The "Berlin Wall" of sport is torn down

The European Court of Justice is opening the door for a Super League in European soccer. And even if the proposal currently on the table is unlikely to be implemented: The ruling has much more far-reaching consequences for the sport, says one expert.

In the end, all that remains is humor, which is the only way to explain UEFA President Aleksander Čeferin's reaction on Thursday. He reacted with derision to what had happened just a few hours earlier. "It's just before Christmas," he said: the Super League agency "A22 found a present under the Christmas tree. They were delighted. When they open it, they will realize that there is not much inside".

The present Čeferin was referring to was placed under the Christmas tree by the European Court of Justice (ECJ). It had ruled what many had previously interpreted as a defeat for the association. Namely, that the door is still open for the Super League, a possible competitor to the Champions League. The judges declared that the European association had exploited its monopoly.

According to the ECJ, it was unlawful for any new soccer competition to require the approval of FIFA and UEFA. There is no set of rules for this that is transparent, objective, appropriate and non-discriminatory. This means that UEFA is subject to what applies to any market economy company: the association is subject to EU competition law.

The limits of the UEFA monopoly

One person who knows a thing or two about antitrust law and the Super League is lawyer Mark-E. Orth. The ECJ has, as he describes it, torn down the "Berlin Wall" of sport. "Sports associations have a monopoly that has grown for around a century," he explains in an interview with ntv.de. Orth represents clubs and athletes, and time and again they come up against this power imbalance that towers before them like a wall.

The ironic thing - the first punch line - is that sport is actually organized on a competitive basis. The winner is the one who runs the fastest or has the best technique. But that doesn't apply to the organization. In soccer, at least in Europe, there is only one Champions League. In addition, the athletes are subject to a number of restrictions. For example, they are not allowed to advertise during the Olympic Games - or have to fight to take part in competitions outside their federations.

What has almost gone under the radar is that the ECJ also confirmed a ruling from 2020 in this matter on the same day - which is perhaps even more significant. In May 2014, two Dutch speed skaters wanted to take part in a competition outside their federation in Abu Dhabi, partly because the rewards there were higher. The ISU prohibited this and threatened to ban them for life. However, the ISU was ultimately defeated in court. A ban on participation in events outside the federation is inadmissible if the federation does not simultaneously provide for a binding and non-discriminatory approval procedure for such non-association competitions.

The ECJ ruling on the Super League starts at the same point. "It really says: sports associations, your monopoly has limits," explains Orth. Specifically, the ECJ says that UEFA needs comprehensible criteria if it wants to make participation in competing events subject to approval. "It must prove that it has examined the proposal objectively." Transparent, objective, appropriate and non-discriminatory. The full impact of the ruling is yet to unfold, but athletes and clubs will have significantly more room for maneuver.

In the Super League clubs' revolt, which UEFA put down in April 2021, the association did not provide any objective criteria for participation in competing events, which is part of the ECJ ruling. And that could be expensive. After such a ruling, the next step would be to sue for damages, says Orth. At the time, the group had already clarified the financing, which amounted to almost three billion euros.

"An advantage for UEFA"

Regardless of the money, it would probably be just as bad for UEFA if the Super League actually came into being. Because then the association would lose considerable sums of money. But it doesn't look like that will happen at the moment, which also explains the derisive comments made by association boss Čeferin. So far, only Real Madrid and FC Barcelona have publicly declared their support, with the rest backing the existing system. Two clubs are not enough for a new international league.

The second point of this story is that it could be the ruling that prevents a new competition. "As nonsensical as it sounds, it is to UEFA's advantage," says Orth. Project Gandalf was the first attempt at a Super League back in 1999, which led to a major Champions League reform. The very idea of a competition in which the clubs could receive more money led to UEFA massively revising its competition structure.

UEFA does not yet have a problem. The current Super League, the English Premier League with all its superstars and giants, has conspired against an international league. Without them, the Super League makes no sense. But in a hypothetical scenario where the Super League's offer is less vague and there really is more money on offer than in the Champions League, everything could change. Then, in that distant future, when there is no more fan resistance and there is a majority among the top European clubs, a Super League could come into being after all. And then it was this ECJ ruling that opened the door for it. The question is whether the current UEFA boss will still react with derision.