EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

based on promotion and relegation, preventing player overload, protecting the pyramid governance structure, ensuring equal rules globally and redistributing income (Weatherill [online], 2021). By preventing the creation of a closed parallel tournament, weaker clubs will still have the opportunity to compete with the strongest. Moreover, the preservation of the pyramid structure is necessary to ensure the proper functioning of national competitions and avoid scheduling issues. Other arguments against the Super League include that the agreement to create a breakaway league can itself be considered an anti-competitive agreement and grounds for collective dominance, as it harms existing products, in this case leagues, and raises costs for broadcasters. In fact, such a league replaces rather than competes with existing competitions (e.g., Van der Burg, 2020, p. 11). Nevertheless, the system of prior authorisation as such is not subject to any further control, regulation, or time limit and cannot be considered proportionate. Additionally, less drastic measures than the decision to ban the Super League altogether could have been implemented, for example a positive decision subject to further requirements, including solidarity contributions by the organisers and the participating clubs to UEFA and the national leagues. It cannot be confirmed that competition would be completely eliminated, since there are still other competitions, such as the UEFA Europa League. For a restrictive practice to be justified under Article 101(3) TFEU, the decision or agreement must lead to productive or dynamic efficiencies and allow consumers to participate in them, while being indispensable to the attainment of those improvements and not substantially eliminating competition (cf. Jaeger, 2020, p. 317). According to the Commission, “such a justification is likely to apply where a rule is not inherent in the organisation or proper conduct of sport so as to justify the application of Wouters but where the beneficial effects of a rule outweigh its restrictive effects” (Commission, 2007b, chapter 2.1.6.). Contrary to UEFA’s arguments under the Wouters test, which are based on the preservation of the pyramid structure of governance, UEFA can justify its decision under Article 101(3) TFEU by arguing that it has a benefit for consumers and is therefore indispensable to provide all clubs with equal promotion opportunities and to preserve the excitement of competition. A closed league jeopardises the competitive balance between clubs and the enjoyment of fans, as it becomes impossible for non-participating clubs to compete with renegade clubs (see also Zglinski, 2021, pp. 5 – 6). However, as UEFA and FIFA have a monopoly on the organisation and authorisation of competitions with no guarantees for the remaining clubs, it will be difficult, if not impossible, for them to argue that competition is not substantially eliminated. Consequently, when applying the Wouters test to the Super League case, UEFA and FIFA will be able to demonstrate that their decision to refuse the competition

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