The proposed European Super League (ESL) has fans and politicians more or less united in condemnation. In response to the 12 football clubs who initially signed up, including the “big six” in England, MPs of all major parties in the UK are lining up to support Uefa and the FA against the new proposals.
The UK government threatens to do whatever it can to wreck the breakaway mid-week league – and several English clubs have already reportedly pulled out. Prime Minister Boris Johnson wants to drop a “legislative bomb”, with talk of changes to football governance and ownership structures. There are also threats around granting visas to overseas players and policing matches.
Meanwhile the UK’s competition authority promises to review the plans closely, and the opposition Labour party is questioning whether an ESL would breach fairness laws. But what options are legally available to the government, and what is likely to happen in practice?
What the authorities can do
There are two possible avenues for a competition referral. If the Competition and Markets Authority (CMA) carries out a domestic investigation under the Competition Act 1998, this essentially seeks to prevent either a monopoly emerging, or market dominance being abused.
The CMA can allow such a move, allow it with stipulations (that reduce the anti-free market effect) or rule it unlawful. The usual turnaround is 40 days, though the CMA has a 15-day “fast-track” procedure. There could then be a more in-depth “phase two” investigation, so timescales are unpredictable.
The second avenue is the EU. The UK may have left the bloc, but the EU Commission could still investigate the ESL along almost identical lines to the CMA, since half of the breakaway clubs are based in member countries. The commission last investigated the negotiation of broadcasting rights through a single representative (Uefa) in 2003 and concluded it did not breach European law.
Labour’s call for an investigation into whether the plans would breach fairness laws is rather vague. Like all UK sports, football is self-regulated. This means sports groupings are private organisations, with limited grounds under which the courts can intervene in how a sports governing body operates.
The same is true of UK human rights laws. In broad terms, under the Human Rights Act 1998, even if something could be identified to have caused harm to an individual or group, the breach needs to be committed by a governmental body, which the ESL fundamentally is not.
The European Court of Human Rights, which has nothing to do with the EU, takes a broader view but a case would normally have to exhaust the route through the domestic courts first. Again, this is a difficult timeline to predict.
The legislative bomb
If the government legislated to change football governance, it would run fundamentally counter to the self-regulation model, and would therefore be explosive. Fifa statutes also prevent overt government interference with domestic football governance as incompatible with membership. It would certainly be ironic if Fifa opposed legislation that would help Uefa in this scenario.
A windfall tax on the clubs concerned and laws about ownership might have more mileage. Germany, where 51% of a club must be owned by the fans, has been mentioned as a possible model. But pushing through such legislation with the pandemic and the Northern Ireland/Brexit issue both still clear and present dangers seems fanciful. And if tax laws were enacted, they would have to be steep enough to make membership of the ESL unviable, which seems a tall order.
Legislating to reduce the visa rights of foreign footballers intending to play in the ESL is possible, but it could trigger human rights cases or claims that the government is acting in restraint of trade.
Withdrawing funding from the policing of football matches has also been mentioned. On the face of it this sounds unreasonable, even spiteful. If games are poorly policed because of reduced government funding and individuals or clubs suffer, a judicial review application might well follow, at the very least.
As for threatening to ban players from Uefa competitions and even from playing for their national teams, this tactic has failed before. In 1978, the cricket world was rocked by the news that Australian media magnate Kerry Packer had signed up group of top players to launch a big-money breakaway competition called World Series Cricket.
England star Tony Greig, who was a lynchpin for the project, was stripped of the national captaincy. The Test and County Cricket Board (TCCB) and International Cricket Council (ICC) then restricted other participants in Packer’s competition from playing in international test matches, which significantly affected the English national squad. Greig and his colleagues challenged the move at the high court and won against the ICC and TCCB, on the grounds that it was an unlawful restraint of trade.
Penalised players could also turn to the Court of Arbitration for Sport in Switzerland, which could have jurisdiction because Uefa, via the FA, is contractually linked to the breakaway clubs. Other cases before this court have included the Brazillian Francelino da Silva Matuzalem, who won in 2012 when money demanded by Uefa for breach of contract was considered disproportionate.
In short, it may therefore be easier to make threats against these clubs than to carry them out. There are also other reasons why Boris Johnson’s early intervention was a mistake. Some from outside sport may be taken aback by the government’s willingness to put time aside to deal with this issue during an international pandemic.
And if the current bluff and bluster dies down and the ESL becomes more or less accepted, like the Professional Darts Corporation (PDC) when it split from the British Darts Organisation (BDO) in 1997, the government may be left with egg on its face. It will certainly be fascinating to see how the story develops from here.
The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
Authors: Jonathan Merritt, Senior Lecturer in Law, De Montfort University