Football’s multi-club ownership model: are competition authorities curious?

Multi-club ownership in football may be a growing trend, but it is not new. In the 2022/23 season, as many as nine Premier League clubs and six EFL Championship clubs formed part of a wider multi-club model, a structure first explored exclusively in Europe by ENIC, the now majority shareholder of Tottenham Hotspur F.C.

This article focuses on how, in addition to governing body rules, the growing number of the model’s exponents might also need to mind an often overlooked corollary of the model – merger control.

Why are multiple clubs better than one?

The rationale underpinning investors’ multi-club ownership aspirations ranges from player recruitment and development efficiencies to knowledge sharing, resource synergies and brand penetration. In addition, there is an argument that the FA’s Governing Body Endorsement (GBE) requirements, which, in the wake of Brexit, affect EU to UK player transfers, has been the impetus behind the model’s invigorated popularity in the UK. Accruing interests in clubs that compete in the continent’s top leagues – i.e., those that hold higher ‘bands’ and therefore score more points in the GBE system – is seen as a means for Premier League and EFL clubs to access a more eligible foreign pool of players. Having interests in multiple clubs isn’t a phenomenon unique to the UK, however – it pervades the European game, with UEFA reporting that clubs with ‘cross-ownership’ relations account for more than one-third of the top division in each of Belgium, France and Italy, in addition to England.

Integrity of competition – reconciling the model with football’s rulebook

At the core of sport is competition, and so, if the same person (natural or legal) was to have control or influence over two rivals, there would be a risk to the integrity of competition whenever those rivals ‘compete’. To mitigate that risk, football’s governing bodies have introduced rules to preserve the independence of, and integrity of competition between, its clubs. 

At a domestic level, approximately two-thirds of Europe’s national football associations have rules “directly limiting or restricting” multi-club ownership. The game’s floodlights, however, shine brightest over European nights and competitions, where cross-ownership relations between clubs are more numerous. 

Article 5 of the Regulations of the UEFA Champions League (Article 5), on the “integrity of the UEFA club competitions”, stems from the governing body’s concern in the late 1990s regarding ENIC’s control over Greece’s AEK Athens F.C., Italy’s L.R. Vicenza and Czech Republic’s SK Slavia Prague, all of whom were in the quarter-final draw of the 1997-98 Cup Winners’ Cup.

Article 5 regulates common ownership by prohibiting the same individual or legal entity from having “control or influence” over more than one club playing in the same UEFA club competition. ‘Control or influence’ notably includes the ability to “exercise by any means a decisive influence in the decision-making of the club”. In the early 2000s, when the original form of Article 5 was challenged by ENIC for an alleged restriction of EU antitrust law, the European Commission found in its rejection of the complaint that the rule aimed to “ensure the uncertainty of the outcome and to guarantee that the consumer has the perception that the games played represent honest sporting competition”.

While UEFA considers the model to present “more and more of an issue” that poses a “material threat”, UEFA President Aleksander Ceferin recently voiced the need to “rethink” current rules, potentially in a manner of their loosening, rather than bolstering.

It should be noted, however, that Article 5 still didn’t prevent FC Red Bull Salzburg from playing against RB Leipzig in the Europa League in 2018. Following an investigation the previous year when both clubs qualified for the Champions League, and “several important governance and structural changes made by the clubs (regarding corporate matters, financing, personnel, sponsorship arrangements, etc.)”, UEFA’s Club Financial Control Body accepted both clubs’ admission into the same competition on the basis that it “deemed that no individual or legal entity [including Red Bull GmbH] had anymore a decisive influence over more than one [of the clubs]”, and as a consequence, Article 5 would not be breached. 

Even if owners can circumvent football’s existing rulebook, or Article 5 is revised in such a way to allow them to sidestep this issue, they should remain mindful of the application of competition law enforcement to their multi-club investment ambitions.

Information exchange

‘Connected clubs’ will want to avoid falling foul of rules prohibiting the exchange of commercially sensitive information (CSI) – i.e., where sensitive non-public information is exchanged by one party with another that competes in the same market. In the football club context, CSI may well include tactical data, scouting knowledge, player transfer strategy or contract negotiations, and if shared between ‘connected’ competitor clubs, there is a possibility that competition concerns arise. 

While such risks can be alleviated by corporate governance measures such as ‘clean team’ arrangements, merger control enforcement risk is less easily mitigated where merger filing thresholds are met, or competition authorities are otherwise able to secure jurisdiction to review multi-club investments.

Merger control

(A) An introduction

At a basic level, merger control regimes overseen by competition authorities around the world generally aim to prohibit investments, mergers and acquisitions that would significantly reduce competition in any relevant market and/or worsen conditions for consumers.

The authorities will conduct a substantive review, considering the ‘markets’ and ‘overlaps’ involved, to determine the likelihood that the transaction poses competition concerns. By way of example, the European Commission’s test asks whether the transaction will result in a significant impediment to effective competition (SIEC). For the UK authority, the Competition and Markets Authority (CMA), the test is whether there is a substantial lessening of competition (SLC). 

