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European Super League: Spanish Court Issued Interim Measures against FIFA and UEFA

On 20 April 2021 the Commercial Court number 17 of Madrid granted provisional measures forbidding FIFA and UEFA (and any other associated football body) to adopt, for the duration of the main proceedings any type of determination against the Super League or against the teams or players participating in the projected new European competition.

The day before, the Super League backers had sent a 6 page letter to FIFA and UEFA calling for cooperation, but also warning that they had taken legal action to prevent any efforts to block their project.

The Mirror reported that the letter reads as follows:

We are concerned that FIFA and UEFA may respond to this invitation letter by seeking to take punitive measures to exclude any participating club or player from their respective competitions.

We hope that is not your response to this letter and that, like us, your organisations will recognise the immediate benefits of the competition established by SLCo.

We also seek your cooperation and support on how the competition can be brought within the football ecosystem and work with us to achieve that objective.

Your formal statement does, however, compel us to take protective steps to secure ourselves against such an adverse reaction, which would not only jeopardise the funding commitment under the grant but, significantly, would be unlawful.

For this reason, SLCo has filed a motion before the relevant courts in order to ensure the seamless establishment and operation of the competition in accordance with applicable laws.

We invite you to attend on an urgent basis discussion with us regarding the details of the competition and how it can best be accommodated within the football ecosystem.

The Spanish Order

The decision orders the aforementioned bodies to refrain from any action that may affect the launch of the competition or supposes a veto to the participation of the founding clubs in the competitions in which they are currently playing, until the court has fully considered the case. In the event that, prior to the decision on the precautionary measures, any such action has already been carried out, FIFA and UEFA shall take the necessary steps to remove it and to leave it immediately without effect.

While the latest developments – the announcement of the  suspension of the activities of the Super League, triggered by the opposition the initiative has met – have likely rendered the judicial order moot, it is still worth having a look into its background and reasoning. Just like it does, I will use the present tense to report.

The Parties

The applicant is European Super League Company S.L. (in what follows, ‘ESLC’), a limited liability company whose members are: Real Madrid club de fútbol ; Associazione Calcio Milan ; Fútbol Club Barcelona ; Club Atlético de Madrid; Manchester United Football Club ; Football Club Internazionale de Milano S.P.A. ; Juventus Football club; The Liverpool Football Club and Athletic Grounds Limited ; Tottenham Hostpur Football Club;  Arsenal Football Club ; Manchester City Football Club ; and Chelsea FC Plc.

ESLC is the sole owner of the Super League, and the parent company of three other companies in charge of the management and supervision of the ELSC. The Super League aims to become the first European competition outside of UEFA, to be held annually with the aim of maximizing the chances of competing for footballers and clubs of the highest sporting level. Such competition would not prevent participating clubs from participating in their respective national competitions and domestic leagues.

The American investment banking JPMorgan Chase is the major financial backer of the Super League.

The precautionary measures are requested against FIFA and UEFA, two private bodies enjoying a monopoly over the authorisation and organisation of international professional football competitions. The following provisions of the FIFA Statutes are quoted:

Article 22, which requires regional confederations to ensure that international leagues or other similar organisations of clubs or leagues are not formed without FIFA’s consent or approval

Article 61 : FIFA, its member associations and the confederations are the original owners of all of the rights emanating from competitions and other events coming under their respective jurisdiction, without any restrictions as to content, time, place and law. These rights include, among others, every kind of financial rights, audiovisual and radio recording, reproduction and broadcasting rights, multimedia rights, marketing and promotional rights and incorporeal rights such as emblems and rights arising under copyright law

Article 68 : FIFA, its member associations and the confederations are exclusively responsible for authorising the distribution of image and sound and other data carriers of football matches and events coming under their respective jurisdiction, without any restrictions as to content, time, place and technical and legal aspects

Article 71 : FIFA, the confederations and the national federations, enjoy exclusive competence to issue prior authorisation to organise international competitions and expressly prohibits the possibility of holding matches and competitions which are not previously authorised by FIFA, the member national federations or by confederations

Article 72 : 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.

Those provisions are taken up in Articles 49 to 51 of UEFA’s Articles of Association. As a consequence, UEFA is conferred a monopoly on the organisation of international competitions in Europe; international competitions in Europe which have not previously been authorised by UEFA are not allowed.

The monopoly for the organisation and authorisation of international competitions was ratified by FIFA and UEFA on a Declaration of 21 January 2021.

The Claims

Based on Article 102 TFEU, the applicant seeks a declaration of abuse of a dominant position by FIFA and UEFA on the internal football market. Under Article 101 TFEU, it requests a declaration related to the violation of free competition in the internal football market, carried out by UEFA and FIFA through the imposition of unjustified and disproportionate restrictions. It asks as well for injunctive relief: the anti-competitive behaviour of FIFA and UEFA and its future repetition shall be prohibited. Finally, it applies for the removal of the effects of any measure or action that the defendants may have carried out already, directly or indirectly.

The Facts

From the documents accompanying the request for precautionary measures, the Commercial Court infers (among other) that:

.- Several professional football clubs have set up a new professional football competition called “Super League”. They have communicated the creation of said competition to FIFA and UEFA, organizations that until now exclusively organized international professional football competitions.

.- Following that communication FIFA and UEFA made a statement expressing their refusal to recognise the creation of a European Super League restricted to certain clubs. According to the declaration, any player or club participating in that competition would be foreclosed from competitions organised by FIFA and the confederations; all competitions must be organised or recognised by the competent body. The statement was confirmed by another one of 18 April 2021 issued by UEFA, the English Football Association and Premier League, the Real Federación Española de Fútbol, the Italian Federation of football and the Italian league Serie A. A warning regarding the adoption of disciplinary measures in respect of clubs and players participating in the creation of the European Super League accompanied the statement.

