted that the Court of Justice has previously recognised that the protection of the integrity of the sport constitutes a legitimate objective (judgment of 18 July 2006, Meca-Medina and Majcen v Commission, C?519/04 P, EU:C:2006:492, paragraph 43). However, the pursuit of legitimate objectives cannot in itself suffice to preclude a finding of restriction of competition by object if the means used to attain them are contrary to the provisions of Article 101 TFEU (see, to that effect, judgments of 6 April 2006, General Motors v Commission, C?551/03 P, EU:C:2006:229, paragraph 64 and the case-law cited, and of 20 November 2008, Beef Industry Development Society and Barry Brothers, C?209/07, EU:C:2008:643, paragraph 21). It is appropriate in particular to examine whether the restrictions in question are inherent in the pursuit of those objectives and proportionate to those objectives (see, to that effect, judgments of 19 February 2002, Wouters and Others, C?309/99, EU:C:2002:98, paragraph 97, and of 18 July 2006, Meca-Medina and Majcen v Commission, C?519/04 P, EU:C:2006:492, paragraph 42)."

And int he present case, in which the economic interests are so relevant - without a doubt, more than in any other sport at the European level -, the risk of straying from sporting principles is much greater. Therefore, rules that guarantee and protect those principles are necessary, so that sporting principles may be reconciled with economic interests.

In this regard, the ECJ's Meca Medina judgment states that not every restriction is contrary to free competition, as it may be duly justified by a legitimate objective:

"45. Therefore, even if the anti-doping rules at issue are to be regarded as a decision of an association of undertakings limiting the appellants’ freedom of action, they do not, for all that, necessarily constitute a restriction of competition incompatible with the common market, within the meaning of Article 81 EC, since they are justified by a legitimate objective. Such a limitation is inherent in the organisation and proper conduct of competitive sport and its very purpose is to ensure healthy rivalry between athletes."

The control that Defendants may exercise over the organization of competitions does not per se constitute an abuse of a dominant position. At the preliminary injunction stage, the likelihood of [Plaintiffs'] success on the merits must be denied, as no anticompetitive effects can be inferred from the existing system as alleged, without Plaintiffs even having tried to act in conformity with the established framework.

On that basis, it has already been explained that not every sporting rule that imposes requirements or the fulfillment of prerequisites can be considered an impediment to competition. Furthermore, one must take into consideration the particular characteristics and circumstances of each requirement. For that matter, the aforementioned ECJ judgment in Meca Medina, which analyzed whether an antidoping sports rules was capable of impeding competition, explained:

"42. Next, the compatibility of rules with the Community rules on competition cannot be assessed in the abstract (see, to this effect, Case C-250/92 DLG [1994] ECR I-5641, paragraph 31). Not every agreement between undertakings or every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 81(1) EC. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives (Wouters and Others, paragraph 97) and are proportionate to them."

With respect to this and in the sports context, one also needs to pay heed to what the General Court explained in its ISU judgment: "108. In that regard, it must be noted that it is legitimate to consider, as the applicant submits (see paragraph 105 above), that, given the specific nature of the sports, it is necessary to ensure that sporting competitions comply with common standards, seeking in particular to ensure that competitions take place fairly and the physical and ethical integrity of sportspeople is protected. The applicant was also reasonably entitled to consider that a pre-authorisation system, intended to ensure that any organiser respect such standards, was a suitable mechanism to achieve that objective."

To the same effect, the [European] Commission has stated [TRANSLATOR'S NOTE: this presumably a quote from written observations submitted by the Commission to the ECJ in the Super League case] that "Art. 101 TFEU does not bar FIFA and UEFA from applying a requirement of prior authorization of the creation of a new club competition such as the Super League, to the extent that such requirement is inherent, taking into account the specifics of the envisioned competition, to the achievement of a legitimate objective and proportionate to that objective. The protection of the principles of participation based in sporting merit and equal opportunity, which is the basis of the pyramidal structure of European football, constitute legitimate objectives."

[...]

The Court deems, at the preliminary injunction stage and at least in at this procedural juncture, the system of prior authorization of alternative competitions by UEFA and FIFA to be reasonable and justified; for the purpose of safeguarding equal opportunitites for the clubs participating in the sports market; [...]

[...]

