Protecting the European sports model: Win It On The Pitch

The European Commission has registered a European Citizens’ Initiative (ECI) entitled “Win It On The Pitch”. The initiative calls on the Commission to protect a European model of sport “based on values, solidarity, sustainability and open competition”. Following a year in which “fan power” has shown itself to be more than capable of bringing about change in sport, it’s notable that the ECI was notified by an executive director of Football Supporters Europe (FSE): a football fan network and representative body of supporters in the UEFA region. 

Background 

It’s well documented that in April last year, European football was gripped in a civil war. The announcement by 12 European football clubs to establish a breakaway European Super League sparked widespread condemnation. French President Emmanuel Macron promised that France would support “all the steps” taken by football’s governing bodies to defend the existing competitions whilst UK Prime Minister Boris Johnson threatened to drop a “legislative bomb” on any English clubs that joined the league. Fans – fearing that the Super League would prove detrimental to the spirit of the game by side-lining national competitions – gathered to protest outside stadiums across Europe. UEFA and FIFA, the respective European and world football governing bodies, indicated that the clubs and players participating in the Super League would be subject to a range of sanctions, including bans from the Champions League and the World Cup.

With tensions rising, it looked like the European Commission would need to play referee. The European Super League argued that sports governing bodies were abusing their dominance as regulators by preventing rival leagues / competitions from entering the market. On the other hand, FIFA and UEFA pointed out that the creation of a nearly-closed system (in which the majority of spots in the league would be permanently reserved for founding teams) went against European sport’s pyramidal structure which promised an open system of promotion and relegation.

Following the negative reaction from fans, pundits and politicians, the majority of clubs withdrew from the project within a few days and a dominance complaint has not been filed to date with the European Commission against FIFA and UEFA. However, this ECI may compel the Commission to articulate an opinion. 

The ECI: “Win it on the Pitch”

The ECI notes that “European sport is on the brink of catastrophe” following “decades of mismanagement” culminating in the “super league fiasco.” The FSE calls on the Commission to propose, and subsequently the Council of the EU (Council) to adopt, a Recommendation that provides a framework and guidelines for action from Member States “to protect the model of football in Europe, to recognise the social value of sport in European society and the specific nature of sport in the EU competition rules and to strengthen the EU vision and long-term policy on the future and governance of European sport.” In particular, the FSE argues that the Recommendation should:

• Include clear guidelines on the application of EU competition rules to sport, deterring further breakaway attempts and efforts to replace the European model of sports with a cartel model; and 

• Aim to ensure that Member States codify “the central role and fundamental parameters for financial solidarity frameworks, redistributions mechanisms, and financial sustainability regulations in football” thereby countering “the asset stripping of clubs and communities.”

The clock is now running for the FSE: if the ECI receives one million signatures (known as “statements of support”) within one year from at least seven different Member States, the Commission will have to react. Commission representatives would need to meet with the organisers of the ECI and arrange for a public hearing at the European Parliament. The Commission would not, however, be bound to accept the content of the ECI: it must merely publish “its legal and political conclusions” and “the action it intends to take, if any” with reasons. Therefore, the Commission has full discretion in deciding whether to take any follow-up actions and the form of such action. In practice, the Commission is unlikely to propose the adoption of legally binding acts in light of the EU’s narrow legislative competence in the field of sports.  

The Council may adopt a Recommendation where one is proposed by the Commission. Recommendations are not legally binding but do carry significant political weight and often provide a framework that Governments can implement on a national level. In this instance, a Council Recommendation could provide the basis (and indeed incentive) for national laws empowering sports governing bodies to take action against clubs intending to join breakaway leagues. 

The Commission has, to date, appeared reluctant to wade in on this dispute, in part given the fundamental frictions between the issues at stake. On the one hand, an increase in the number competing leagues would foster more competition, which the EU rules aim to protect and promote. On the other hand, this must also be reconciled with the closed nature of the new league and a more fundamental question of whether more competition and more leagues are indeed favourable in the case of sports. Whichever the chosen route, whatever comes next in this saga is likely to have an instrumental effect on European sports for decades to come. 

Comment

While the majority of clubs publicly withdrew from the proposed Super League last year, Spanish clubs Real Madrid CF and FC Barcelona, and Italian giants Juventus FC continue to publicly back the initiative and have already suggested a possible change to the initial plan, with a more “open” two-tier league structure. The path of this ECI could provide an important signal to clubs and sports governing bodies on the potential for these plans to progress. 

Meanwhile, the Council has stressed the importance of the European Sports Model in its recent resolution and the Court of Justice of the EU is set to provide its interpretation of EU law later this year in response to the question as to whether UEFA is abusing its dominant position by opposing the Super League project. It remains to be seen what new twists these developments will bring to the Super League discussion, and the potential implications for the future relationship between competition law, EU policy and sports as a whole. 

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