Twelve European football clubs [1] signed on 17 April 2021 a framework agreement to form the European Super League (ESL). The ESL was announced as a major European football tournament in competition with the current UEFA Champions League. According to the Real Madrid president and one of the main sponsors of ESL, the ESL was essential for the continuity of football, since it would allow a significant increase in revenues for the whole business. [2]
UEFA took aggressive action against the ESL members threatening, amongst other things, their exclusion from FIFA, UEFA and national competitions. One of the first steps of the ESL was therefore to file a lawsuit against UEFA and FIFA (for breach of Articles 101 and 102 TFEU), and a request for interim measures, which were granted few days after, on 20 April 2021 by the Commercial Court nº17 of Madrid (Court). The interim measures, in essence, ordered UEFA and FIFA to refrain from preventing the development of the ESL, and from punishing clubs and players part of ESL during the main proceedings until a judgment on the merits is reached.
Afterwards, the Court decided in its Order of 11 May 2021 to stay proceedings and refer to the Court of Justice of the European Union (CJEU) several questions for a preliminary ruling in an expedited procedure (case C-333/21).
The questions posed refer to whether the course of conduct adopted by UEFA and FIFA is contrary to Articles 101 and 102 TFEU, and whether those same activities would unlawfully restrict Articles 45, 49, 56 and/or 53 TFEU. The counts of conduct connected with the request for a preliminary ruling include:
- the need for prior authorisation by UEFA and FIFA to clubs wishing to organize alternative competitions, given the lack of an objective, transparent and non-discriminatory procedure for approval;
- the possibility of opening disciplinary proceedings against ESL clubs and players;
- the assumption by UEFA and FIFA of the original rights of the competitions, depriving the clubs of such ownership and the derived marketing rights.
The CJEU has refused the expedited procedure under Article 105 of the Rules of Procedure of the Court of Justice given the fact that UEFA and FIFA have complied with the interim measures and stopped disciplinary proceedings. In the main proceedings, over half of EU Member States have submitted written statements formally opposing the creation of the ESL, which gives a good idea of the political and public opinion relevance of this matter. [3]
The Court requested UEFA in late September to confirm compliance with the interim measures. The Court stated that the initiation of disciplinary proceedings after the adoption of the interim measures constituted a "blatant disregard" of the measures and Court. [4]