(B) Application to football

The high-profile and high-value nature of football-related M&A, combined with the rising popularity of the multi-club model, means that investments in football clubs are increasingly likely to fall within the scope of merger control regimes. 

The application of merger control to acquisitions of football clubs is a largely unmapped area, with the exception of a handful of cases. These include the acquisition of Manchester United F.C. by the Glazer Family Trust through Red Football Limited (cleared in 2005 by the CMA’s predecessor, the Office of Fair Trading), and the proposed acquisition of the same club by BSkyB (blocked in 1999 by the UK Government). To date, no merger investigation in relation to a transaction involving a football club has been launched by the European Commission. This is partly due to the high turnover thresholds that are required to trigger a filing – a reason that may still negate any future Commission investigation into such deals. 

The most useful framework for an assessment of multi-club football deals is provided by the French Competition Authority’s (FCA) 2019 clearance decision following its investigation of INEOS’ acquisition of OGC Nice (INEOS/Nice).

(C) Market definition

Market definition is central to the assessment framework underpinning authorities’ substantive tests. It is only after a market has been defined that an investigating authority can: (i) identify who competes with the merger parties and who operates above or below them in the supply chain, and (ii) determine whether they have any concerns in relation to market overlaps between the parties. 

In the INEOS/Nice case, the FCA defined the market in which French professional football clubs compete as an at least European-wide market for the transfer of professional players. In considering the main parameters of competition in this market, the FCA identified the following as key factors considered by professional players when choosing to sign with a club: net remuneration, club reputation, contract duration, competitiveness of the national championship, and international competitions in which clubs compete. While the relevant market was considered to be international in scope, the FCA noted that more than half of player transfers by volume were between UEFA-affiliated clubs. The FCA also considered the sports marketing communication and sponsorship services market (not segmented by type of sport), which it said, is at least national in scope.

Two other clearance decisions, issued by: (i) the Hungarian competition authority in 2003 (regarding the acquisition by the group that controlled MTK Budapest FC, of an 80% stake in Ferencvárosi TC); and (ii) the Italian competition authority in 2005 (regarding the acquisition of sole control of Spezia Calcio 1906 S.r.l. by FC Internazionale Milano S.p.A.), led to the classification of the following relevant markets:

• the national market for professional football as a business activity;
• the (geographically undefined) market for the provision of football entertainment services;
• the national market for the sale of paid premium football television rights;
• the national market for the sale of domestic league television rights;
• the at least national market for the sale of football players;
• the national market for the sale of sports merchandising; and
• the national market for the provision of sports advertising and sponsorships.

(D) Potential competition concerns in football club deals

The existence of market overlaps per se does not necessarily mean that a transaction is problematic – indeed, it will very often form part of the rationale for the deal. Rather, together with market definition, an assessment of the overlaps forms part of the framework that an authority will adopt to ascertain whether their substantive test is met and therefore, whether they have prima facie competition concerns with a transaction, which may need to be addressed and/or remedied.

In INEOS/Nice, the FCA found that the merged entity’s market share in each of (i) the professional football player transfer market and (ii) the sports marketing and sponsorship market, would be below 1%. Accordingly, its view was that INEOS would remain subject to competition from French and other European football clubs, alleviating any competition concerns.

Of course, the FCA’s decision in INEOS/Nice does not preclude competition authorities from considering future deals differently. Hypothetically, investments involving either ‘bigger’ clubs or acquirers with many clubs within their portfolio, may give rise to more significant horizontal concerns. From a European perspective, enhanced scrutiny may be a possibility where (a) the relevant jurisdictional thresholds are met by the parties to technically trigger a merger control filing, and (b) the authority investigating the transaction identifies a European-wide product market, for example, pertaining to player transfers, marketing, sponsorship, television rights and/or merchandising. The high proportion of intra-European transfers amongst clubs (as recognised by the FCA in INEOS/Nice) and the commercial value of Europe’s ‘big five’ leagues may lead authorities to identify a European sub-segment of a product market, increasing the potential for higher market shares to be found.

Competition authorities might also be interested in acquisitions of football clubs by a buyer that holds an interest in prominent clubs of other sports. This could be the case if an authority was to consider a frame of reference that involved a cross-sport product market, akin to the one identified in INEOS/Nice involving marketing and sponsorship.

Comment

The question as to whether such hypothetical investments would generate substantive merger control concerns would depend on, amongst other factors, the identity of the owner(s) involved, the clubs involved, and the market frame(s) of reference identified by the investigating authority. The question of suitable remedies would also weigh, in part, on these factors – at the more severe end of the spectrum, this could result in a multi-club owner being required to divest its ownership in one or more of its existing clubs, or even the deal being blocked altogether, on competition grounds.

Whether or not any anticipated concerns would be substantive enough to necessitate remedies discussions, future multi-club dealmakers will do well to be mindful of the long arm of competition law, amongst the myriad of other regulatory frameworks to navigate.

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