20th April 2021
The proposal of a supposed European Super League is daft and dreadful.
Only the most partisan supporters of the clubs involved and those who will be making money out of the proposal are able to make a positive case for the idea.
Many supporters of the clubs involved, as well as the other football supporters, just see it as a cynical attempt to to exploit and develop cash revenues at the expense of the wider interests of the sport.
But.
An idea being daft and dreadful does not make it also illegal.
The law is not magic and there is no wand for any politician to say ‘I prohibit you thus’.
In particular, what is called ‘competition law’ – which prevents abuse by monopolies and the forming of cartels – is not likely to be of any use in preventing the initiative.
Indeed, competition law may help more than hinder the establishment of a rival international international football league.
Only a handful of clubs are involved, and there is no inherent reason why UEFA should have a monopoly on European club competition.
The fact that it is an artificial pop-up international league, where many of the participating clubs have not even won a European club competition before, is neither here nor there.
Nor is the fact that many clubs (such as my own, Aston Villa) that have won such competitions are excluded relevant (and I hope my view would be the same even if Aston Villa had been part of this misconceived project).
It is a new league that will be in competition to the existing arrangements, and the starting point of the relevant law is that competition is a good thing – rather than monopolies.
The European Super League may well rob the clubs, the players and the supporters involved of something valuable – genuine European football – and replace it with an artificial contest with regular matches against Tottenham Hotspur.
But that does not create a legal remedy.
If anything, competition law may undermine the attempts of the status quo to quash the innovation and provide a defence to threatened retaliatory or punitive measures.
If the proposal is to be defeated – it should be by means of politics and commercial realities, not litigation.
Perhaps this exercise in misplaced exceptionalism and a false sense of the international importance of those supporting the measure will collapse under the strain of its contradictions and impartibility before it gets going.
But then again, that is also what said would happen with Brexit, and it did not.
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The fact that the move may very well not be illegal – thanks to DAG for pointing this out – has not, unsurprising, stopped our superhero PM from jumping in immediately to pronounce that government will stop it.
John Crace in the Guardian – excoriatingly amusing as ever – points out that this instant reaction contrasts markedly with having failed for weeks to put India on the travel Red List, and force en longer to notice and address the violence in Northern Ireland directly caused by the government’s own policies.
Crace concludes that in Britain football clearly outranks the problems of both the pandemic & Brexit.
Even without his proposition, in football money facilitates success. Protecting one’s assets may be the excuse, but greed is also ubiquitous, this time in plain sight.
The University of East Anglia’s Centre for Competition Policy did a more complete analysis of the competition issues here: https://competitionpolicy.wordpress.com/2021/04/20/do-plans-for-a-european-super-league-breach-competition-law/
Basically, there are solid competition law argments on either side of this issue.
If the actions of a club prevented a player from playing for his country would that be actionable?
Probably not illegal, but the player may have a good case if they sued. I’d imagine a player’s contract says that both player and club should obey the rules of the premier league, and one of their rules is that clubs can’t enter unsanctioned competitions with their first team during the season.
Even if it were actionable, which might not be the case in each possible jurisdiction, the chances of a player litigating against his employer or a national football association litigating against a richer foe rather than just picking another set of players are, I would suggest, quite slim.
BloJo on Brexit was bad enough but please save us from De Fibber on Footy.
Those bleating about the European Super league may well be quite right in assuming that some kind of watershed moment has been passed. However the Bleatees are somewhat late to the party. No philosophical line has been crossed.
The damage was done in 1893 for that was when Football ceased to be the people of Manchester v the people of Tottenham or wherever. When Willie Groves was transferred from West Brom to Villa for £1,000, football ceased to be a game between teams and became a commercial entity.
It’s a long way from £1,000 between Villa and West Brom to £Billions changing hands in the world of modern sport but essentially no new lines have been crossed.
Once Football accepted it was not the Birmingham boys challenging the Liverpool lads it in essence became a construct of Brands taking on other brands. Not so different from Coke v Pepsi. Why would I bother to invest my energies and pledge my loyalty to a Brand to which I have no ownership or local allegiance?
Any supporter who craved a rich sugar Daddy for “their” club hoping to emulate Chelsea, Man City or Spurs who now bemoans this latest development, crying foul, is not really thinking this whole thing through. No new line has been crossed. It’s just more of the same. The logical path it was always going down. They may want to think that one through before any more Localism arguments.
As for Pound shop politicians hauling themselves onto populist lorries trying to do their man of the people act. They would do well to keep their mouths shut and heads down. They have no skin in this game and their attempts to Own some safe territory are transparent and intellectually bankrupt.
As you already note. There is nothing illegal being done and insofar as the law may have a role it will be more in the service of the 12 than the rest.
