European Super League - back from the dead?
The long-awaited verdict from the European Court of Justice on UEFA, FIFA and the blocking of the breakaway league is in – so what does it all mean?
Those claiming the European Court of Justice decision on the case brought by A22, the company behind the European Super League project, against UEFA and FIFA is a boost for the breakaway haven’t grasped the issues. And much of what has passed for reporting after the judgement is merely an amplification of the plotters’ bluster.
It’s true the judgment doesn’t nail down the lid on the coffin of the idea, but one suspects many of those pushing for it are not the types who like taking no for an answer – even if it is the only one available.
It was also depressing to see the number of fans, at least on social media, whose response in the immediate aftermath of the ruling was that anyone opposing the ESL was endorsing UEFA and all it has ever done. That sentiment has been neatly picked up on by A22 – showing at least that it has learned the importance of PR since the unmitigated disaster of the ESL’s aborted launch. Too many, it seems, are prepared to buy into the nonsense that the plotters are plucky underdogs battling the UEFA behemoth – although with the state of social media these days you can never tell if these accounts are real.
As always, it is best to read the actual words in the ruling before commenting on a ruling. I’ve linked to it for ease, but there really is no alternative to reading it if you want to take part in the conversation properly. What follows is my take on those words, and the fallout. I am perfectly happy to discuss interpretations and concede points where necessary in the comments. For clarity, the judgement is binding and not subject to appeal.
The Court was asked to rule on a number of questions under the terms of the Treaty on the Functioning of the European Union (TFEU), most specifically Articles 101 and 102, which prohibit anticompetitive agreements and abuse of dominant position. For it is such matters that plucky underdogs Real Madrid, Barcelona and Juventus were deeply concerned about.
The judgement found that FIFA and UEFA “have, for a long time, held an economic and commercial monopoly – and therefore a dominant position – on the market concerned”.
It also says: “The dominant position of FIFA and UEFA on the market at issue in the main proceedings is based not only on an economic and commercial monopoly but also, ultimately and especially, on the regulatory, control and decision-making powers, and the power to impose sanctions”. This allows them “to set the framework for the conditions in which all the other stakeholders present on that market may pursue an economic activity there.”
And it concludes: “The combination of all of those factors in practice gives rise to a barrier to entry that is almost impossible for potential competitors of FIFA and UEFA to overcome”.
When considering the rules in question, and their application in this case at the time they were applied, the judgement uses the following form of words. “There is no framework for those rules providing for substantive criteria and detailed procedural rules suitable for ensuring that they are transparent, objective, non-discriminatory and proportionate.”
In short, the rules and the reasons for them were unclear. UEFA and FIFA had systems that were not transparent. Who knew?
So far, so much of a kicking for those football-governing bad boys. But none of what has been said can be interpreted as “crack on with the Super League”. In fact, the judgement explicitly says: “That does not mean that a competition such as the Super League project must necessarily be approved. The Court, having been asked generally about the FIFA and UEFA rules, does not rule on that specific project in its judgment.”
Despite all the bluster from A22 and its reporting as potential fact by people who should know better – “hey look, they are offering free football” doesn’t count as journalism in my book – the facts are as succinctly set out by Karl Matchett in The Independent’s Reading the Game newsletter (which is essential reading every week). He says: “The Super League is still subject to UEFA’s authorisation rules and procedures, but those rules just have to be more transparent … Put bluntly: the Super League would still have to get permission to set up, if their clubs want to stay in the system, which they have already said they do.
“UEFA was rebuked for the procedure of its laws rather than the substance. The old rules, which are in the process of changing, were criticised. That doesn’t mean it was wrong to have such rules.”
As he goes on to point out, UEFA has subsequently changed its rules, so the current rules that would allow it to prevent the establishment of an ESL have not been tested. Or, to put it another way, the lack of clarity and justification for various rules that led to sanctions made the Court rule against UEFA, but that the principle that UEFA can protect its competitions is not struck out.
One of the interesting points in the judgement was reference to EU freedom of movement. The Court considered whether the refusal by UEFA and FIFA to endorse a sporting competition could “infringe the right of free movement of workers enjoyed by the players who are or could be employed by the professional football clubs wishing to participate in international football competitions such as the Super League”. Again, it doesn’t rule that UEFA and FIFA did, rather that the basis on which it may have was unclear – we’re back to “no framework for those rules providing for substantive criteria” etc.
But the argument on this point goes to the heart of the real question of power relationships which underlie everything. It’s something that has animated wider political discussion on the EU, not just matters pertaining to football. That’s because ‘freedom’ and ‘competition’ are not neutral terms – their definition and application depends on context.