.- The European association of professional football leagues published a declaration of unanimous support to FIFA and UEFA in order to coordinate the necessary measures preventing the start-up of the new “Super League” competition and / or to adopt the announced disciplinary measures by FIFA and UEFA. Should those measures be adopted, the clubs and / or players that participated in the Super League would be prevented from participating in the soccer Eurocup of June 2021, the Olympic Games in July 2021, and the World Cup in 2022.

In light of the foregoing, the applicant submits that the monopoly exercised by FIFA and UEFA regarding the organization and management of national and international soccer competitions, as well as the exclusivity in the management of economic returns derived from said competitions, together with the sanctions announced by those private organizations, prevent the existence of free competition in the market of sports competitions. Should FIFA and UEFA implement said measures, the European Super League project would fail due to the impossibility of fulfilling the aforementioned condition of compatibility. In addition, the investments and financial contributions by J.P. Morgan would be lost.

It is also submitted that said measures would affect trade between Member States and constitute an infringement of the following community freedoms:

.- The freedom to provide services regulated in article 56 TFEU by preventing the provision of services by the ESLC.

.- The free movement of workers under Article 45 TFEU, by preventing players from providing their services through participation in the European Super League.

.- The freedom of establishment of Article 49 TFEU, by preventing the creation of the three companies that would be in charge of the management and supervision of the ELSC.

.-The freedom of movement of capital and payments regulated in Article 63 TFEU, preventing intra-community movements of payment and capital linked to the European Super League.

Analysis and Findings of the Court

The conditions required to grant provisional measures are satisfied: Article 728 of the Spanish Civil Procedure Code (LEC) – fumus boni iuris ; periculum in mora ; Article 733.2 of said Code – conditions to grant provisional measures inaudita parte.

Article 101 and 102 TFUE apply to the merits.

Fumus boni iuris

It is established (for the purposes of grounding provisional relief) that FIFA and UEFA have abused their dominant position. FIFA and UEFA Statutes subject the creation of alternative sports competitions to the authorization of said private bodies, and allow disciplinary measures to be applied against football clubs that do not request such permission. The prior authorization is not dependent on any type of limit or objective and transparent procedure; it relies on the discretionary power of both private bodies, which, due to the monopoly in the organization of competitions and the exclusive management of the economic returns derived from sports competitions, have a clear interest in rejecting the organization of the aforementioned competitions.

De facto, such actions by FIFA and UEFA imply unjustified and disproportionate restrictions to competition in the internal market. The statutory rules of FIFA and UEFA do not include provisions guaranteeing objectives of general interest in granting prior authorization to the organization of football competitions. Nor do they contain objective and transparent criteria to avoid discriminatory effects, or conflicts of interest, with FIFA and UEFA in the denial of authorization to organize alternative sports competitions by the clubs integrated in the federations affiliated with said private bodies.

Moreover, an abuse of dominance position can be inferred from Articles 67 and 68 of the Statutes of FIFA, in that they oblige the clubs to assign the commercial rights of the sports competitions in which they participate.

Periculum in mora

In the course of the proceedings FIFA and UEFA could adopt disciplinary measures as announced in the statement referred to above, which the consequence that the European Football Super League could not be implemented. This would cause irreparable harm to clubs and players called upon to participate in the Super League ; it would also prevent the enforcement of any judgment on the merits for the claimants. Moreover, the imposition of some of the disciplinary sanctions announced by FIFA and UEFA would seriously compromise the financing of the Super League, having regard to the conditions laid down in the shareholders’ and investment agreement of the founding clubs of the European Football Super League.

Proportionality and suitability

The provisional measures requested are proportionate and suitable to guarantee the protection sought. They prevent actions on the side of FIFA and UEFA that could render ineffective any protection granted in a future judgment. The measures requested are intended to protect free competition in the relevant market, and to impede the adoption of measures by FIFA and UEFA, such as those already announced, which for the reasons already explained would definitively thwart the implementation of the European Football Super League project.

Inaudita parte

The interim relief requested must be adopted inaudita parte. The defendants having publicly announced the imminent adoption of measures restricting free competition; it is therefore urgent to adopt the relief applied for without hearing the other parties. Regard should be paid to the next celebration of the semi-finals of the competition organized by UEFA, the “UEFA Champions League”, where up to three of the founding clubs of the European Football Super League participate. The adoption of the disciplinary measures announced by FIFA and UEFA could compromise the participation of those football clubs in the competition; the negative impact on free competition, latent in the provisions of the FIFA and UEFA Statutes above mentioned would thus crystalize, causing irreparable damage of an economic and sporting nature to the clubs and players affected.

The fact that FIFA and UEFA have their domiciles abroad and the need to seek legal assistance to serve the present proceeding, with the consequent greater delay in the summons of the parties to a hearing in a near period of time, further evidence the need to grant the measures inaudita parte.

Caution under Article 728.3, para 2 LEC

For the measure to be granted, the applicant has to provide a bank guarantee of 1,000,000 euros.

 

Final note : No appeal is possible against the decision (opposition can nonetheless be filed before the same court, so that a contradictory hearing is held in which the measures are reconsidered in the light of the allegations and evidences of both parties).

Legal Secretary CJEU Full Professor PIL, University of La Laguna (Spain) Senior research fellow MPI Luxembourg (on leave)

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