EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

the organisation of competitions or leagues without their consent or approval (Articles 71 and 73 FIFA Statutes; Articles 49 and 51 UEFA Statutes). The Super League would consist of fifteen permanent members and five additional teams that would have to qualify annually in their national leagues. Clubs would be bound by a spending cap, i.e., they would be allowed to spend a maximum of 55% of their revenues on sporting expenses and would invest more than ten billion euros in solidarity payments (European Super League Company [online], 2021). UEFA and FIFA openly opposed such a Super League and threatened to sanction the clubs by excluding them from all other competitions and the players by denying them representation of their national teams (UEFA [online], 2021). The football clubs involved allege abuse of a dominant position by UEFA and FIFA under Article 102 TFEU. Furthermore, the imposition of allegedly unjustified and disproportionate restrictions would violate Article 101 TFEU. The monopoly in the organisation and authorisation of competitions, the exclusivity in the management of resulting economic revenues and the announced sanctions would impede free competition in the market for sports competitions. Instead, UEFA is accused of furthering its own commercial interest in maintaining monopoly control over the Champions League by suppressing the emergence of a new form of competition (C-333/21 European Superleague Company , request for a preliminary ruling). The alleged conflict of interest is comparable to that of ISU, because UEFA and FIFA also have a double function, namely a regulatory and a commercial one. On the one hand, they set rules, determine the match calendar and protect the welfare of players and fans. On the other hand, their regulatory choices have direct commercial consequences, such as the imposition of sanctions, in addition to generating income (Weatherill [online], 2021).The approval by the governing bodies is not subject to any limits or objective criteria to avoid discriminatory or anti-competitive effects. Rather, they have a wide margin of discretion. It is therefore necessary that the activities and rules by sport governing bodies do not go beyond what is necessary for the proper organisation of sport (Weatherill [online], 2021). In the following chapters, indications of a possible methodology and outcome of the CJEU decision in the appeal procedure are given: First, the sport governing body must be classified as an undertaking or an association of undertakings. Next, the rule or decision in question must restrict competition (Article 101(1) TFEU) and/or abuse a dominant position (Article 102 TFEU). Moreover, trade between the Member States must be affected by its behaviour. This condition is easily fulfilled in the present case and does not require further examination, as the rules adopted by sport governing bodies apply across borders in more than one State and the competitions are held throughout the EU. Finally, it must be determined whether the rule or decision is justified and proportionate.

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