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The European Sports Model As A Vindication For UEFA? Why The ECJ Is Likely To Deviate From Advocate General’s Opinion In The European Super League Case

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Friday, 12 May 2023 By Prof. Dr. Moritz Lorenz, Maike Herrlein

“The Super League is dead, long live the Super League” – that seems to be the credo of the organisers of a possible Super League, who published their latest concept on 9 February 2023.[1] Not only the sports lawyers have already drawn conclusions from the Advocate General’s Opinion published on 15 December 2022, but also the organisers of the Super League, who are now presenting a concept that deviates in key points from the format originally published in April 2021. Hence, the issue seems to be far from off the table.

The Advocate General takes the view that the requirement under the UEFA statutes for new football tournaments in Europe to obtain prior approval from UEFA are reconcilable with Art. 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) as they are justified by legitimate objectives. The opinion concludes that UEFA may impose sanctions against clubs which participate in tournaments which were not approved by UEFA. The exclusion of players, however, is seen as disproportionate and therefore not justified.

Efforts by sports federations to prevent the emergence of competing federations and competitions have given rise to a series of legal disputes in recent years. The core point of these disputes is the question whether sports-related reasons justify that one sports federation intervenes against the existence or the foundation of competing organisations. From a competition law point of view, it is settled case law that a dominant undertaking must not prevent the occurrence of smaller rivals. It is doubtful that there are valid reasons to deviate from this principle in the case of sports associations.

The EU courts in most cases follow the legal assessment in the Advocate General’s Opinion. In the Super League case, however, in the authors’ opinion, the Opinion deviates in several aspects from core competition law principles. That is why the ECJ may take a different approach.

In this article, the authors will summarize the reasons why, in their opinion, the Court will probably reach different conclusions.

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Written by

Prof. Dr. Moritz Lorenz

Prof. Dr. Moritz Lorenz

Moritz Lorenz is a partner in the Berlin office of Arnecke Sibeth Dabelstein. He is the head of the firm’s competition and State aid practice. He advises clients on all aspects of EU and German competition law, in particular on merger control, in connection with cartel infringements, on dominance issues, distribution systems, cooperations and licences as well as on follow-on damage claims. He develops compliance systems for companies of various industries and has conducted internal investigations into compliance incidents in Europe, China and Saudi-Arabia. He also has broad experience with EU state aid matters and advises both governmental bodies and undertakings and represents them in national and EU courts.

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Maike Herrlein

Maike Herrlein

Maike Herrlein is a trainee lawyer at Arnecke Sibeth Dabelstein working particularly on legal issues in sports. She holds a law degree from the University of Freiburg and a Master of Laws in sports law from the University of Bayreuth. During her Master's studies, Maike focused on competition law, data protection law and human rights issues in sports. In addition to her legal education, Maike holds a coaching license in swimming and has worked as a successful youth coach in the past.

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