1 Introduction

It’s no small thing that the most participated in hearing of all time at the Court of Justice of the European Union (CJEU) was that between the Superleague and UEFA. It is well known that the case regards the actions of UEFA aimed at excluding from the market of football competitions the Superleague, a competitor to its own European Champions League.Footnote 1 The participation at the hearing by national governments reflected the political importance they attributed to the case but also, in no small measure, the influence football has on politics. In a preface to a book celebrating 30 years of the Bosman judgment, former Advocate-General in the case, Carl Otto Lenz, stated, in an unusually candid way, that: “[i]n no other case in my career of almost 14 years at the Court have I been exposed to such efforts to take influence on a case. The political influence and power of football cannot be overestimated.”Footnote 2 Well, it is clear that the Court of Justice was, once more, immune to any possible such influence.

A few weeks before the delivery of the judgment I anticipated, in a classic and (I recognize) rather obvious play with words, that it would likely turn out to be just the first half of a match whose second half will take place before national courts and run into extra time at the EU political process. Continuing with the same metaphorical style I will be tempted to say that the CJEU gave one of its best performances of all time: instead of playing defensively, it went into the offensive, dribbling complex and controversial issues with the elegance of Messi and the precision and pace of Ronaldo.

Ultimately, the Superleague Judgment does not conclude the ‘match’ but does what was necessary: it creates the conditions necessary for the political process to step in and do its part in providing a much needed regulatory framework for transnational sports organizations to exercise their powers in an accountable manner and in accordance with the values usually attributed to the European Sports model.

If anything, the CJEU case law has long highlighted the need for such a regulatory framework. As I have stressed before there are limits to what courts can do in this area. The key issues raised in cases such as the Superleague, ISUFootnote 3and Royal Antwerp,Footnote 4 as well as in past cases, often require a regulatory follow up and implementation that courts are unfit to undertake. They often highlight systemic flaws in the governance of sports that require a framework regulating both the scope and nature of their powers and corresponding democratic scrutiny and accountability. This can only be properly addressed at the political level. Unfortunately, the political process has been missing in action in the sports regulatory arena. That should have been clear by now. As it is not, let’s hope that the Superleague, ISU and Royal Antwerp judgments, in particular, will make it so.

1.1 This is not about the superleague, this is about sports governance

In its judgment, the Court starts by refocusing the case to where it should be focused. Anyone following the hearing and even many of the academic debates would be easily forgiven by thinking this was a case where the Court would be deciding on the future of the Superleague. It wasn’t. As the Court makes clear in paragraphs 80–81 of its judgment it is not deciding on the Superleague project, its features or its lawfulness under EU law. Nothing in the judgment can be interpreted to require an acceptance of the Superleague competition (as originally presented), much less does it involve an assessment of the compatibility of such a competition with EU law. Instead, the CJEU had to decide if (and under which conditions) international sports federations (ISFs) (such as UEFA and FIFA, but also ISU) can exercise a de facto power to ‘license’ sports competitions.

For UEFA to try to make the case about the Superleague is understandable. It believed that, in the light of strong popular opposition to the Superleague, it would be easier to convince the Court of its legal arguments the more it constructed the case as being about the acceptance or refusal or the Superleague. Ultimately, this strategy failed and has, partly, turned itself against UEFA with the Superleague publicly claiming victory even if it doesn’t really have reasons to do so. The CJEU, by its part, seemed to be well aware of this parallel battle and the risks of its judgment being perceived as supporting the highly controversial Superleague project. That helps to explain why it made a point, early on in the judgment, to make clear that it is not about the Superleague.

At the same time, the judgment does bring significant challenges to UEFA in its role as a regulator and ‘licensing authority’ (gatekeeper in the expression coined by Steve Weatherill)Footnote 5 for football competitions and the accumulation and coordination of this role with that of organizer of the most important (and, so far, exclusive) European football competitions. These challenges naturally extend themselves to other ISFs’ role as licensing and regulatory authorities.

