Sport Meets Antitrust: A spectacle for spectators?

This article sheds light on this question from the point of view of the spectators. In sports, spectators, i.e. the fans, are the relevant end consumers – and consumers are the ones the European Commission (“Commission”) primarily focuses on in its competition law enforcement. Recently, these consumers have launched a European Citizens’ Initiative called “Win it on the Pitch”. What is that about? We will take a look at (B.) and comment on the initiative (C.), but before we do we have to briefly reflect on what has happened so far (A.).

What happened so far

In April 2021, twelve European top football clubs announced their intention to launch a competition to rival the UEFA Champions League. The announcement came literally overnight, but the plans behind this project, the ESL, were years in the making.

What was their idea? The top clubs wanted to create a separate league and operate it independently, without the associations. The aspiration was to offer top matches on a weekly basis. All this, of course, would have been accompanied by the participating clubs generating significantly higher revenues than in the past.

Only a few days after the highly controversial announcement, nine of the twelve clubs withdrew – mainly due to the strong protests of the fans (and some political pressure). Three clubs persisted in seeking to introduce the ESL and initiated legal proceedings in Madrid. In May 2021, the Madrid court handling the ESL case asked the CJEU for a preliminary ruling on the question of whether the football associations’ suppression of competing football leagues is in line with EU competition law (for the CJEU case, see here). Several EU Member States and the Commission then submitted their opinions to the CJEU. The tendency was apparently against ESL, pro UEFA. And in November 2021, the Council of the EU recapped the most important features of the European Sport Model, many of which appear contrary to the ESL (we have covered this in an earlier post, see here). Therefore, as it may be understood, it has generally sided with the associations.

FIFA recently responded to the clubs' allegations of market abuse and reportedly denied holding a monopoly position. The world governing body told the EU judges that neither it nor UEFA control the sport. It is quoted as follows: “Neither FIFA nor UEFA has been granted any special or exclusive rights by any state.” Whether and to what extent this argument will convince the CJEU remains to be seen.

The initiative: Win it on the pitch

So while the clubs and associations involved can present their views in the proceedings, the fans, who are at the heart of the sport, lack the opportunities to make their voices heard; they cannot join the proceedings. Because the fans obviously still want to have a say, they have now made use of another channel: EU citizens have registered a European Citizens’ Initiative.

Introduced in 2007, the European Citizens' Initiative is a mechanism for strengthening direct democracy in the EU. It enables EU citizens to request the Commission, which holds the right of initiative, to propose a legal act. The conditions are that (i) the initiative concerns a matter that falls within the EU’s competence, (ii) at least one million citizens join this initiative and (iii) these citizens represent at least seven EU Member States (subject to certain quorums). If an initiative reaches one million signatures, the Commission can decide how to proceed.

In their “Win it on the Pitch” initiative, the citizens “are calling on the Council to adopt a Recommendation providing an EU framework and guidelines for member state action” in order to: “Protect the model of football in Europe”; “Recognise the social value of sport in European society” and “the specific nature of sport in EU Competition rules”; and “Strengthen EU vision and long-term policy on the future & governance of European sport”.

For background, the citizens state that “[t]he super league fiasco proved that European sport is on the brink of catastrophe” and that “[d]ecades of mismanagement has left countless clubs and competitions vulnerable to predatory takeovers by private individuals and groups whose only aim is to make money.” As “[s]port is a social good that belongs to everyone”, the citizens emphasise, “it is crucial that the institutions of the [EU], Member States, and politicians work with fans and concerned citizens to safeguard football and other sports across the continent.”

They go on to specify that there is a need for “a clear, practical, and long-term plan of action at the European level”, and they stress: “Such a plan must be devised and implemented swiftly to deter further breakaway attempts, as well as continued toxic investment in and asset stripping of clubs and communities. Failure to do so will no doubt embolden the usual suspects. Indeed, it will not be long until they renew their efforts to replace the European model of sport with a cartel model that preserves and promotes their own narrow competitive and economic interests at the expense of the wider game and European society.”

Their message is clear: “[I]t is time to ensure that everybody must Win It On The Pitch: protect European sport and recognise its contribution to European society.”

The role of spectators and the role of competition law

In short, European football is on the brink of change, and the fans seem to want the sport to be protected and therefore – to put it simply – everything to stay the same. So far so good. But what can be the role of competition law in all of that?

Competition law safeguards effective competition, because only such competition can bring optimal results: More choice at lower prices, innovation, progress – ultimately in favour of the end consumer. Should the end consumer therefore be the one to decide whether something like the ESL should be created? From the perspective of competition law: No and yes.

“No”, because it is not for the citizens to enforce competition law. There are democratically legitimised institutions in the EU for that. And these ensure that the markets remain open. But “remaining open” also means that the tried and tested can change – new market participants can enter; old and dominant ones can disappear.

And that leads us to the “Yes”: Ultimately, consumers (the fans) decide through their market behaviour which offers will last and which will leave the market due to lack of demand. If customers do not want to consume Super Leagues – and this seems to be the case against the background of the protests and the “Win it on the Pitch” initiative –, such leagues will never become established in the long run.

Either way, to the extent it is applicable, it is the task of competition law to keep markets open. And generally, competition law is applicable in the sports sector. So competition law must and will help determine the future of European football, which not only carries social values, but has long been heavily commercialised. It will be something to watch.

Authored by Christian Ritz, Dennis Cukurov and Florian von Schreitter.