For all that has been explained, the Court agrees with UEFA's opposition as it relates to this criterion, which necessitates lifting the preliminary injunction.

6. Preliminary injunction criteria. (ii) Risk of procedural delay [TRANSLATOR'S NOTE: this means that there is a sense of urgency requiring a preliminary injunction as the moving parties cannot await the outcome of the main proceeding]

(i) UEFA's Position

Defendants argue that the second one of the preliminary injunction criteria is not met either, as the Project has allegedly failed. They stress that the objective of the preliminary injunction was to avoid that sanctions against the clubs could frustrate the implementation of the Project, but that one is no longer viable and will not be financed, which is why there is no sense of urgency.

Plaintiffs disputed this position and maintained that their Project is still alive.

(ii) Adjudication of the controversy

[...]

The fundamental principle of the preliminary injunction as ordered was to avoid the possible and potential sanctions or restrictive measures that UEFA and FIFA might have adopted against the member clubs of the Plaintiff entity that would participate in the Project.

To determine whether this requirement is met is, however, not possible in the abstract nor on the basis of a generalized hypothesis. [...]

There is not even a minimal showing that the threat of or actual imposition of sanctions on the three remaining clubs would result in the impossibility of implementing the Project, which is independently funded. Plaintiffs insist that the financing would be frustrated, but what is certain based on what has been explained is that the partners and the Plaintiff entities are independent legal persons and, in any event, at the time when the Project was developed, the actors - including the financial entities - were perfectly aware of the potential consequences, which did not prevent them from securing funding. Therefore, it cannot be supposed or presumed that eventual sanctions would frustrate the agreement on funding. It is not possible to analyze whether the funding would or would not be affected by the risk or imposition of sanctions as Plaintiffs remain silent with respect to that extreme scenario. Besides document no. 26 and the Shareholder Agreement (doc. no. 10), which documents are not conclusive with respect to the effects we are concerned with, the Court does not have concrete data based on which to analyze the assertion. There are no indicia either to ascertain that the business partners could not cope with the sanctions in light of the economic power of the various clubs. The foregoing is without prejudice to the fact that even Defendants have an economic interest in the ordinary and regular development of sporting activities by the participants.

[...]

Therefore, consistently with what has explained in this part and the previous ones, this Judge deems that the preliminary injunction needs to be lifted with respect to the opposing party [i.e., UEFA].

Finally, Co-Defendant FIFA has not stated its opposition [...]

7. Access to documents

Defendant maintains that it has suffered a material defenselessness as it felt forced to state an oppositoin without having access to complete versions of documents no. 10 - Shareholder Agreement - and no. 26 - Letter of April 18, 2021, concerning the financing agreement.

The lack of complete access to the content of said documents results in UEFA not being able to fully develop its defense [...] Furthermore, documents no. 10 and 26 cannot be admitted as evidence in the main proceeding, nor in connection with the preliminary injunction, as long as they are not complete and their full content cannot be known by the party to which they are prejudicial.

In connection with that, standing is being called into question. ESLC bases its standing on documents no. 10 and 26 of the Complaint, based on which it claims to be the owner of the Project, which would follow from the Shareholder Agreement.

The question related to the complete production of the content of the related documents has been the subject of decisions as per the order of May 7, 202, and July 1, 2021, the latter of which was definitive. Both those decisions precede the opposition to the preliminary injunction. Therefore, that controversy has been adjudicated and resolved, and there will not be a further ruling in that regard.

8. Supervening loss of the subject matter in dispute

[to be decided in the main proceeding, not at the preliminary injunction stage]

9. Costs

[given a multitude of unanswered questions and the complexity of the case, no determination on costs is made at this stage]

Having considered the cited pleadings and the remaining documents,

-ORDER-

I AGREE WITH UEFA's opposition to the preliminary injunction entered as per the order of April 20, 2021, and GRANT the motion to lift said preliminary injunction

WITHOUT IMPOSING costs.

The security that has been deposited shall be returned.

This decision is not final. It can be appealed within a period of twenty days by giving notice to the 28th Section of the Audiencia Provincial de Madrid [Madrid Appeals Court] as per Art. 741.3 [Spanish] Code of Civil Procedure.

It is so decided, mandated and signed by Sofía Gil García, Magistrate Judge of the Madrid Commercial Court no. 17.

The Magistrate Judge The Clerk of the Court