Opinion of Advocate General Rantos delivered on 15 December 2022.

JurisdictionEuropean Union
ECLIECLI:EU:C:2022:993
Date15 December 2022
Celex Number62021CC0333
CourtCourt of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 15 December 2022 (1)

Case C333/21

European Superleague Company SL

v

Unión de Federaciones Europeas de Fútbol (UEFA),

Fédération internationale de football association (FIFA),

interveners:

A22 Sports Management SL,

Liga Nacional de Fútbol Profesional,

Real Federación Española de Fútbol

(Request for a preliminary ruling from the Juzgado de lo Mercantil n.º 17 de Madrid (Commercial Court, Madrid, Spain))

(Reference for a preliminary ruling – Competition – Articles 101 and 102 TFEU – Abuse of a dominant position – Articles 45, 49, 56 and 63 TFEU – European Super League (ESL) – First European competition outside UEFA – Refusal of UEFA and FIFA to recognise the ESL – Prior approval allowing a third entity to organise a new competition – Threat of sanctions against clubs and players participating in the new competition – Rights derived from competitions and their marketing)






I. Introduction

1. ‘The importance of the present case is obvious. The answer to the question of the compatibility with Community law of the transfer system and the rules on foreign players will have decisive influence on the future of professional football in the Community.’ Those were the opening words of Advocate General Lenz in the preliminary observations to his Opinion in the case which gave rise to the judgment in Bosman, which sent shockwaves through the football world. (2)

2. Almost three decades later, a request for a preliminary ruling, this time from Spain, raises questions connected with the very existence of the organisational structure of the modern game. The present case was triggered by the plan to create the European Super League (‘the ESL’), a new European football competition, which has been the subject of intense media coverage attracting impassioned reactions and comments from ‘mere’ supporters and at the highest national and European political levels alike. (3) In the present case, the future of European football will turn on the answers given by the Court to problems related primarily to competition law and, secondarily, to fundamental freedoms.

3. The request has been made by the Juzgado de lo Mercantil n.º 17 de Madrid (Commercial Court, Madrid, Spain) in proceedings between, on the one hand, the Fédération internationale de football association (International Association Football Federation; ‘FIFA’) and the Union of European Football Associations (‘UEFA’) and, on the other, European Superleague Company SL (‘ESLC’), a company seeking to organise and market a new European football competition that would be an alternative or competitor to those organised and marketed to date by those two federations. Those proceedings concern public statements made by FIFA and UEFA making clear their refusal to authorise that new competition and warning that any player or club participating in it would be expelled from the competitions organised by FIFA and UEFA.

II. Legal context

A. Rules and regulations adopted by FIFA

4. As set out in Article 22 of the FIFA Statutes:

‘1. Member associations that belong to the same continent have formed the following confederations, which are recognised by FIFA:

(c) Union des associations européennes de football – UEFA

2. FIFA may, in exceptional circumstances, authorise a confederation to grant membership to an association that belongs geographically to another continent and is not affiliated to the confederation on that continent. The opinion of the confederation concerned geographically shall be obtained.

3. Each confederation shall have the following rights and obligations:

(a) to comply with and enforce compliance with the Statutes, regulations and decisions of FIFA;

(b) to work closely with FIFA in every domain so as to achieve the objectives stipulated in [Article] 2 and to organise international competitions;

(c) to organise its own interclub competitions, in compliance with the international match calendar;

(d) to organise all of its own international competitions in compliance with the international match calendar;

(e) to ensure that international leagues or any other such groups of clubs or leagues shall not be formed without its consent and the approval of FIFA;

(f) at the request of FIFA, to grant associations applying for membership the status of a provisional member. This status shall grant associations the right to take part in the confederation’s competitions and conferences.

(j) exceptionally to allow, with FIFA’s consent, an association from another confederation (or clubs belonging to that association) to participate in a competition that it is organising;

(k) with the mutual cooperation of FIFA, to take any action considered necessary to develop the game of football on the continent concerned, such as arranging development programmes, courses, conferences, etc.;

…’

5. Article 67(1) of the FIFA Statutes states:

‘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. …’

6. Article 68(1) of the FIFA Statutes provides:

‘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.’

7. Article 71 of the FIFA Statutes states:

‘1. The Council shall be responsible for issuing regulations for organising international matches and competitions between representative teams and between leagues, club and/or scratch teams. No such match or competition shall take place without the prior permission of FIFA, the confederations and/or the member associations in accordance with the Regulations Governing International Matches.

2. The Council may issue further provisions for such matches and competitions.

3. The Council shall determine any criteria for authorising line-ups that are not covered by the Regulations Governing International Matches.

4. Notwithstanding the authorisation competences as set forth in the Regulations Governing International Matches, FIFA may take the final decision on the authorisation of any international match or competition.’

8. Article 72 of the FIFA Statutes reads as follows:

‘1. 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.

2. Member associations and their clubs may not play on the territory of another member association without the latter’s approval.’

9. Article 73 of the FIFA Statutes prohibits associations, leagues or clubs that are affiliated to a member association from joining another member association or taking part in competitions on that member association’s territory, save under exceptional circumstances with the express approval of FIFA and of the respective confederation(s).

B. Rules and regulations adopted by UEFA

10. Like the FIFA Statutes, Articles 49 to 51 of the UEFA Statutes grant UEFA a monopoly as regards the organisation of international competitions in Europe and the ability to prohibit such competitions from being organised without its prior approval. More specifically, those articles read as follows:

‘Article 49 – Competitions

1. UEFA shall have the sole jurisdiction to organise or abolish international competitions in Europe in which Member Associations and/or their clubs participate. FIFA competitions shall not be affected by this provision.