It would be a mistake to underestimate the extent of these challenges. The judgment entrusts, to a large extent, the assessment and enforcement of the criteria imposed by the Court on UEFA and other ISF’s or sports governing bodies (SGBs) on national courts. Their decisions will be binding on these SGBs under the authority of EU law. For reasons I describe below, it is likely for forum shopping to emerge among those wanting to challenge the decisions of SGBs. This will feed significant challenges to the exercise of SGBs’ powers as well as risks of fragmentation. While the Superleague judgment, for example, does not open the door to a Superleague in its original format, it clearly opens wide a door to other competitions in the light of the criteria UEFA is required to comply with. The three CJEU judgments empower (but also pressure) the Commission to take a more active role in reviewing the role of SGBs (notably in licensing and privileging their own competitions or with respect to the criteria used to redistribute the revenues from commercial rights). All this creates a context that is likely to require the political process to step in and regulate. This, I argue below, is actually a very good opportunity to do what is needed in the governance of sports.

2 An evolution in the case law can trigger a revolution in sports

The judgments of the CJEU confirm that EU law is applicable to sports but also recognizes them a special regime. It accepts that SGBs can assume a licensing role for their sport competitions. In part, this had already been recognized in MOTOE.Footnote 6 But in MOTOE, such power was held by the federation on the basis of a public delegation of that power. In Superleague, such power to license and regulate competing events was assumed by fiat (‘self-attributed’) by FIFA and UEFA. There have been other cases involving the self-attributed regulatory powers of sports federations, but they did not regard such general power to license and regulate an economic activity, including the power to decide who can exercise such activity and enter that market. In Piau, the General Court was faced with this question but could only address it with respect to competition law since it was ‘simply’ reviewing a Commission competition decision. This did not prevent the Court from stating that:

‘77 The very principle of regulation of an economic activity concerning neither the specific nature of sport nor the freedom of internal organisation of sports associations by a private-law body, like FIFA, which has not been delegated any such power by a public authority, cannot from the outset be regarded as compatible with Community law, in particular with regard to respect for civil and economic liberties.

78 In principle, such regulation, which constitutes policing of an economic activity and touches on fundamental freedoms, falls within the competence of the public authorities.’

This difference is not irrelevant. In fact, when it is the State that delegates the authority to license to a private body, one can expect for such power to be given subject to certain conditions and to be exercised under a public framework aimed at guaranteeing that it will further the public interest and will remain publicly accountable. What the Court has done in previous cases (in particular MOTOEFootnote 7 and OTOCFootnote 8) was to review if the State legislation which delegated such power to a private entity did satisfy those requirements. Instead, in a case such as the one of the Superleague (or ISU) the licensing power is a result of the market power hold by the private entity and is being exercised outside such public framework. As none of the parties framed the issue before the CJEU in this light (nor with respect to free movement), the Court was not asked to address the question which the General Court raised in Piau. The difference with MOTOE and OTOC may not have fully escaped the Court, however, as it arguably required more than it did in those cases.

The CJEU confirms that the recognition of such licensing power is subject to it being exercised according to transparent, objective and non-discriminatory criteria and being subject to effective independent review. But, at the same time, it goes further than simply stating these criteria, which are to be applied by national courts – and arbitration bodies - when reviewing the decisions and actions of UEFA and other SGBs in the future. It requires such criteria to be part of a framework of rules aimed at guaranteeing that the power of SGBs is not going to be used arbitrarily or in a manner that favours the SGBs own competitions.Footnote 9 More importantly, and this is new and significant, such framework must have both a substantive and procedural dimension. In other words, it is not enough for the SGB to reproduce in its licensing process the criteria imposed by the Court; it is necessary for the procedure according to which they will decide to be suited to secure compliance with those criteria. The existence of this framework is a pre-condition for an SGB to be able to exercise its power as a licensing authority. To be clear, without such a framework, a SGB such as UEFA cannot act to prevent any competition from being set up (including one such as the Superleague).Footnote 10

It is very likely (not to say certain) that the rules adopted by UEFA following the introduction of the Superleague still do not comply with the criteria required by the CJEU. As to the substantive criteria, its sufficient to note that the present criteria favour the Champions League by requiring those wanting to organize other competitions to comply with the obligation for the best teams of the national leagues to compete in the Champions League and for the calendar of any new competition not to adversely affect the Champions League. These rules clearly favour the Champions League and are aimed at making sure that no new competition is to adversely impact it. As such they do not comply with the non-discrimination requirement. It is also doubtful that the current criteria are sufficiently objective and transparent, so as not to leave a margin for UEFA to use its discretion in a manner that favours its own competitions.Footnote 11

