Football’s Turning Point: Reflections on the European Super League Decision

Anshuman Jhala is a student at Gujarat National Law University.

1. Facts

On December 21^st, 2023, the European Court of Justice (“CJEU”) delivered a landmark judgment that could reshape professional football in Europe with the potential advent of the European Super League (“ESL”).¹ The case originates from April 2021, when 12 clubs signed an agreement to establish the ESL, a breakaway league separate from the traditional European football system. The Fédération Internationale de Football Association (“FIFA”) and the Union of European Football Associations (“UEFA”)  regulations require prior authorization from both governing bodies for the formation of such leagues, which was not obtained in this instance. Due to this lack of authorization, FIFA and UEFA threatened to revoke the membership of the 12 participating clubs. In response, the ESL filed a lawsuit against both governing bodies, alleging violations of Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”)   and seeking interim relief to prevent the two governing bodies from interfering with the league’s development.² The National Court referred the legal question regarding the applicability of these articles to the CJEU. 

2. Advocate Generals’ Conclusions

The then Advocate General of the EU, Athanasios Rantos, who was responsible for representing the EU before the CJEU, delivered his conclusion in favor of the sporting authorities, including FIFA, UEFA and the existing member states. He asserted that Article 165 of the TFEU recognizes the existence of a European sports model characterized by principles such as equality of opportunity, solidarity, and openness.³ While acknowledging the inherent conflict of interest within UEFA, given its role in managing continental football competitions such as the UEFA Champions League and the European Championship, the Advocate General emphasized that it is not unlawful for organizations like UEFA to regulate and organize competitions simultaneously. By this reasoning, UEFA was justified in prohibiting the clubs participating in the ESL from taking part in UEFA events.

3.  Judgment Analysis

In its decision, the CJEU held that sport falls under the purview of EU competition law insofar as it involves economic activities, as established in International Skating Union v Commission.⁴ Furthermore, national football associations like the Football Association(“FA”), along with FIFA and UEFA, have been classified as undertakings or association of undertakings under Article 101 TFEU. The application of Article 101(1) to restrict FIFA and UEFA’s power was determined using the object-based approach rather than the effects-based one.

The object-based approach involves treating certain business practices or agreements as inherently harmful to competition, regardless of their actual or potential effects on the market. These practices are considered “restrictions by object” under Article 101(1) TFEU.  Notably, in the landmark ruling of T-Mobile Netherlands, the CJEU held that an agreement can be classified as a restriction by object if it is capable of restricting competition, even if that restriction is not the sole objective.⁵

As per the CJEU, once the conditions of Article 101(1) TFEU are satisfied, it is necessary to examine the applicability of exceptions based on (i) legitimate justification and (ii) Article 101(3) TFEU concerning objective justification, within the context of Article 102 TFEU. This analysis requires evidence demonstrating compliance with these provisions and relevant case law. The determination of these issues rests with the National Courts of the various EU member states.

The CJEU acknowledged in the judgment that organizations responsible for governing and regulating sport, such as FIFA and UEFA, can adopt rules that not only govern international and domestic competitions organized by them but also apply to the clubs and players participating in these events. The CJEU reiterated that it is not the rules themselves that are anticompetitive, but rather the manner in which they are enforced, which may result in violations of Article 102 of the TFEU.  While generally accepting that the rules are not forbidden per se, the CJEU made them subject to strict requirements and even criticized FIFA’s past conduct.

The judgment does not revolve around Article 106 of the TFEU, as FIFA and UEFA’s monopoly is not a consequence of state funding and sponsorship.⁶ However, the CJEU noticed an interesting economic link to Article 106, specifically concerning FIFA and UEFA’s monopolistic control over participation in the football market. Even though Article 106 is not applicable since the dispute does not involve state action, the core principle remains the same: a monopolist player cannot deny access to others in a market where it operates. 

In its judgement, the CJEU limited itself to addressing the questions raised by the facts of the dispute, without commenting on the validity of the ESL. Additionally, it is to be noted that the judgment does not in any way end the monopoly exercised by organizations such as FIFA and UEFA. The CJEU does not entertain the possibility of dividing the organizations into separate governing and management bodies. The dominant position held by these two organizations is a matter of fact, not law, and thus remains untouched by the CJEU’s judgment.

