After it had been rumbling under (and occasionally just above) the surface for some time, news broke yesterday of the joint announcement by 12 of Europe’s elite clubs of the formal creation of the European Super League (ESL). Understandably, the announcement has shaken professional football to its core and has been met with widespread condemnation, including from the likes of Prime Minister Boris Johnson and French President Emmanuel Macron.

The proposed ESL is set to be a closed, franchise structure which is made up of 15 “founding clubs” and 5 further teams who qualify annually based on achievements in the prior season.  There is to be no promotion or relegation from the ESL, a franchise-style structure which is unprecedented in modern European football.  Its intention is for all participating clubs to continue to compete in their respective national leagues as well as existing European competition.

From a legal perspective, both sides have so far been posturing rather than showing their hand.  FIFA (the world football governing body) and its six confederations (which include UEFA (the governing body of football in Europe)) had previously responded in January 2021 to speculation of a European ‘Super League’ by stating that “any club or player involved in such a competition would as a consequence not be allowed to participate in any competition organised by FIFA or their respective confederation”.  It is reported that, further to the ESL’s announcement yesterday, the ESL has written to UEFA and FIFA warning that it has taken appropriate legal action in relevant courts to challenge the legality of the restrictions to the formation of the ESL and to counter anticipated efforts by footballing authorities to block the ESL.  It is almost certain that, for yesterday’s bold announcement to have been made, the ESL and participating clubs will have sought extensive legal advice in respect of the potential legal challenges they might face.  FIFA’s response to the ESL’s announcement, together with the joint response from UEFA and the domestic league associations of the “founding clubs”, has been to reiterate their disapproval of the proposed breakaway league with FIFA calling for all parties involved “to engage in calm, constructive and balanced dialogue” and UEFA’s joint statement stating that they “will consider all measures available to [them], at all levels, both judicial and sporting in order to prevent this happening”.

Domestically, the Premier League Handbook at rule L.9. prohibits entry by its member clubs into the ESL except with the prior written approval of the board of directors of the Premier League.

Whilst the actions of the six Premier League clubs to enter the ESL appear to be in breach of the Premier League Handbook, there is a sense that the much of the dispute will centre on the legality of the move from a competition law aspect. 

In summary, UK and EU competition law prohibit:

1. agreements, arrangements and concerted practices which may affect trade within the UK or the EU respectively and have as their object or effect the prevention, restriction or distortion of competition; and
2. the abuse of a dominant market position which has or is capable of having an effect on trade within the UK or the EU respectively.

With this in mind, there is potential for the proposition and financial might of the ESL to test and call into question the ongoing roles of FIFA and UEFA and their respective control over world and European football, rather as Kerry Packer did with the cricket establishment when he launched World Series Cricket in the 1970’s.  At this stage, consideration of particular legal arguments which may be pursued by interested parties throws up more questions than answers. Without calm, constructive and balanced dialogue, litigation appears inevitable, although it is unclear how possible dialogue will be given the posturing that immediately followed the announcement, especially when the institutions whose control over their member clubs is threatened will be highly reluctant to concede any material erosion of that control.   If that control is broken, their very reason for being will come into question, whilst for many of them, the ESL is also likely to pose a significant commercial threat with both present and future sponsorships and television income liable to come under pressure.

There is speculation that the timing of the ESL announcement, which coincides with impending approval by UEFA of a proposed re-jig of the Champions League format to take effect from 2024, as well as the lack of finality of the ESL concept (i.e. three of the proposed 15 “founding clubs” have yet to join), indicates a possibility that the elite clubs may be seeking to make a power play in order to improve their collective bargaining position in negotiating a revised format to the Champions League which better suits them.  This scenario seems unlikely and that it is more the case that the ESL’s announcement was timed to beat the announcement of the changes to the Champions League. It would be interesting to know whether the participating clubs and the ESL’s guiding minds had anticipated the hostility of the public reaction to their announcement, an important factor when looking at future sponsorship and television deals and how big a factor that proves to be.

For the time being, we watch and wait, but the politics and the legal manoeuvring may prove more riveting than a number of end of season matches.