European Super League takes a hit in court: Explaining the initial ruling and what's next

The wheels are grinding slowly through the European Union’s Court of Justice. Six months after the hearing pitting the three rebel Super League clubs (Barcelona, Juventus and Real Madrid) against UEFA, we have the initial non-binding ruling and it leans towards UEFA and the status quo, rather than claims that the governing body of European football is abusing its monopolistic control of the sport.

– Super League hopes fade after initial court ruling

You can read the press release here, but let’s break down the impact of the initial ruling on the Super League plans as well as what might follow.

Q: So what does this mean?

A: Strictly speaking, it means nothing because it’s not a final verdict. It’s an opinion filed by the Advocate General that is meant to inform the decision to be made later — probably in the spring, possibly in the summer — by the fifteen judges on the court. They will likely come up with a verdict by consensus — it’s not like the US Supreme Court, where cases are put to a vote with a dissenting opinion — and while they will take the Advocate General’s guidance into account, they don’t have to follow it.

However, according to those who follow such matters, in the vast majority of cases, the court will largely follow the Advocate General’s reasoning at least 65% of the time and another 25% of the time, they will reach a largely similar conclusion with a different legal argument. Only in one case out of 10 will seem them have a sharp divergence of opinion, which makes this a decent bellwether of how things might go.

On the other hand, according to others familiar with the process, the judges tend to be more independent minded than the Advocate General, who often falls in line with the current institutional and political will of governments. In short, it’s encouraging for UEFA, FIFA, the European Club Association and all those who favor what’s known as the “European Sports Model” — essentially, a pyramid structure with promotion and relegation sanctioned by a governing body.

Q: So we won’t see a breakaway European Super League, then?

A: The case was never really about that because clubs are in fact free to form their own competitions with whoever they like, whenever they like. That has always been the case and that hasn’t changed. The question is whether clubs can form and run their own leagues and competition while remaining in the current football ecosystem run by FIFA and UEFA — if you recall, this is what the European Super League was all about.

The ESL essentially wanted a competition to replace the Champions League, one that they could largely run themselves, while still playing in their domestic competitions. (Which, for most, is just as lucrative if not more lucrative than the Champions League.) The advocate general found that you can only do that with permission from the governing body. In short: you either embrace the pyramid structure fully, or you don’t.

He also found that UEFA and FIFA’s position — whereby clubs who left the Champions League to form their own competition would face expulsion from domestic leagues and other sanctions — was largely compliant with EU competition law.

Q: Largely?

A: Yeah, the one exception was that individual players should not be punished if their club breaks away to join a rebel Super League that was not approved by UEFA. FIFA had threatened to ban Super League players from competitions like the World Cup.

Q: So what are the Super League clubs saying?

A: Well, A22, the company that represents their interests, tried to put a positive spin on the Advocate General’s opinion by highlighting two nuggets. One is that UEFA bears a “special responsibility” not to “unduly deny” third parties access to the market, which frankly doesn’t mean much as I see it.

The other is that whatever sanctions are imposed on clubs that may join unauthorized competitions must be proportionate and clear, which, were it to happen again, I guess leaves room for other lawyers to interpret what “proportionate” means. But it’s pretty obvious they are taking this as a setback.

It’s not a coincidence that UEFA, FIFA and the European Club Association (ECA, a body that represents the interests of professional clubs) all said they “welcome” — “warmly welcome,” in UEFA’s case — Thursday’s opinion. You’ll find no such language from the Super League clubs in the A-22 statement.

Q: Care to make a prediction about what will happen when we get the definitive verdict?

A: Let’s just say it’s half-time and the game’s governing bodies have a healthy 2-0 lead, but there’s another 45 minutes to go.