Furthermore, it is equally doubtful that the procedures in place comply with the CJEU’s criteria. As mentioned, the procedures have to be designed so as to prevent the risk that, while claiming to pursue the substantive criteria, the SGBs decision-making may be structured so that their power may actually be used in an arbitrary manner, or in a manner that favours its own competitions. In my opinion, this requires, at a minimum, to set up such procedures so as to minimize the extent to which the SGB’s commercial interests (of its own competitions) may interfere with its role as a licensing authority that must act in an objective and non-discriminatory manner. One question that is bound to emerge is if this requires a separation within UEFA (and other SGBs) between its role (and, consequently, the bodies) deciding on the authorization of competitions and the role of managing the commercial interests linked to its own competitions? In other words, do the procedural rules required by the CJEU demand a kind of ‘Chinese wall’ to be erected within SGBs between their regulatory and licensing roles and their commercial activities? The Court does not address that specific point (likely because it was not raised) but its addition of procedural requirements to the substantive criteria and the objectives this is aimed at guaranteeing (that the power to license is not unduly influenced by the commercial interests) may be interpreted as leading to such an outcome. At the same time, it is clear that while such a separation would certainly reinforce the legal position of SGBs when exercising their regulatory and licensing role, it is also not possible to conclude with certainty from the judgment that they are actually required to do so. This is one of the points to be followed in subsequent national and CJEU decisions.

3 Legitimate sport objectives both empower and constrain sports federations

The CJEU also develops the reasons that both justify recognizing the special power of SGBs but also shape and constrain that power. The way the Court does this is not absent from doubts, however. First, on the level at which the justifications may operate and, as a consequence, also their scope. Secondly, on the relation between the reasons that justify restrictions to competition (and free movement) and the role of Article 165 TFEU.

As regards the first issue, the Superleague appears to adopt a narrow reading of the Wouters and Meca-Medina case law.Footnote 12 In those cases the Court adopted an approach whereby it excluded from the scope of anti-competition rules (and, in particular, a finding of restriction by object) certain sporting rules so long as they were necessary to pursue legitimate objectives and that their anti-competitive effect is inherent in what is necessary to the pursuit of those objectives. In Superleague, the CJEU considers, however, that such case law is not applicable to conduct where, “far from merely having the inherent ‘effect’ of restricting competition (…) reveals a degree of harm in relation to that competition that justifies a finding it has as its very ‘object’ the prevention, restriction or distortion of competition.”Footnote 13 Maybe, in this case, the powers of UEFA (and other ISFs and SGBs) are aimed at preventing competition to their own events and that must be distinguished from a restriction of competition inherent in a rule which is aimed, instead, at regulating a different aspect of the sport. One the other hand, the CJEU restated in the judgment that the intent is irrelevant.Footnote 14 Instead, it based the distinction on the ‘degree of harm’ to competition. This is not a concept easy to define and leaves to national courts and competition authorities some significant margin of appreciation. Following other recent judgments, Weatherill has questioned the extent to which Wouters and Meca-Medina may still be good law.Footnote 15 It should be noted, however, that the finding of a restriction by object by the Court takes place on the assumption that the powers held by the SGBs are exercised in a context where “there is no framework providing for substantive criteria and detailed procedural rules suitable for ensuring that they are transparent, objective, precise, non-discriminatory and proportionate” and that it is this that reveals “by their very nature, a sufficient degree of harm to competition.”Footnote 16 That being the case, it is not to be excluded that if the framework required by the CJEU is put in place by SGBs, the Wouters and Meca-Medina exceptions could be applied. This discussion is relevant because once a restriction on competition is established, the scope of justifications that can be invoked is narrower and mostly of an economic nature.Footnote 17

As to the legitimate objectives that justify recognizing to sports a special regime, they appear at different stages of the reasoning of the Court. One aspect that is clear is the secondary role attributed to Article 165 TFEU and its defence of the European Sports Model. The Court clearly diverts from Advocate General Rantos’ interpretation of Article 165.Footnote 18 For the CJEU, in line instead with Advocate General Szpunar’s Opinion in Royal Antwerp,Footnote 19 Article 165 is a purely programmatic provision guiding the exercise of the direct EU competence on sports, described by the Court as only supportive of Member States’ powers in this area and allowing the Union to pursue actions but not policies.Footnote 20 The CJEU could (and perhaps should) at least recognize that Article 165, while being of a programmatic nature, embodied a set of values that could be relevant both in guiding the exercise of other EU competences (such as in the internal market), which can be used to regulate sports as an economic activity, or in ascertaining the public interests that may justify restrictions to free movement and competition. The CJEU, however, has not even gone this far. The closest it comes to it is by recognizing that Article 165 reflects the special social and educational importance of sports (including as an economic activity) and that such importance and the specific nature of sport may be taken into account when interpreting the provisions in the Treaty that allow for restrictions to the free movement and competition rules.Footnote 21 It is in the context of the latter provisions, and not of Article 165 TFEU, that the CJEU envisions, as it has done so far in its case law, to take into account the special nature of sport in ascertaining and defining the legitimate objectives pursued by sports organizations that may justify restrictions to free movement and competition rules. This further narrows the scope of these justifications since as exceptions, foreseen within free movement and competition rules themselves, they are to be interpreted restrictively. That said, it is not uncommon in the case law for such restrictive interpretations to be broad in practice. Superleague itself provides a rather broad scope of legitimate objectives to be taken into account in the area of sports.