If supporters really care, they will abandon the “Brands” and go visit their genuinely local club, join it and insist it plays with local players relying on training, organisation and effort to beat their mates local bunch from down the road.
At the moment this whole episode has the distinct ring of Cornish Fishermen moaning about Brexit.
Top commentary. Sport is about winning some losing some but above all taking part, not money, VAR, fouling and racial abuse.
As four clubs (Chelsea, Man City, Athletic and Barca) now seem to have withdrawn what are the likely consequences if the contract has indeed been signed. The lawyers win again?
I doubt that the club directors behind the ESL will sue those who were behind it and pulled out, whether there has been a breach of contract or not.
However.
JP Morgan will have costs and will have ensured that they get a chunk of money even if, as seems likely, the ESL collapses. So will the lawyers and PR folk involved.
Someone will have to pay them. So there might be litigation if a club like Tottenham fails to cover its share or the collective losses.
Much more likely is that everything will get sorted out behind the scenes. We might (but probably won’t) see what the costs were when corporate accounts are produced in a few years.
The crucial thing is there isn’t room for another European Football Tournament with the same teams. The fixture list is full as it is. If someone decides to create a new competition, either an existing competition would have to close, or different teams would have to play in the new competition. So though the ESL theoretically increases competition it does so at the expense of UEFA, since the ESL and UEFA Champions League cannot realistically coexist with the same clubs participating. Thus it would be entirely reasonable for UEFA to contend that if a club chooses to be part of the ESL then it could not be admitted to the UEFA Champions League and Europa League. It would be hard for the ESL to argue that a club could realistically play in both events. If ESL teams can’t be in the Champions League then continuing to play in domestic leagues would destroy competition for qualification places.
Teams do not get to participate in competition unless they are members of the relevant governing body. Where breakway competitions have sprung up in the past they tend to comprise clubs/teams that have broken away from an existing competition and formed their own.
Whether FIFA can ban players from ESL clubs playing in FIFA World Cups, and EUFA ban them from European Championships is a different matter. I think FIFA and UEFA are on much shakier legal ground in this respect.
From Eastham to Bosman to this.
These progressions were always there to be anticipated. There is no reason for surprise. There will be major changes now which will be approved in a legal framework.
Sky News were in the forefront of the reporting yet with a serious finger in the financial pie. A fact which will be over the heads of many yet all completely legal too.
As for Britain going Global we are now happy for our finest teams to play the likes of Norwich City and Sheffield United on a Saturday rather than hone and improve their and skills playing and beating top continental teams on a regular basis whilst at the same time increasing the national GDP.
Brexit Britain is turning into a very unambitious place which is going to be held back by its obsession with its’ past and its’ traditions which is another take on this story.
Our top teams already play other top teams in the Champions League. Brexit has nothing to do with this. In case you hadn’t noticed teams at competition in the Premier League is very strong and playing teams like Sheffield Utd isn’t an easy ride for the Big 6.
The main problem with the ESL was its total divorce from the football pyramid it pretended to support. No promotion into the ESL or relegation from it guarantees that separation. As soon as there was a threat of expulsion from the Premier League the English clubs caved in. this was not a genuine improvement of the system for the benefit of all. It was all about return on investment for the owners, nothing else. Good riddance to it.
Next season the top teams from all over Europe, not just a self selected elite, will compete at the highest level, as always. The ESL could not have improved on that. The American franchise model is not welcome and yesterday proved it.
Legislating hammer is another method.
Boris Johnson, once submitted by Starker can effectively say “I prohibit you thus”
This is the more interesting question.
How obscene would such a legislation be?
As the UEA article Martin Holterman referred points out, many such sporting competition arrangements are on the face of it in contravention of cartelisation laws, (eg Article 101 at EU level). But they are permitted because you can’t have a practical competition without restrictive arrangements that in the general case would not be permitted. Such permission is conditional upon the restrictions being reasonable and proportionate.
My (possibly faulty) recollection is that non-discriminatory provision for promotion and relegation has generally been an important part of the authorities’ willingness to agree that such rules were reasonable and proportionate. It’s usually the broadcasting revenue aspect that offends most. The Premier League rules came up in front of the Restrictive Practices Court in the 1990s, and the then Office of Fair Trading made a strong case against the rules as set out at the time, mainly in relation to broadcasting aspects. The Premier League won the case on that occasion, but it wasn’t a closed shop. I’m fairly sure the EC has also considered sporting competition rules from time to time. I think there is a partial understanding of what you can normally expect to get away with.
As UEA say, we cannot say for certain in advance whether the courts would have found this arrangement legal or not. But certainly I think the competition authorities would have had a good go at it because of the closed shop aspect. But the point is now moot.
As was well said, the competition aspect does work both ways, and maybe the clubs can threaten to take UEFA to court if they think their economic interests are excessively damaged.