On
Article 101 TFEU states: "The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market..."
Article 102 TFEU states: "Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States."
The main proceedings were brought by the applicant, European Superleague Company SL (the "ESL") against
- Whether or not the way the
FIFA /UEFA Rules were drafted breached competition law in terms of Article 101 TFEU; and - Whether or not
FIFA andUEFA held a dominant position as provided for in Article 102 TFEU in the world of football.
Article 73 of the FIFA Statutes states: "Associations, leagues or clubs that are affiliated to a member association may only join another member association or take part in competitions on that member association's territory under exceptional circumstances. In each case, authorisation must be given by both member associations, the respective confederations and by
Background to the case
The ESL is a company governed by private law which was established in
The ESL's main goal was to set up a fresh and exciting professional football competition, to be called the
- 12-15 professional football clubs having the status of "Permanent Members"; and
- A number of other professional football clubs having the status of "
Qualified Clubs ", which would be chosen through a predetermined process.
The project being proposed was to be regulated by a Shareholder & Investment Agreement (the "Agreement") which would provide for the drafting of a number of contracts to bind the respective football clubs wishing to participate.
However, in view of the above-mentioned Agreement, and in accordance with the FIFA Statutes, it was agreed that
Strongly against this notion of ESL,
"[..] any clubs or player involved in such a competition would, as a consequence, not be allowed to participate in any competition organised by
Shortly afterwards, another statement was released whereby it was announced that "The clubs concerned will be banned from playing in any other competition at domestic, European or world level and their players could be denied the opportunity to represent their national teams."
The above two statements resulted in many teams who were once part of the Permanent Members, to pull out from going forward with the creation of the ESL, given the severity of the threats raised by
Analysis of the CJEU's Preliminary Ruling
Firstly, the CJEU had to decide on whether the
On
However, the CJEU in its preliminary ruling of
The CJEU went into great detail on whether or not
- Transparent;
- Objective;
- Non-Discriminatory; and
- Proportionate.
The above was brought out by the Judges in their ruling where they reflected that there existed no framework that ensured that the above four requirements were present, resulting in a clear breach of EU competition law under Article 101 TFEU. The
In terms of Article 102 TFEU, it was confirmed that
Concluding Remarks
What is so interesting about this case is that while the CJEU's preliminary ruling did confirm that
The preliminary ruling did however serve as a wakeup call for other sporting organisations to amend their rules, should they be, in any way, anti-competitive in nature.
Could this preliminary ruling be the end of the
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