Shortly before Christmas, the European Court of Justice (ECJ) handed down two far-reaching judgements for the world of sport. In essence, the two cases C-333/21 (European Super League, „ESL“) and C-124/21 P (International Skating Union, „ISU“) dealt with the question of whether international sports federations can make the organisation of competitions not organised by them dependent on their prior approval and impose sanctions on athletes and clubs that take part in unauthorised competitions.

This is what FIFA and UEFA have done, for example: Real Madrid and FC Barcelona („Super League Company“) are pursuing a project with the ESL to organise a new European football competition. However, FIFA and UEFA give themselves the authority in their statutes to authorise or prohibit new competitions – and did not give their approval to the ESL. They threatened to exclude clubs and players from all their competitions if their decision was not complied with.

European competition law prohibits companies with dominant market positions – according to the ECJ, FIFA and UEFA can be categorised as such „undertakings“ – from abusing this market power (Art. 102 of the Treaty on the Functioning of the EU). The ECJ now ruled that the above-mentioned provisions of the statutes constitute such an abuse of a dominant market position if there is no framework providing for substantive criteria and detailed procedural rules to ensure that the rules on the prior authorisation of competitions are transparent, objective, non-discriminatory and proportionate. The Madrid Commercial Court (which had referred six questions to the ECJ for a preliminary ruling) must now decide whether this framework is given in casu.

The ECJ then recognised that the prior authorisation rules of FIFA and UEFA also constitute an agreement of an association of undertakings within the meaning of Art. 101 TFEU, the purpose of which is to prevent competition. The question of whether this agreement is justified by legitimate reasons must now be examined by the Commercial Court of Madrid.

With the two judgements, the ECJ has on the one hand suggested that certain rules of the sports associations, such as the prior authorisation procedure, are not compatible with EU competition law. At the same time, it provided guidance on how the sports associations should adapt their rules. Immediately after the judgement was issued, UEFA announced that it had already made the necessary adjustments to its regulations. Whether the new rules are in fact legal, remains to be seen. The ESL still has a long way to go (and more legal proceedings).