The first level at which these legitimate objectives and interests worthy of protection emerge is when discussing whether SGBs should be allowed to assume the role of licensing authority within its sport at all. The CJEU’s acceptance of such power is based on the need for common rules that are necessary to guarantee homogeneity, the coordination of the competitions calendar, and that those competitions are based on equal opportunities and merit.Footnote 22 At the same time, the CJEU makes it clear that, in the absence of a framework “for substantive criteria and detailed procedural rules for ensuring that they are transparent, objective, precise and non-discriminatory” such power amounts to an abuse of dominant position and violates EU law.Footnote 23

But the more developed treatment of the legitimate objectives that may justify restrictions to competition comes after the Court has established that the power held by UEFA amounts to a restriction by object under Article 101 TFEU. Once that is the case, the CJEU reviews whether the conditions necessary for an exception under Article 101(3) are satisfied.Footnote 24 The CJEU’s analysis takes place under an inherent tension between the recognition of legitimate sports objectives that are not strictly (nor necessarily) economic and the economic efficiency analysis mandated by Article 101(3) TFEU. A tension that the Court solves, in my view, by appealing to a concept of efficiency gains that relies on the benefits enjoyed by broader categories of users, comprising, inter alia, national football associations, professional or amateur clubs, professional or amateur players, young players and, more broadly, consumers, be they spectators or television viewers. In practice the efficiency gains require looking at the impact on the entire ecosystem in and around football, thereby embedding the economic analysis to be performed under Article 101(3) TFEU of a much larger set of social and cultural values. The objectives recognized by the CJEU to be taken into account in such analysis include the open, meritocratic nature of the competitions concerned and ensuring a certain form of solidarity redistribution.

In the end, they are not far from Article 165 TFEU’s reference to the promotion of ‘fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen’ (para.2). The promotion of fairness, openness and integrity in sports competitions are the fundamental objectives that ought to guide the European Union’s actions in sports but also justify restrictions on free movement and competition rules. In order to do so they must necessarily be reflected in the substantive criteria to be used by SGBs in deciding which competitions to authorize but also in the organization of their own competitions in the light of the obligation not to discriminate.

Openness, a crucial aspect in Superleague, requires open leagues, organised with promotion and relegation of teams. But, in my opinion, it also requires for the EU to protect a system of multi-level leagues where the development of a pan-European league or leagues should not undermine the existence of national leagues. In addition, openness requires competitive balance. While competitive balance does not require openness (closed leagues may even have stronger incentives for competitive balance), openness requires competitive balance. A league with formal promotion and relegation rules but where those that remain at the top and those that keep being relegated are always the same is not really an open league, particularly when the redistribution of revenues reinforces the competitive gap. Competitive balance is instrumental to genuine openness. Such competitive balance is also required by fairness and integrity. A competition is only fair if there is some competitive balance among the competitors and it only respects integrity if all effectively play under the same rules, including financial rules. As such, these different elements are inter-connected and must be expressed in the criteria to be used in assessing which sports competitions ought to be authorised.

