Must Article 102 TFEU be interpreted as meaning that that article prohibits the abuse of a dominant position consisting of the stipulation by FIFA and UEFA in their statutes (in particular, Articles 22 and 71 to 73 of the FIFA Statutes, Articles 49 and 51 of the UEFA Statutes, and any similar article contained in the statutes of the member associations and national leagues) that the prior approval of those entities, which have conferred on themselves the exclusive power to organise or give permission for international club competitions in Europe, is required in order for a third-party entity to set up a new pan-European club competition like the Super League, in particular where no regulated procedure, based on objective, transparent and non-discriminatory criteria, exists, and taking into account the possible conflict of interests affecting FIFA and UEFA?

Article 102 TFEU must be interpreted as prohibiting the adoption and implementation of rules by FIFA and UEFA requiring prior approval for new competitions and controlling participation where there is no framework ensuring transparent, objective, non-discriminatory, and proportionate criteria.

Must Article 101 TFEU be interpreted as meaning that that article prohibits FIFA and UEFA from requiring in their statutes (in particular, Articles 22 and 71 to 73 of the FIFA Statutes, Articles 49 and 51 of the UEFA Statutes, and any similar article contained in the statutes of the member associations and national leagues) the prior approval of those entities, which have conferred on themselves the exclusive power to organise or give permission for international competitions in Europe, in order for a third-party entity to create a new pan-European club competition like the Super League, in particular where no regulated procedure, based on objective, transparent and non-discriminatory criteria, exists, and taking into account the possible conflict of interests affecting FIFA and UEFA?

Article 101(1) TFEU must be interpreted as prohibiting the adoption and implementation of such rules by FIFA and UEFA where there is no framework ensuring transparent, objective, non-discriminatory, and proportionate criteria.

Must Articles 101 and/or 102 [TFEU] be interpreted as meaning that those articles prohibit conduct by FIFA, UEFA, their member associations and/or national leagues which consists of the threat to adopt sanctions against clubs participating in the Super League and/or their players, owing to the deterrent effect that those sanctions may create? If sanctions are adopted involving exclusion from competitions or a ban on participating in national team matches, would those sanctions, if they were not based on objective, transparent and non-discriminatory criteria, constitute an infringement of Articles 101 and/or 102 [TFEU]?

The threat to adopt sanctions against clubs and players participating in unauthorized competitions constitutes an anticompetitive decision by an association of undertakings or abuse of a dominant position if there is no framework ensuring objective, transparent, non-discriminatory, and proportionate criteria.

Must Articles 101 and/or 102 TFEU be interpreted as meaning that the provisions of Articles 67 and 68 of the FIFA Statutes are incompatible with those articles in so far as they identify UEFA and its national member associations as 'original owners of all of the rights emanating from competitions ... coming under their respective jurisdiction', thereby depriving participating clubs and any organiser of an alternative competition of the original ownership of those rights and arrogating to themselves sole responsibility for the marketing of those rights?

Articles 101 and 102 TFEU preclude rules conferring exclusive marketing rights on FIFA and UEFA unless it is demonstrated that all conditions for an exemption under Article 101(3) TFEU or justification under Article 102 TFEU are satisfied.

If FIFA and UEFA, as entities which have conferred on themselves the exclusive power to organise and give permission for international club football competitions in Europe, were to prohibit or prevent the development of the Super League on the basis of the abovementioned provisions of their statutes, would Article 101 TFEU have to be interpreted as meaning that those restrictions on competition qualify for the exception laid down therein, regard being had to the fact that production is substantially limited, the appearance on the market of products other than those offered by FIFA/UEFA is impeded, and innovation is restricted, since other formats and types are precluded, thereby eliminating potential competition on the market and limiting consumer choice? Would that restriction be covered by an objective justification which would permit the view that there is no abuse of a dominant position for the purposes of Article 102 TFEU?

Rules requiring prior approval and controlling participation may benefit from an exemption to Article 101(1) TFEU or be justified under Article 102 TFEU only if it is demonstrated that all conditions for such exemption or justification are satisfied.

Must Articles 45, 49, 56 and/or 63 TFEU be interpreted as meaning that, by requiring the prior approval of FIFA and UEFA for the establishment, by an economic operator of a Member State, of a pan-European club competition like the Super League, a provision of the kind contained in the [FIFA and UEFA Statutes] (in particular, Articles 22 and 71 to 73 of the FIFA Statutes, Articles 49 and 51 of the UEFA Statutes, and any other similar article contained in the statutes of member associations [and] national leagues) constitutes a restriction contrary to one or more of the fundamental freedoms recognised in those articles?

