However, the ESL had actually violated UEFA statutes, specifically Article 493


which states that, ‘International matches, competitions or tourna- ments which are not organised by UEFA but played on UEFA’s territory shall require the prior approval of FIFA and/or UEFA and/or the relevant Member Associations in accordance with FIFA Regulations Governing International Matches and any additional implementing rules adopted by the UEFA Executive Committee.’1


In short, the clubs involved who start- ed the ESL had to ask UEFA for permission…which they didn’t do!


Another significant piece is that a number of individual club executives of the ESL had access to confidential commercial information involving UEFA such as strategy and revenues. UEFA could therefore have cause to pursue a breach of confidentiality, as the information could have been used by those individuals involved in setting up the ESL to gain an unfair advantage.


The next piece is wider ranging as it covers competition laws not just in England…but within the EU. Any proposed measures UEFA and FIFA made against ESL, would have entered this territory. EU courts have been consistent in having sport and sporting activities beingsubject to competition laws, with no exceptions. However, no infringement would be found if a sport association’s restrictive practises and/or conduct have a legitimate objective and are inherent and proportionate to the objective2


. These actions also impinge upon a possible breach of Article


101 of the Treaty on the Functioning of the European Union (‘TFEU’). This involves whether measures by UEFA and/or FIFA would constitute an agreement between an association of undertakings, having the ob- ject of effect preventing, restricting, or distorting competition3 er, the ESL may in turn impinge upon Article 165 of the TFEU, where the


. Howev-


EU shall be ‘…developing the European dimension in Sport, by promoting fairness and openness in sporting competitions…’ plus the European


Commission White Paper on Sport where there is a need to ‘…preserve a competitive balance between clubs taking part in the same competition…a pyramid structure of competitions from grassroots to elite level and organ- ising solidarity mechanisms between the different levels and operators…’. It is at this point I would now bring in the famous Bosman ruling of 19954 and the lesser known UEFA Champions League ruling of 20035


in deal-


ing with the equality between clubs. However, EU courts have held that sporting bodies have the power to ‘authorise’ alternative events if such power is subject to restrictions, obligations and review6


1 https://www.uefa.com/MultimediaFiles/Download /uefaorg/General/pdf


2 Case T-313/02 Meca-Medina. Such legitimate objectives include the protection of athlete’s health, functioning event calendars, uniform rules or the sport, and integrity.


3 Examples, International Skating Union, EU General Court (2020); Deutsche Ringer-Liga v. Deutsche Ringer-Bund & United World Wrestling, Nuremberg Court of Appeal (2021); Federation Equestre International v. Belgian Competition Au thority, Brussels Court of Appeals (2016).


4 Case C-415/93 Bosman (1995) ‘…In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results…must be accepted as legitimate.’


5 Case COM/C.2-37.398 UEFA Champions League (2003) ‘Commission understands that it is desirable to maintain a certain balance among the football clubs in a league because it creates better and more exciting football matches…Commission recognises that a cross-subsidisation of funds from richer to poorer clubs may help achieve this.’


6 Case C-49/07 MOTOE (2008). . UEFA is the sole


22 | ADMISI - The Ghost In The Machine | Q2 Edition 2021


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