Stay with me here. Free movement of workers can operate in two ways. It can give workers the freedom to ply their trade wherever they wish. But it can also give employers freedom to employ labour from wherever they wish at the cheapest rates. The way freedom of movement is applied depends on the power workers and employers hold in the labour market at any one time, and arguably tilts the playing field in the direction of employers by opening up a larger pool of available labour.
It's that conflict and consideration of power relationships that was behind much left-leaning opposition to the EU project. And similar considerations can be applied to the EU’s professed commitment to competition. Most would agree that anti-competitive practices invariably result in worse outcomes for ordinary people. But too often, ‘competition’ is used by those challenging the status quo to get themselves into a position where they can wipe out the competition to them.
Remember, for example, how competition in the broadcast market was supposed to improve things for fans but, as it turns out, means they are must shell out for multiple packages at greater cost if they want to see a complete picture?
Which brings us to the absolute garbage being peddled by those who want us to see the Super League project as a fightback against Big Power.
Here's Bernd Reichart, CEO of A22. “We have won the right to compete. The UEFA monopoly is over. Football is free. Clubs are now free from the threat of sanction and free to determine their own futures.” Yes folks, Real Madrid, Barcelona, Juventus, AC Milan, Manchester United, Liverpool… all those clubs who originally signed up for the Super League just wanted to be able to compete, to determine their own futures. They just wanted freedom.
And I’m sure they did. Let’s just reflect on the freedoms the project sought to establish for these hitherto downtrodden champions of sporting integrity. The freedom not to have to qualify for the top table. The freedom never to be knocked off it. The freedom to keep even more of the money the game generates. The freedom to put their own interests before that of the game at large.
Some would have you believe the only mistake the original plan made was the closed league system, and that the latest iteration addresses that by allowing promotion and relegation. The fact that this is a tweak rather than a fundamental principle tells you all you need to know. Let’s be clear about the reason a group of clubs who have done everything they can to ensure their positions at the top of the game can never change and who view genuine competition not only as a threat but an affront wanted to set up a new competition. It’s because they wanted to ensure their positions at the top of the game never change and to reduce meaningful competition.
They have managed to do much of this within the existing system, making the game worse as a result. But such is their greed and arrogance even that wasn’t enough, and after twisting the game to suit their own ends they tried to destroy it in order to attain even more inbuilt, guaranteed advantage.
Anyone who allows justifiable criticism of UEFA and FIFA to obscure that fact is a fool.
One of the great ironies, from an English perspective, is that a significant driver for some of the original backers was the need to challenge the commercial dominance of the Premier League. And of course, the Premier League was a breakaway designed to consolidate the power of the top clubs. (The people who believe the ESL project is about saving the game presumably still think the Premier League is about helping the England team). The English Premier League is now by far the most commercially successful football league, and it will not have been lost on the 14 members the self-appointed Big Six would have left behind that the ESL would have wrecked it from a commercial and probably also a sporting perspective. It seems you can’t trust anyone, even your partners in one of the most successful commercial enterprises on the planet.
So what are the prospects for the European Super League? In England, the DCMS has made it clear that English clubs would be prevented from joining. And fan sentiment is still heavily against. As journalist Raphael Honigstein said: “German clubs will not join a new Super League for socio-political reasons. English clubs will not join a new Super League for legal and economic reasons — especially if it's being marketed as a ‘Premier League killer’ on the continent.” Bayern Munich have come out against joining any new project. No Spanish clubs apart from Real Madrid and Barcelona back the idea. The Italian Football federation has come out against. And supporter organisation Fans Europe has made its feelings clear.
It is tempting to portray this as a dead idea walking. But it will continue to be punted because football does have problems – problems with the undermining of genuine competitiveness, with economic inequality, with the quality of governance. They need solving, but they won’t be solved by self-interested executives and owners at individual clubs. They will be solved by proper regulation – and the UK government needs to hurry up in setting up the one it is committed too – greater transparency and commitment to collegiate working, and the re-establishment of the principle that the game as whole is greater than the sum of its individual parts.
Thank you to all of you who have subscribed, your support is appreciated. I’ve had doubts about whether there is a place for this publication over the last few months, but I think it’s a space worth trying to promote discussion in and people are still signing up, so it’s not just me. I don’t think this will ever be a mass-market publication, but I’ve had my time on those and quieter corners can be productive. So after a rest for the holidays – interspersed with the odd game, of course – I’ll be back in January. Happy holidays to everyone.
Spot on!