Fair game? The European Super League, sport and competition law

Mondial | Vidéo | octobre 2021 | 09:05

Mark Daniels	Richard, great to see you again, as always. So, today we’re talking about competition law and sport, in particular professional football and competition law. Now, we’ve seen some cases previously involving competition law and sport, but I think it’s fair to say that this topic has become more prominent this year, in particular in light of the European Super League proposals. Do you want to just start by outlining what those proposals are?
Richard Whish QC	Well, yes. But one prior comment if I may – there really have always been cases on competition law and sport, and in my career I could quote you cases on tennis, equestrianism, snooker, billiards, cricket, horse racing, boxing; you know, there’s nothing new. But, obviously, the European Super League, this was huge news and it created a lot of noise. So, what was the proposal? That 12 of the elite football clubs of Europe, they would break away, they would establish their own Super League and, to that extent, they would have a mid-week tournament, and so they would withdraw, for example, from the Champions League and they would be in a league of 20 teams. There would be five positions for relegation and promotion, but none of those 12 would ever be relegated, so it’s a little bit like the kind of leagues that you get in the United States. So, that was the proposal.
Mark Daniels	Ok, so, in terms of the competition law arguments, some commentators have said that the proposals themselves are perhaps anti-competitive and then the counterargument is that actually preventing this new competition would itself be anti-competitive. Which do you think is the better view?
Richard Whish QC	Well, look, I have not seen the details of this case. I have not seen all the web of contractual documentation that there would be around the formation of the Super League itself. But, as to simply establishing a league in competition with the Champions League, my instinctive thought is that that sounds pro-competitive to me, to create a new competitive force in the market. So, I find it difficult to see that the establishment of the Super League in itself is anti-competitive. As I say, I don’t know what all the surrounding agreements say but, in itself, in principle, it seems to me to be pro-competitive if anything. If UEFA then react to that by basically saying we’re going to kill you at birth by boycotting you and preventing any of your footballers from ever playing in any of our tournaments in the future, well, I have to say that to me feels rather anti-competitive, because it sounds to me as though that’s using regulatory powers to achieve an anti-competitive purpose. And, let us not forget, in the International Skating Union case, recently in the General Court, the General Court did conclude that the ISU’s rules actually restricted competition “by object” and “by effect”. It’s fascinating to me that this, in a sense, slightly abstruse case on ice skating, becomes a very important precedent now going forward for the lawfulness of what’s going on with the Super League. And, of course, to make the point that this is being litigated in Madrid, and the Commercial Court in Madrid has referred the issue to the Court of Justice in Luxembourg.
Mark Daniels	It feels like many fans are actually on the side of UEFA in terms of being opposed to the Super League proposals. So, I mean, if competition law says this is all fine, do you think that it is perhaps part of the broader debate we’re seeing about whether competition law is doing enough perhaps to protect vulnerable consumers, if you see perhaps football fans as a type of vulnerable consumer? Could we perhaps see a new form of regulatory regime for football like we’ve been seeing for digital?
Richard Whish QC	Well, we have no idea what the lawfulness of all of this is yet and we’ve got to wait and see what the Court of Justice has to say, etc. But, what are the merits of all of this? There are heads and there are hearts, aren’t there? I have to say, I personally dislike the Super League proposals very much indeed, because I do like the existing football structure and I wish, incidentally, that football fans had a greater control over their clubs than is the case at the moment. So, ok, what’s the answer to that? I think competition law should be applicable to sport and that is what the current law says – in Meca Medina, the Court of Justice confirmed that sport, in principle, is subject to competition law. However, I don’t see any difficulty with having a regulatory regime as to how football as a sport should be run. I think it’s open to a Member State of the EU, or indeed for the United Kingdom, because it’s looking at this, I think it’s perfectly reasonable to devise a regulatory structure for football and I actually, personally, would rather welcome that. Is a football fan some variant of a vulnerable consumer? Well, I’m very hesitant about going down that road, I must say. Somebody with a season ticket at Chelsea for £1,500 a year doesn’t sound to me like a terribly vulnerable consumer. So, I’m not sure that that’s the peg on which I would hang any intervention.
Mark Daniels	Perhaps vulnerable in terms of not being able to switch clubs. But, I guess just picking up one of your points there about ownership of clubs, one of the interesting aspects of the proposals is that the big German clubs aren’t actually involved, and it’s thought that is perhaps because of the fan ownership model in Germany. But, it’s interesting that that has also been looked at recently by the German competition authority…
Richard Whish QC	Well, of course, it’s obvious that there will be competition law attacks on anything in football – why? Because there is a vast amount of money at stake. So, of course, people will use any tool in the toolbox to challenge things that they don’t like. But I’m aware that in Germany that you have this rule that the club must be 50.1 per cent owned by fans, which is another way of saying that they can’t be owned by the ruler of Arcadia or Utopia. Well, I have great sympathy for that. Query – is it anti-competitive? And there is a challenge in Germany, I’m aware, and my understanding is that, at this stage, the Bundeskartellamt has said, well, it may be that this looks restrictive of competition, but let’s not forget the Wouters principle as applied in Meca Medina, that, in certain circumstances, there may be rules governing the legal profession, or perhaps football, and they may be there to pursue some legitimate public interest, preserving the unique character of football, for example. And that, where that is the reason for a rule, if the rule is proportionate, no more restrictive than is necessary to achieve its objective, then it does not infringe Article 101. That’s the preliminary view of the BKA, there’s no final decision yet. But I see a lot of attractiveness in that approach, I think it’s very interesting indeed.
Mark Daniels	Perhaps it’s also worth mentioning there are a few other cases involving football clubs at the moment, on a slightly different tack, but, for example, in the UK…
Richard Whish QC	Well, I assume you’re referring to the fact that the CMA has just said it is investigating, firstly, the relationship of Leicester City Football Club with its dealers and, secondly, the relationship between Rangers and its dealers. Well, I mean, to be honest, that’s nothing to do with football. That’s just producing replica shirts and, in the way I distribute them, am I violating competition law? That could just as well be shoes or dairy products or toys. There’s nothing special about football in those cases. I can’t make out from the published material whether these are RPM cases or whether they are some sort of hub-and-spoke cartel case, because we did have a hub-and-spoke conspiracy with football replica kits 15 to 20 years ago. I don’t know what those cases are, but they’re not about football as such.
Mark Daniels	Ok, thank you very much, Richard.
Richard Whish QC	Pleasure.