13 Aug 2021

ESL: Football Saga Shifts to the Court(s)

In April, the Commercial Court of Madrid (“Court”) granted provisional measures forbidding FIFA and UEFA to adopt, any type of actions against the so-called European Super League (“ESL”) or against the teams and players participating in the newly proposed European football competition during the course of the main proceedings (Gecic Law has already given legal insight on this topic).  Before the measures, the ESL sent a letter to FIFA and UEFA officials calling for cooperation, but also warning that they had taken legal actions to prevent and nullify any efforts to block their project.


The Madrid Decision

The Court ordered the aforementioned football organizations to refrain from any potential action that may affect the launch of the ESL. It also stopped them from introducing any type of veto on the participation of the founding clubs in all competitions in which they are currently involved, until the court has fully considered the case.  The decision also forced UEFA and FIFA to nullify any measures that may have been taken against the founding clubs of the ESL. However, it only came after the practically simultaneous announcements on the establishment of and (temporary) suspension of the ESL.  The saga continues, so let’s have a look at the latest developments, including the Court’s order.


The Sides

In the subject proceeding, the applicant is ESL Company S.L. (“ESLC”) whose shareholders are the 12 founding clubs.  The ESLC is the sole owner of the ESL, and the parent company of three other companies in charge of the management and supervision of the ESLC.  The ESL aims to become the first European football competition outside of UEFA.

In a Statement dated January 21, 2021, FIFA and the six confederations (AFC, CAF, Concacaf, CONMEBOL, OFC and UEFA) clearly stated that they must organize and recognize all global and continental football competitions, providing them with a clearly dominant position in the sport. The ESLC is requesting precautionary measures against FIFA and UEFA due to their stance.


The Claims

Based on Article 102 TFEU, the applicant seeks a declaration of abuse of a dominant position by FIFA and UEFA on the internal football market.  Under Article 101 TFEU, ESLC requests a judgment related to the violation of free competition in the internal football market, carried out by UEFA and FIFA through the imposition of unjustified and disproportionate restrictions.  It also asks for an interim measure to prohibit all ongoing or future anti-competitive actions of FIFA and UEFA.  Finally, ESLC requested the removal of all negative effects of any direct or indirect measure against them.

On the other hand, FIFA and UEFA stated they still refuse to recognize the ESL.  According to their declaration, any player or club participating in ESL would be excluded from competitions organized by FIFA and the Confederations. The statement was confirmed by a warning issued by UEFA, as well as the English, Spanish and Italian football associations, regarding the adoption of disciplinary measures against clubs and players participating in ESL.


The Outcome

The Court found that conditions required to grant provisional measures from Civil Procedure Act are met. Moreover, the Court has asked the Court of Justice of the EU (“ECJ”) to determine if FIFA and UEFA are breaching EU competition rules by preventing clubs from creating the ESL as a separate competition. The Court in Madrid has also asked the EU’s top court if FIFA and UEFA are authorized to impose restrictions or penalties on clubs who remain part of the planned competition.

Finally, according to media reports, the ECJ informed the ESL and UEFA on July 8 that the Court’s request for an accelerated judicial procedure was rejected.  Namely, the ECJ set October 18, 2021, as the deadline for interested parties to submit observations on the ESL complaint.  The battle is heating up and Gecić Law will keep you posted.