4. Are UEFA’s actions Anticompetitive?

After the ESL was proposed, UEFA threatened to debar the 12 football clubs from participating in both continental and domestic competitions. UEFA, in this instance, is a dominant undertaking under Article 102 TFEU, as it is the sole regulator of football in Europe. However, in certain cases, objective justifications may exist for the conduct of dominant undertakings.⁷ Such justifications can be valid under Article 102 TFEU, although there is no comprehensive or exact list of what constitutes an objective justification. For instance, in B.P. v Commission, the CJEU clarified that a dominant company supplying oil could objectively justify treating its regular contractual customers more favorably than occasional customers, provided the circumstances warranted such preferential treatment.⁸ Similarly, in the landmark ruling of General Motors, the dominant undertaking charged a fee for inspections that were substantially higher than the market rate.⁹ The justification in this case was that the inspections could only be carried out by the dominant undertaking, so the excessive fee was reasonable. 

To better understand the present case, it is important to note that all UEFA competitions and domestic football in Europe at large is merit-based, with teams qualifying based on their performances throughout the year.¹⁰ In contrast, the ESL is intended to be a breakaway league that does not currently allow non-members to enter based on performance, effectively creating an elite group of select clubs. The potential development of the Super League and its closed-off nature—which primarily serves the 12 founding members—stands in direct opposition to the merit-based system European football has long upheld.  The closed structure of the ESL would lead to anticompetitive effects, as other football clubs would be excluded from participation. The concentration of potential revenue and market power in the hands of the founding clubs would also result in unfair competition, making it increasingly difficult for other clubs to succeed in the football landscape. UEFA is responsible for promoting and safeguarding the interests of the sport, and its actions do not amount to be an abuse of a dominant position and are objectively justified.

5. Way Forward

Even after the CJEU’s decision, clubs wishing to participate in the ESL will still require prior approval from FIFA, UEFA, and the national football associations they belong to. Following the judgement, FIFA and UEFA will be compelled to amend their rules that currently restrict competition. This ruling has set a crucial precedent for sporting organizations, emphasizing the need to ensure that their governing and regulatory powers do not stifle competition. If the ESL, in its current state, is implemented, it risks severely undermining and damaging national football leagues across Europe. By siphoning off the top clubs to play in a closed or semi-closed competition, domestic leagues would lose their most popular teams—often their financial and competitive cornerstones—while also harming grassroots football and all the jobs that depend on it.

After intense backlash from football fans worldwide—and with UEFA and FIFA threatening sanctions—almost all clubs backed out of the ESL proposal, with only a few remaining.  The future of the ESL remains uncertain, and only time will tell whether this proposed competition will alter the traditional football landscape in Europe or fade into history. 

1.  Case C-333/21, European Superleague Co. SL v. FIFA and UEFA, ECLI:EU:C:2023:1011 (ECJ 2023).
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2. Treaty on the Functioning of the European Union art. 101, Oct. 26, 2012, 2012 O.J. (C 326) 47.
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3. Ibid. ↩︎
4.  Case C-124/21 P, Int’l Skating Union v. Comm’n, EU:C:2023:123 (ECJ 2023).
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5.  Case C-8/08, T-Mobile Netherlands BV v. Raad van bestuur van de Nederlandse Mededingingsautoriteit, 2009 E.C.R. I-4529. ↩︎
6.  Treaty on the Functioning of the European Union art. 106, Oct. 26, 2012, 2012 O.J. (C 326) 47. ↩︎
7.  Objective Justification, LEXISNEXIS (last visited Mar. 3, 2025), https://www.lexisnexis.co.uk/legal/glossay/objective-justification. ↩︎
8.  Benzine en Petroleum Handelsmaatschappij BV v. Comm’n of the European Cmtys., Case 77/77, [1978] E.C.R. 1513, [1978] 3 C.M.L.R. 174 (ECJ). ↩︎
9.  Gen. Motors Cont’l NV v. Comm’n of the European Cmtys., Case 26/75, [1975] E.C.R. 1367, [1976] 1 C.M.L.R. 95 (ECJ). ↩︎
10.  How Is European Soccer Structured with Leagues and Cup Competitions?, BUNDESLIGA (last visited Mar. 3, 2025), https://www.bundesliga.com/en/faq/what-are-the-rules-and-regulations-of-soccer/how-is-european-soccer-structured-with-leagues-and-cup-competitions-10568. ↩︎