Lessons for our Sports Law from the European Super League, Royal Antwerp, and ISU cases
I spent the festive season imbibing the wisdom of the European Court of Justice (Cjeu) Judges who handed down resounding decisions on the 21st of December, 2023 that will go a long way in shaping the governance of sports not only in Europe but the world over.
The first decision involves a group of big football clubs in Europe that in 2021 indicated that they would set up a new professional football competition, the “Super League” with 12-15 professional clubs as its “permanent members” and others as “qualified members”. Fifa and Uefa came out guns blazing, rejecting the Super League outrightly and warning that any football player or club that would take part in and/or be associated with it would be expelled from all Fifa and Uefa organized tournaments. They also emphasized that they (Fifa and Uefa) are the authorized bodies to organize international football tournaments as provided for in their Statutes.
The second case revolved around a professional footballer of both Belgian and third-country nationality who took on the Belgian Football Association’s home-grown players’ rules endorsed by Uefa arguing that they infringe on the freedom of movement of workers, are discriminatory and violate competition law as under the Treaty on the Functioning of the EU (Tfeu). The said rules stipulate a minimum number of players that should be included in teams participating in the Belgian League.
The third dispute is about the International Skating Union’s power to authorize third-party skating events.
The columnist has previously written about the concept of “Autonomy of sport” on several occasions. Autonomy of sports in its original form was good for sports in its entirety because it ensured, for instance, that there were uniform rules across sports disciplines with sports disputes handled internally through dispute resolution mechanisms, usually arbitration stipulated under their constitutive documents. The autonomy of sports, however, has over time been abused by many sports governing bodies and has become their mechanism of promoting self-interest.
Over time, the European Union has through its organs pocked holes in sports governing bodies’ claims to sports autonomy especially through the Cjeu. Even many a time calling out the Court of Arbitration for Sports. Through a plethora of decisions from Bosman to Meca-Medina to Motoe and now the three recent decisions, Europe’s apex Court has laid down a marker stating in essence that the so-called “Lex Sportiva” is subservient to EU law. Whether it is free movement of persons, non-discrimination, or Competition, the Cjeu will set aside any arbitral award from a sports governing body or disputes resolution award that does not comply with EU law which to it is a public policy requirement (public policy is one of the grounds under which an arbitral award can be set aside). As Professor Stephen Weatherill posits, the Cjeu has created “conditional sports autonomy”.
In applying Competition law to sports, the Cjeu has expressed its concerns regarding the conflicting roles of sports bodies-they have both regulatory power and at the same time involved in economic activities. This is why in the European Super League matter, the Cjeu opined that Uefa which has a dominant position and with powers of prior approval of third parties that intend to set up inter-club competitions in Europe, must ensure that it has a “framework for those various powers providing for substantive criteria and detailed procedural rules suitable for ensuring that they are transparent, objective, non-discriminatory and proportionate”. The Court was not convinced that Uefa and Fifa’s rules met the aforementioned tests.
The Belgian Football Association’s rules were prima facie held to be discriminatory and not proportionate because they were discriminatory against players from the other European member states.
In the ISU case, the Cjeu, attacked mandatory arbitration mechanism in sports, arguing that because arbitration in sports is imposed on athletes unilaterally by sports governing bodies, it should be subject to judicial review. Lawyers will know what this means for arbitral finality. The European Court of Human Rights has added voice to this.
Space does not allow me to write everything regarding these landmark decisions. There is a lot to glean from them especially the role of regional Courts and Competition law in putting sports governance to order. I should write a follow-up piece.
Ivan Ojakol
About Post Author
