Breakaway Leagues

From time to time noises emerge about an interest on the part of some of the leading clubs in European football to abandon the existing pyramid of governance in favour of a new and separate ‘closed’ European league on the American model. In 1998 the so-called ‘Project Gandalf’ was notified to the Commission.[1] [2] [3] [4] [5] It was a plan for a European Football League prepared by Media Partners International. It did not go any further, but periodic press reports suggest a persisting readiness to dabble in the idea.u4 The aim, in short, is to maximize revenue, both by creating a competition that is more lucrative than the existing UEFA-organized arrangements and by removing any obligation to participate in wealth distribution through the solidarity schemes that currently exist. It is unclear how serious these plans are. A plausible motivation is that they are aimed principally at provoking UEFA to pay full attention to the aspirations of the richest clubs, rather than at in fact breaking away. It is no coincidence that UEFA increased the number of clubs admitted to the lucrative knockout stages of the Champions League from twenty-four to thirty-two in 1999, in the shadow of ‘Project Gandalf’.i35

The 2006 Independent European Sport Review—the Arnaut Report—was one of the earliest attempts by UEFA to shape a strategic reliance on EU law to defend its interests. 136 It considers there is no legal means to prevent clubs going their own way, but it adds that they could not then ‘cherry pick’ by choosing to continue to play in UEFA competitions as it suited them.i37 It has already been noted in section 10.4 that governing bodies that use their regulatory power to suppress the emergence of competing competitions are likely to violate EU law. The problem is the conflict of interest that is involved, which in terms of EU law is translated into suspicion of an abuse prohibited by Article 102 TFEU. However, once a viable competing competition has emerged and established itself, it seems improbable that the clubs that have chosen to break away could claim that a refusal of access to competitions organized by the entity which they have chosen to leave could violate

EU law.i38

However, there is weight to the argument that it would be incompatible with EU law to establish a breakaway League in the first place. Much would depend on the precise structure envisaged: it is a new league operating on the basis of a closed structure that would be most vulnerable.^9 Promotion and relegation are properly

139 See Parrish and Miettinen (n 93) 211—15; C Hellenthal, Zulassigkeit einer supranationalen Fussball-Europaliga nach den Bestimmungen des europaischen Wettbewerbrechts (Peter Lang 2000).

treated as devices that improve the competitive structure of the market[6] [7] [8] and to abandon them in favour of a structure that walls off existing participants from challenge and sunders completely any ties of vertical solidarity within the sport is open to attack as a violation of EU competition law. The objection in law would be strengthened by reliance on Article 165 TFEU, which asserts a need for openness in European sport.

The intrigue is that it would be UEFA that would mount such an argument in order to secure protection of its existing model of governance and, most of all, its premier club competition, the Champions League. So, in contrast to the majority of the issues examined in this book, sport governing bodies would be relying on EU law to defend themselves from attack, rather than acting as the parties subject to an attack sourced in EU law. UEFA’s increasing readiness to cooperate with the Commission has been noted on several occasions in this book, including in relation to the transfer system (Chapter 9), and FFP is the most obvious current example (section 10.9). There is no doubt that UEFA would be delighted were the Commission to express itself hostile to the pretensions of the would-be breakaway clubs.

  • [1] Case IV/37.400 [1999] OJ C70/5. See K Pijetlovic, EU Sports Law and Breakaway Leagues inFootball (TMC Asser 2015) ch 3.
  • [2] eg ‘Europe’s Top Football Teams in Plot to Go It Alone’ The Guardian (London, 18 March 2006).
  • [3] ‘The threat of a breakaway football super league in Europe was averted yesterday when 14 ofthe continent’s biggest clubs agreed to accept a revamp of the elite Champions League competition byUEFA ...’, ‘Clubs Reject Breakaway League Plan’ Financial Times (London, 18 November 1998) 2.
  • [4] 136 Its failings in this regard are explained in Ch 5.5. A copy is held at accessed 29 November 2016.
  • [5] Arnaut Report, paras 3.30—3.32. 138 cf Pijetlovic (n 133) ch 7.
  • [6] eg S Ross and S Szymanski, ‘Open Competition in League Sports’ (2002) Wisconsin LawReview 625.
  • [7] COM (2007) 391, 11 July 2007, available via accessed 29 November 2016.
  • [8] COM (2011) 12, 18 January 2011 accessed 29 November 2016.
 
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