It is in light of these objectives that SGBs, including UEFA, must exercise their licensing authority. In other words, the substantive, objective, transparent and non-discriminatory criteria required by the CJEU to be applied by SGBs when assessing requests for new competitions must be guided by these objectives. It is only if new competitions are not fit to pursue those objectives (or, at least, not as much as existing competitions) that they can be refused authorization. The purpose of these objectives is also reflected in the CJEU’s discussion of the same criteria when discussing the centralization of the commercial of rights of the football competitions. It accepts this but with reservations and making clear that it must be used to promote solidarity in the football structure at three levels: (1) promoting equal opportunities to compete between the participating professional football clubs; (2) to have a trickle-down effect between professional and amateur clubs; (3) boasting the educational and social function of football.Footnote 25

The reasoning articulated by the CJEU in this area constitutes a challenge to existing UEFA competitions but also an opportunity for UEFA to make good on its promises of more balanced European competitions and more solidarity across the different levels of football. Ironically, having been triggered by the action of some of Europe’s wealthier and more powerful clubs, Superleague actually empowers UEFA with respect to these clubs. It is to be seen if UEFA will actually use this opportunity to challenge that power and make European football and its competitions more balanced and genuinely open. In any event it is clear that the analysis imposed by the Court, and the criteria guiding it, constitute a two-fold challenge to existing UEFA competitions.

First, as mentioned, while the CJEU accepts that there are legitimate objectives justifying a vertical model for the organization of sport that has, at the summit, the regulatory and licensing role of ISFs and SGBs, it also makes clear that this cannot be used to favour the competitions organized by those bodies. The specific values and interests of sports recognized under EU law do not require nor authorize the privilege of competitions organized by the SGBs themselves. Instead, the entire reasoning developed by the CJEU is intended to make sure that the recognition of the regulatory and licensing role of SGBs cannot be used to favour their own competitions. Any competition will have to be assessed under the same criteria, such as being open, based on sporting merit, promoting solidarity and competitive balance. As a consequence, while it seems clear that UEFA (once it has the appropriate substantive and procedural framework in place) can refuse to authorize a competition such as the Superleague, it seems equally clear that it can’t refuse to authorize a competition complying with the abovementioned criteria.Footnote 26

In addition, the compliance of UEFA’s own competitions with such criteria will need to be assessed and scrutinized. There are growing claims that UEFA’s competitions no longer comply with these criteria. Competitive balance and openness have decreased significantly in European football competitions. The new rules governing UEFA’s Champions League have also reinforced the historical rights of some leagues and clubs over others and the distribution of commercial revenues actually operates in a regressive way without promoting equal opportunities to compete. These aspects of the Champions League have also contributed to a reduction of competitive balance within national leagues. Furthermore, there are serious questions about the extent to which the commercial interests of UEFA and FIFA have impacted on the protection of fairness and integrity in sports.Footnote 27 There is an inherent conflict of interest between UEFA’s role as a disciplinary body or a financial fair play regulator, for example, and its commercial interests in protecting the position of certain teams (generating higher broadcasting revenues) in its competitions. These conflicts of interest, absent certain institutional safeguards being put in place within UEFA, put UEFA’s competitions at least in a comparatively disadvantaged position in meeting the criteria resulting from the legitimate objectives of sports recognized as worthy of protection by the Court.

Secondly, the CJEU makes it extremely difficult to envision for UEFA to continue to be dominant in the European football competitions market by recalling that “a sizeable market share” is evidence that the “decision or agreement enables the participating undertakings to eliminate all actual competition, which alone suffices as grounds to rule out the exemption provided for in Article 101(3) TFEU.”Footnote 28 It is difficult to reconcile this statement with a possibility for the Champions League and other UEFA competitions to continue to dominate the European market for football competitions. As such, the judgment does not limit itself to open the door to new competitions challenging the dominance (if not the existence) of the Champions League. It also puts into question the model of a single, integrated, system of European competitions centralized in UEFA. It is clear that the CJEU does not consider such a single integrated and centralized set of European competitions necessary to pursue the special objectives it recognizes. It accepts that the unique nature of sports, and football in this case, may require a centralized management of its calendars and, as a consequence, the licensing role attributed to UEFA. But that is different from requiring (or even allowing) a single integrated system of competitions, much less for these to be organized centrally by UEFA itself. On the contrary, the reasoning runs counter to such a conclusion. It is, therefore, perfectly possible for different European open competitions to emerge and co-exist. So long as they all satisfy the criteria which correspond to the objectives recognized as worthy of protection in EU law they would have to be authorized.

