C-333/21, European Super League (ESL)

1. Facts:

• Breakaway Competition: In April 2021, 12 major football clubs announced the formation of a new competition, the European Super League (ESL), intending to operate outside the existing football structures dominated by UEFA and FIFA.

• Pushback: The announcement faced significant opposition from UEFA, FIFA, and football communities, who threatened sanctions against the clubs and players involved. The project quickly collapsed within 48 hours due to widespread backlash.

2. Outcome:

• AG Rantos 2022 Opinion: The Advocate General’s non-binding opinion supported the idea that restrictions imposed by UEFA and FIFA were proportionate and aimed at protecting the ‘specificity of sport’. This opinion was part of a preliminary reference to the CJEU.

• CJEU Ruling: The CJEU disagreed with AG Rantos' opinion. The Court held that as long as UEFA and FIFA are involved in economic activities, their actions must comply with EU competition law. The CJEU found that UEFA’s rules concerning third-party competitions were in violation of Articles 101 and 102 TFEU.

3. Impact and Analysis:

• Gatekeeping Role: The case underscored the role of Sports Governing Bodies (SGBs) as gatekeepers in organising and regulating competitions. The ruling emphasised the need for these bodies to ensure fair competition and equal opportunities.

• EU Competition Law: The decision clarified that rules on prior approval for alternative competitions must be based on objective, non-discriminatory criteria. Article 101 TFEU must be interpreted in a way that does not preclude legitimate regulatory actions, but Article 102 TFEU prohibits abuses of market power unless implemented within a fair and transparent framework.

• Guidance: The CJEU provided guidance on the implementation of sanctioning rules, stressing that they must be transparent, objective, precise, non-discriminatory, and proportionate, reflecting principles similar to those outlined in Fuller’s elements of moral law.