3. International matches, competitions or tournaments which are not organised by UEFA but are played on UEFA’s territory shall require the prior approval of FIFA and/or UEFA and/or the relevant Member Associations in accordance with the FIFA Regulations Governing International Matches and any additional implementing rules adopted by the UEFA Executive Committee.

Article 50 – Competition Regulations

1. The Executive Committee shall draw up regulations governing the conditions of participation in and the staging of UEFA competitions. These regulations shall set out a clear and transparent bidding procedure for all UEFA competitions, including competition finals.

2. It shall be a condition of entry into competition that each Member Association and/or club affiliated to a Member Association agrees to comply with the Statutes, and regulations and decisions of competent Organs made under them.

3. The admission to a UEFA competition of a Member Association or club directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures.

Article 51 – Prohibited Relations

1. No combinations or alliances between UEFA Member Associations or between leagues or clubs affiliated, directly or indirectly, to different UEFA Member Associations may be formed without the permission of UEFA.

2. A Member Association, or its affiliated leagues and clubs, may neither play nor organise matches outside its own territory without the permission of the relevant Member Associations.’

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

11. FIFA, a Swiss body governed by private law, is football’s world governing body; its objectives are, primarily, to promote football and to organise its own international competitions. Composed of national federations, it also recognises the existence of regional football confederations, including UEFA, which are not however members of FIFA. Professional football clubs are, for...

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5 practice notes
  • Opinion of Advocate General Ćapeta delivered on 14 September 2023.
    • European Union
    • Court of Justice (European Union)
    • 14 September 2023
    ...(C‑124/21 P, EU:C:2022:988, points 36 à 43), de l’avocat général Rantos dans l’affaire European Superleague Company (C‑333/21, EU:C:2022:993, points 39 à 42), et de l’avocat général Szpunar dans l’affaire Royal Antwerp Football Club (C‑680/21, EU:C:2023:188, points 34 à 86 La partie pertine......
  • Opinion of Advocate General Szpunar delivered on 9 March 2023.
    • European Union
    • Court of Justice (European Union)
    • 9 March 2023
    ...dieser Bestimmung vgl. Schlussanträge des Generalanwalts Rantos in der Rechtssache European Superleague Company (C‑333/21, EU:C:2022:993, Nr. 27 Von den sieben Zielen dieses Absatzes beziehen sich sechs auf die Bildung und nur eins auf den Sport. 28 Soweit auf den Europarat Bezug genommen w......
  • Bulgarian Energy Holding EAD and Others v European Commission.
    • European Union
    • General Court (European Union)
    • 25 October 2023
    ...riguardo occorre rilevare, come fa l’avvocato generale Rantos nelle sue conclusioni nella causa European Superleague Company (C‑333/21, EU:C:2022:993, paragrafo 138), che, secondo la teoria delle «infrastrutture essenziali», un’impresa dominante che possieda o controlli un’«infrastruttura e......
  • Conclusions de l'avocat général M. A. Rantos, présentées le 2 mars 2023.
    • European Union
    • Court of Justice (European Union)
    • 2 March 2023
    ...Pour l’application dans le domaine réglementaire, voir mes conclusions dans l’affaire European Superleague Company (C‑333/21, EU:C:2022:993, points 85 à 99 Voir, en ce sens, arrêts du 11 septembre 2014, MasterCard e.a./Commission (C‑382/12 P, ci-après l’« arrêt MasterCard », EU:C:2014:2201,......
  • Request a trial to view additional results
4 cases
  • Opinion of Advocate General Ćapeta delivered on 14 September 2023.
    • European Union
    • Court of Justice (European Union)
    • 14 September 2023
    ...(C‑124/21 P, EU:C:2022:988, points 36 à 43), de l’avocat général Rantos dans l’affaire European Superleague Company (C‑333/21, EU:C:2022:993, points 39 à 42), et de l’avocat général Szpunar dans l’affaire Royal Antwerp Football Club (C‑680/21, EU:C:2023:188, points 34 à 86 La partie pertine......
  • Opinion of Advocate General Szpunar delivered on 9 March 2023.
    • European Union
    • Court of Justice (European Union)
    • 9 March 2023
    ...dieser Bestimmung vgl. Schlussanträge des Generalanwalts Rantos in der Rechtssache European Superleague Company (C‑333/21, EU:C:2022:993, Nr. 27 Von den sieben Zielen dieses Absatzes beziehen sich sechs auf die Bildung und nur eins auf den Sport. 28 Soweit auf den Europarat Bezug genommen w......
  • Bulgarian Energy Holding EAD and Others v European Commission.
    • European Union
    • General Court (European Union)
    • 25 October 2023
    ...riguardo occorre rilevare, come fa l’avvocato generale Rantos nelle sue conclusioni nella causa European Superleague Company (C‑333/21, EU:C:2022:993, paragrafo 138), che, secondo la teoria delle «infrastrutture essenziali», un’impresa dominante che possieda o controlli un’«infrastruttura e......
  • Conclusions de l'avocat général M. A. Rantos, présentées le 2 mars 2023.
    • European Union
    • Court of Justice (European Union)
    • 2 March 2023
    ...Pour l’application dans le domaine réglementaire, voir mes conclusions dans l’affaire European Superleague Company (C‑333/21, EU:C:2022:993, points 85 à 99 Voir, en ce sens, arrêts du 11 septembre 2014, MasterCard e.a./Commission (C‑382/12 P, ci-après l’« arrêt MasterCard », EU:C:2014:2201,......
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    • 31 January 2023
    ...Liga Nacional de Fútbol Profesional, Real Federación Espa'ola de Fútbol, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62021CC0333#Footref65, 6. Motosykletistiki Omospondia Ellados NPID v. Elliniko Dimosio, Case C-49/07, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?......

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