3.1 Three hypotheses for the future of European football competitions and sports governance

The open question is what this will mean in practice. So far, UEFA appears to be either oblivious to such risks or preferring to publicly ignore them. Perhaps it hopes that its market power and political support will continue to be enough to dissuade effective legal and practical challenges. I have doubts that will be the case. While I do not underestimate the high transactions costs involved in setting up an alternative competition, I think the Judgment of the CJEU strongly reduces such costs. The crucial difference is that a company can be formed and propose a competition for approval without the initial involvement of any clubs and, in fact, if being based in an open model, it should not involve any clubs. Such company can design a European competition model that can be, at least, as compliant with the open, redistributive and competitive balance criteria as the Champions League and submit it for approval to UEFA. In principle, UEFA will have to approve such a competition and once that occurs, the new competition is free to attract the clubs that win national leagues to participate without UEFA or the National Football Associations being able to do anything to oppose it. If UEFA, instead, refuses to authorize such a competition this will be challenged before a court and UEFA will have to demonstrate that the format of this competition is less suited than the format of its own competition to achieve the objectives recognized by the Court as worthy of protection. It would then have to be seen if such competitions will co-exist with the existing (or other) European competitions or replace them. Certainly, as mentioned, the judgment recognizes UEFA’s authority to coordinate the calendar of sports competitions. But it is equally clear that it cannot use that power to protect or favour its own competitions. Where will this ultimately lead?

A first hypothesis will see UEFA giving up its role of organizing European football competitions to focus on its regulatory and licensing functions. With respect to the latter, it could try to preserve a single integrated system of competitions by setting up a bidding process for the organization of these competitions. As the Court recalls in the part of the judgment where it discusses the centralization of commercial rights (but equally valid, in my opinion, in the context of licensing the competition itself): “Where there is no competition between vendors and thus no ‘inter-product’ competition, that competition can be ensured, inter alia, through the use of an auction, selection or bidding procedure that is open, transparent and non-discriminatory and leads to impartial decision-making, thereby enabling actual or potential buyers to engage in effective, undistorted competition ‘for the products’.”

UEFA could, in this way, protect a single and integrated system of European competitions (as is currently the case) while ensuring competition for the organization and management of such competitions. It is important to note that this will not dispense UEFA from showing that there are efficiency and consumer gains from such a single and integrated system of European competitions. It would also have to organize the bidding process in accordance with the framework required by the CJEU and the assessment criteria would, naturally, have to be suited to the pursuit of the specific interests of sports embedded in the European Sports Model (as mentioned: redistribution and solidarity; merit based and openness; equal opportunities of competition between the different football clubs).

It is unlikely for the political dynamics within UEFA to lead to such an outcome. If nothing happens politically at UEFA or outside, the most likely risk is fragmentation. While attempting to preserve its own competitions (or, at least, the Champions League), UEFA will be forced to accept new European competitions which would, at least, involve a similar degree of openness, competitive balance and redistribution.

The chances of this happening are strongly increased by the role to be played by national courts in applying the criteria developed by the CJEU. In case UEFA would refuse those new competitions and/or act to prevent them, cases will be brought in the national jurisdictions where the companies applying for a new competition are established. It will be for those national courts to assess a possible refusal by UEFA of such competition. Those companies are bound, therefore, to forum shop for the jurisdictions more sympathetic to challenge UEFA’s role and competitions.

This creates, as mentioned, a serious risk of fragmentation. The risk is much higher in this case than following MOTOE, which was both, arguably, more deferential and involved the assessment, not of the market power and actions of an SGB, but of a legislative public framework granting the licensing power to that SGB. This entails a significant difference. Once the public framework is reviewed and validated under competition rules, it is assumed that it will be on public authorities, to a large extent, to review compliance with that framework. The role of courts becomes secondary and deferential to public authorities in such a case. That is not what happens with UEFA. The intermediating and regulatory role of public authorities is missing and as such it will have to be for the courts to review on a case-by-case basis the decisions of SGBs.

The latter is a first argument for such a public framework to be created at European level. Without it, the uncertainty and the corresponding political and economic costs will be high. This will be so for UEFA itself, which will increasingly have to negotiate the commercial rights of its competitions under the uncertainty of what will be the future of such competitions.

The third possible outcome involves, therefore, the EU political system entering the field. While competition rules are primary law (they prevail over secondary legislation), the Treaty attributes to the EU legislator a significant margin to adopt legislation that defines and regulates the exceptions to competition that may be beneficial to consumers (Article 103 TFEU). The EU legislator may therefore intervene to adopt legislation to preserve a single and integrated EU system of football competitions. This intervention should actually take place under the legal basis of Article 114 TFEU, in the light of the impact of these matters both on competition and free movement.

