European Super League clubs have a good chance of winning any legal battle with UEFA if football’s governing body tries to block plans for the breakaway competition, an expert has warned.
The 12 clubs, from England, Italy and Spain, announced plans on Sunday night to set up a competition to rival UEFA’s Champions League and Europa League tournaments.
In response UEFA has said any participating clubs will be banned from domestic and European competition and players, who take part, would not be allowed to represent their countries.
This could mean the Big Six in the Premier League, Manchester United, Manchester City, Liverpool, Tottenham Hotspur, Chelsea and Arsenal, may be booted out of the top flight if the plans proceed.
As reported by Sportsmail, the Super League has said it has already commenced legal action ‘in the relevant courts’, to head off any challenge from UEFA to its radical plans.
And now, an expert in sports competition law, Mark Orth, of MEOlaw based in Munich, has told Sportsmail he thinks the rebels will succeed if the row goes to court based on competition law and precedents set in previous cases.
‘I am of the opinion they have a strong case,’ said Orth, who has advised football clubs on this area of law.
‘The court is the right way to go. They have a good chance of winning. There are good prospects for the start of the Super League and the clubs that take part.
Orth’s confidence in the Super League case is based in part on the fact that two European courts have now passed judgements overturning similar moves by other sporting federations, making the threat by football's governing bodies appear hollow.
The European Commission has previously ruled that the International Skating Union cannot prevent speed skaters from participating in new money-spinning events. That decision was supported in a judgement in Europe's second highest court, the General Court in Luxembourg, in December.
And in January, a German court took that decision as a precedent when it prevented the national and international wrestling federations from blocking a new competition.
Orth says there have been other cases, too, in Sweden and in Italy, to name a few.
The fledgling Super League has not revealed which courts it has lodged papers with, but Orth believes they are likely to be the High Court in London and in Italy.
Although the UK is now outside of the European Union the law that applies in this area is largely unchanged. By taking their case to a court on the continent, the Super League opens the way to a judgement in the European Court of Justice.
UEFA is expected to make two challenges to the nascent Super League. Firstly, to ban its formation and secondly, if that fails, to impose the sanctions it has already threatened.
Orth thinks neither can succeed.
‘If a monopolist is allowed to prohibit the generation of competition, then you do not need competition law at all,’ he said. ‘If that is allowed it touches on the fundamentals of competition law. There should be an opportunity to open the market.’
He compares the situation in football to other industries.
‘What if Amazon just assumed it could introduce exclusivity for dealers saying if you are offering your goods on any other online platform you are excluded from our platform. There would be an outcry.’
In this case there is an outcry – against the European Super League proposal.
The Super League would include 20 teams, but 15 would be ‘founder members’ and guaranteed participation year after year, with only five actually qualifying. The founder members would be offered up to £310 million each to join the competition, which most observers outside of the clubs involved say would wreck domestic football.
Fans, politicians, governing bodies and some of football’s most famous names joined in condemning the staggering development, which was the brainchild of Real Madrid president Florentino Perez and was officially announced in a statement late on Sunday night.
But that may not hold sway in court.
‘When you apply competition law it should not be influenced by political considerations,’ said Orth.
The Super League clubs announced they had already commenced legal action in a letter sent by the group to FIFA President Gianni Infantino and UEFA counterpart Aleksander Ceferin saying the Super League has already been underwritten by funding of 4 billion euros ($5.5 billion) from a financial institution.
“We are concerned that FIFA and UEFA may respond to this invitation letter by seeking to take punitive measures to exclude any participating club or player from their respective competitions,” the Super League clubs wrote to Infantino and Ceferin
“Your formal statement does, however, compel us to take protective steps to secure ourselves against such an adverse reaction, which would not only jeopardize the funding commitment under the Grant but, significantly, would be unlawful. For this reason, SLCo (Super League Company) has filed a motion before the relevant courts in order to ensure the seamless establishment and operation of the Competition in accordance with applicable laws.”
However, competition law is notoriously complex and the Super League will have a huge fight on its hands, given the weight of the political opposition.
The European Commission vice-president for promoting the European way of life attacked the plans today.
“We must defend a values-driven European model of sport based on diversity and inclusion,” EU commissioner Margaritis Schinas said on Twitter after the clubs’ announcement.
“There is no scope for reserving it for the few rich and powerful clubs who want to sever links with everything associations stand for: national leagues, promotion and relegation and support to grassroots amateur football.
“Universality, inclusion and diversity are key elements of European sport and of our European way of life.”
And experts are also lining up against the Super League. Tsjalle van der Burg, assistant professor in Economics at the University of Twente, recently published a paper arguing the Super League is in fact a violation of competition law because it excludes most clubs from qualification.
“[It] means we’re talking about agreements that restrict competition, something that is contrary to competition law. The European Commission should therefore move to prohibit a Super League before it even starts,” Van der Burg said.