Article 56 TFEU must be interpreted as precluding rules requiring prior approval for new competitions and controlling participation where there is no framework ensuring transparent, objective, non-discriminatory, and proportionate criteria.

Superleague (ECLI:EU:C:2023:1011)

Rules requiring prior approval for new competitions without objective criteria constitute abuse of dominant position.

European Court of Justice (Grand Chamber) · 21 december 2023 · Table of contents · Preliminary ruling

(Request for a preliminary ruling – Competition – Internal market – Rules introduced by international sports associations – Professional football – Private law entities vested with regulatory, control and decision-making powers, and the power to impose sanctions – Rules on prior approval of competitions, on the participation of football clubs and players in those competitions, and also on the exploitation of commercial and media rights related to those competitions – Parallel pursuit of economic activities – Organisation and marketing of competitions – Exploitation of related commercial and media rights – Article 101(1) TFEU – Decision by an association of undertakings adversely affecting competition – Concepts of anticompetitive ‘object’ and ‘effect’ – Exemption under Article 101(3) TFEU – Conditions – Article 102 TFEU – Abuse of dominant position – Justification – Conditions – Article 56 TFEU – Restrictions on the freedom to provide services – Justification – Conditions – Burden of proof)

Rechtsvraag

Whether the rules laid down by FIFA and UEFA, which make the organization of new interclub football competitions subject to their prior approval and control the participation of clubs and players in such competitions, constitute an abuse of dominant position under Article 102 TFEU and a decision by an association of undertakings having as its object the prevention of competition under Article 101(1) TFEU, and if they can be justified or exempted under Article 101(3) TFEU and Article 102 TFEU.

Regel

Art. 102, TFEU (Prohibits abuse of dominant position within the internal market if it may affect trade between Member States)
Art. 101(1), TFEU (Prohibits agreements and decisions by associations of undertakings that have as their object or effect the prevention, restriction, or distortion of competition within the internal market)
Art. 101(3), TFEU (Provides exemptions to the application of Article 101(1) TFEU if certain conditions are met)
Art. 56, TFEU (Ensures freedom to provide services within the EU and prohibits restrictions on that freedom)

Conclusie

The adoption and implementation of rules by FIFA and UEFA making the organization of new interclub football competitions subject to their prior approval and controlling participation of clubs and players, without transparent, objective, non-discriminatory, and proportionate criteria, constitute an abuse of dominant position under Article 102 TFEU and a decision by an association of undertakings having as its object the prevention of competition under Article 101(1) TFEU. Such rules may only be justified or exempted if all conditions under Article 101(3) TFEU and the relevant case law on Article 102 TFEU are convincingly demonstrated to be met. Additionally, these rules also constitute an obstacle to the freedom to provide services under Article 56 TFEU.

Tijdlijn

21-01-2021 FIFA and the six continental confederations, including UEFA, issued a statement refusing to recognize the Super League and affirming that any club or player participating in it would be expelled from competitions organized by FIFA and UEFA.
18-04-2021 UEFA, along with English, Spanish, and Italian football associations and certain professional leagues, issued a press release stating that clubs involved in the Super League would 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.
19-04-2021 The Juzgado de lo Mercantil de Madrid (Commercial Court, Madrid) admitted the action brought by ESLC against FIFA and UEFA.
20-04-2021 The court ordered a series of protective measures to prevent FIFA and UEFA from taking any disciplinary actions or sanctions against clubs and players involved in the Super League during the legal proceedings.
11-05-2021 The Juzgado de lo Mercantil de Madrid referred several preliminary questions to the Court of Justice of the European Union concerning the compatibility of FIFA and UEFA rules with EU competition law and fundamental freedoms.
27-05-2021 The Court of Justice of the European Union received the referral from the Juzgado de lo Mercantil de Madrid.
11-07-2022 The Court of Justice of the European Union held a hearing on the case.
12-07-2022 The Court of Justice of the European Union continued the hearing on the case.
15-12-2022 The Advocate General delivered his opinion at the sitting.
21-12-2023 The Court of Justice of the European Union delivered its judgment, ruling on the interpretation of Articles 101 and 102 TFEU, as well as Articles 45, 49, 56, and 63 TFEU, in relation to FIFA and UEFA rules.