The best possible outcome from the Superleague saga will be for it to trigger the EU political process to develop such a public framework. Without it, courts will increasingly be faced with an almost impossible choice between simply denying such broader regulatory and licensing powers to ISFs or authorising it without effectively being able, on a case-by-case basis, to develop, implement and monitor such a public framework themselves. This will lead at best to a fragmented and at worst contradictory, set of decisions on how sports governance and competitions will be set up in Europe. It would also be almost impossible to protect a single, integrated, system of European football competitions.

4 Courts and sports governance

The CJEU and national courts have played a crucial role in increasing the accountability of sports governing bodies but they are not the best institutions to develop and implement detailed regulatory criteria to address all the issues (and trade-offs) raised by the powers exercised by those bodies. Courts usually review the criteria under which public authorities delegate and regulate the powers attributed to SGBs, but they are in a difficult position to effectively develop an equivalent public framework to be imposed on them. In the absence of such public framework, it will be difficult to guarantee effectively a balanced implementation of the principles that ought to shape sports governance under the criteria courts themselves put forward.

The CJEU makes patently clear in Superleague what was already inherent in much of its case law on sports: a procedural and substantive framework needs to be put in place for the exercise of the regulatory and licensing powers of sports governing bodies to be legitimate. But it is highly unlikely for SGBs to develop it themselves and it will be almost impossible for the CJEU, together with national courts, to successfully articulate it and implement such a framework.

In this context, absent legislative intervention, one of two things could happen. A first possibility is for courts to end up becoming extremely deferential to the licensing and regulatory powers of ISFs. They would restate the general principles embodied in the case law but without actually reviewing in detail how they are being implemented by the ISFs. However, it is extremely hard to argue that such deference is justified in a context where they are acting under the risk of clear conflicts of interests and where, moreover, they are not subject to effective independent scrutiny. Since their regulatory and licensing power (to authorise and regulate a competitor to themselves) is in conflict with their own commercial interests, the minimum one should expect is for such power to be strictly reviewed. If that is not done by a public regulatory authority it will have to be done by courts.

A second possibility would be for the Commission to step in and increase its regulatory oversight on sports federations and their licensing and regulatory powers. The Commission has, however, been rather reluctant to intervene in sports (most of the cases have been brought by individuals and it is not uncommon for the Court to have a much tougher approach on SGB’s than the Commission).Footnote 29 Part of the reason may be that its powers in this area are actually limited to competition rules. It cannot bring actions against ISFs on the basis of free movement provisions, for example. This will always determine a limited oversight over the regulatory and supervisory powers of sports federations while the case law of the Court makes clear that such oversight requires considering also free movement. In addition, the Commission’s enforcement powers under competition law are not enough to allow it to analyse different alternative models of organizing sports competitions and the trade-offs that they involve.

In my view, any appropriate regulation of this area requires a comprehensive approach and public oversight. The decision to be taken on the authorisation of sports competitions should not be a discrete choice but should, instead, include an analysis of the trade-offs involved in different alternativesFootnote 30 in the light of the different objectives pursued and recognised under EU law, both those of competition and free movement rules and those reflected in provisions such as Article 165 and the European Sports Model. This is difficult to be done properly either through ad hoc judicial decisions or by the Commission acting only under competition rules.

In the light of all of the above, I see no better alternative than the development by the EU political process of a European public framework for SGBs and the powers they exercise. This may involve the creation of an independent regulatory agency for sports.Footnote 31 There is some talk of possible political action at EU level but it is unclear what is meant at this point. So far, the EU political process has demonstrated substantial resistance to developing the necessary public regulatory framework for sports governance. This is so even in the face of multiple scandals that highlight the extent of the systemic problems faced by SGBs.Footnote 32 One cannot exclude, however, for further developments from the Superleague case to place further pressure on the EU political process. The final decision of the Spanish court is pending. Even after the Opinion of Advocate-General Rantos on the case, the Spanish provincial court ruled favourably for the Superleague on its request for interim relief. To decide so, under Spanish law, it had to be convinced that the law is prima facie favourable to the Superleague’s claims.Footnote 33 The ECJ judgment reinforces the likelihood of an outcome favourable to the Superleague in the Spanish Court. It may not have any immediate effects, but it will be an additional lever for the EU political process to act.

Let’s hope it won’t be necessary for things to get much worse before the EU political process makes them better. It needs to act not to only to protect European football from the likes of the Superleague. It needs to act to also protect sports from itself.