A court on Gran Vía in Madrid has changed the rules of the game in the European football war. Following in the footsteps of the European courts, the Spanish Justice has left in writing that UEFA and FIFA act as a monopoly when it comes to doing and undoing in a sport that moves billions of euros a year. It has also prohibited both organizations from using their power to prevent the Super League promoted by a dozen of the largest clubs on the continent. And he has made it clear that football is a sport, but above all and for legal purposes it is a business. “Any regulation as an organizing body for the football business is omitted,” criticizes the ruling.
The announcement of the creation of a “Super League” came in April 2021. It is a project led by Florentino Pérez and Real Madrid and endorsed by a dozen of the most powerful teams in Europe to directly rival the Champions League, the great annual football competition. The objective, explained the president of the ACS group himself, was to revitalize the competition and generate more income. “We understood that if instead of doing the Champions League during the week, we did a Super League of the big clubs, we could alleviate the losses we have had,” he claimed.
Business against business. The announcement quickly ended up in court when the promoters of the Super League denounced that UEFA and FIFA were using their power and their monopoly on football to prevent the competition. With billions at stake, FIFA issued a statement saying that any team or player that participated in the Super League could not participate in the Champions League. “He would not be allowed to participate in any competition organized by FIFA or its corresponding confederation.”
The legal battle developed on two fronts and on both fronts, for the moment, the Super League has emerged victorious, whose development is at an undetermined point. On the one hand, in the Court of Justice of the European Union (CJEU). On the other hand, in the commercial court 17 of Madrid. The result is that, from now on, the two bodies that control European football cannot coerce clubs not to play in that competition.
The two resolutions leave in writing what can be guessed with a simple glance at the machinery of European football: it is a monopoly and the rules of the game are so vague and imprecise that they automatically close the door to any type of competition. And through sporting criteria such as “merit and solidarity” it also closes the door to any type of effective control, even by the courts.
The CJEU was the first to rule in December last year. “The rules of FIFA and UEFA are illegal. “They are not subject to any criteria that guarantee their transparent, objective, non-discriminatory and proportionate nature.” the court said. He also pointed to another of the large slices of the pie: the commercial exploitation of the rights derived from these competitions. “They can restrict competition, taking into account the importance that the latter have for the media, consumers and television viewers.”
Telefónica pays about 960 million euros a year to broadcast the Champions League and the Europa League. A year ago, UEFA competitions director Giorgio Marchetti estimated that the competition’s television revenue would range between 4.6 and 4.8 billion euros.
“What does sporting merit consist of?”
In Madrid, Judge Sofía Gil made it clear from the first pages of her ruling that she had to adhere, at least in basic terms, to the ruling of the CJEU. She also began by verifying that UEFA and FIFA hold a “dominant position” in the football market: only they organize events without competing with each other. “They hold a monopolistic position in the relevant market.”
The resolution analyzes from a legal perspective a reality visible to the entire world: FIFA and UEFA organize, control and authorize any movement in football on a large scale. But their internal rules do not prevent them from abusing that position.
“The absence of procedure is serious. But of greater seriousness is the absence of any material and objective criteria that regulates or establishes the necessary conditions that must be assessed by the authorizing body,” says the judge. There is no way to assess more or less objectively what criteria they act with.
This prevents “prosecuting” their actions because the billion-dollar business of European football is regulated with criteria such as “merit” and “solidarity”, which, as the judge explains, are “indeterminate and subjective.” And she asks herself several questions: “What does sporting merit consist of? And solidarity? how are they valued? Does the team that obtains a better position in a classification have greater sporting merit? regardless of their economic condition? Is the competition that distributes a greater percentage of its income more supportive?”
These sporting criteria, he explains, cannot be used to regulate a business of that caliber. “UEFA’s regulation is based exclusively on its consideration as the governing body of football as a sport; Any regulation as an organizing body for the football business is omitted. Which shows and aggravates the insufficiency – absence – of regulation,” explains the judge.
One of the most lucrative and voluminous sports businesses in the world, which in the case of the Champions League is the most watched spectacle in the world, is practically unregulated. And that leads to the second part of the problem: there is no way to control it. “UEFA decisions are not subject to objective and independent judicial review.” “From an economic and legal point of view, UEFA’s decisions would be protected, they are not appealable.”
The judge is very explicit when stating that behind sports there is a business that cannot have this limited legal framework. “It is evident that the organization of a competition like the Champions League does not have a mere sporting nature.” Neither UEFA nor FIFA can “hide behind the sporting nature of their activity to be able to act arbitrarily from their position as entrepreneurs in the market.”
The court’s decision is still appealable. First before the Provincial Court of Madrid and finally before the Supreme Court. But the precedent of the Court of Justice of the European Union does not leave much room for interpretation in the opposite direction. Neither FIFA nor UEFA, therefore, will be able to abuse their monopoly to prevent the Super League or other competitions that may be organized. All while a sentence confirms with the law in hand that football, before being a sport, is a business. Meanwhile, little by little, most of the big European clubs are turning their backs on the project.
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