by Guido Vaciago
And if Juventus’ exit from the Super League, not yet official but communicated by Juventus to Real Madrid and Barcelona in a letter, was not a good affair for UEFA? Yes, it’s true: the new Juventus management has renounced what Aleksander Ceferin had long demanded and was rather direct about, even through statements from members of his board. But what initially appears as a political success that strengthens the boss of European football could have an unpleasant boomerang effect for UEFA at the European Court of Justice, which may consider the so-called “Juvexit” as the result of strong pressure, if not moral blackmail, from the European institution. This would confirm the abuse of dominant position that UEFA is accused of, and which the Court will have to rule on, probably in September. This is explained in detail in a document by Robby Houben, a professor at the University of Antwerp (where he teaches courses on “professionalization of football” and “good corporate governance”) and a consultant to the European Parliament on the fiscal treatment of professional football. The text, published in recent days, summarizes the state of the UEFA-Super League issue pending the Court’s judgment and analyzes the scenario before the judges. The situation is complex because, in fact, two Advocate Generals have expressed their views on the matter, after the case was presented less than a year ago. The process of the European Court of Justice, which issues binding opinions for all EU countries, consists of three steps: the case is presented by all interested parties who express their positions in court and through written memoranda; the Advocate General summarizes this debate, giving his opinion, which can serve as guidance to the judges, who, however, have no obligation to follow it (usually it is heard with percentages varying between 60 and 75%); in the third and final step, the judges rule, and their decision is definitive. And here’s what happened in the case of the Super League: on December 15, 2022, Advocate General Athanasios Rantos found no reason to sanction UEFA for its alleged monopoly or abuse of dominant position (in violation of Articles 101 and 102 of the Treaty of the European Union, which guarantee free competition). On the contrary, Rantos saw in this private entity based in Switzerland the “guardians” who protect a theoretical European model of sport, a constitutional principle of the EU, according to the Advocate General. At that moment, UEFA (and FIFA, which is also involved) rightly claimed victory because, according to Rantos, a Super League can be established, but UEFA has the right to sanction the clubs participating in it and exclude them from all competitions (including domestic leagues, as the federations are affiliated with UEFA). It should be noted that Rantos’s opinion is not binding on the judges, but it remains heavily biased in favor of UEFA. However, the judges have not yet ruled, and their opinion was expected in March. This is because, in the meantime, another question has been submitted to the Court, which will surely influence the Super League judgment. This is the Antwerp case, involving a Belgian club that has raised several issues about free competition in football and the free movement of workers (in this case, players), essentially arguing that the UEFA and Belgian Football Federation’s rules limit the growth of clubs, particularly Antwerp, by not putting them on an equal footing with European clubs competing in other EU countries. The Antwerp case, discussed in March 2023, was dealt with by Advocate General Maciej Szpunar, not just any colleague of Rantos but technically his superior. Szpunar is, in fact, the “first Advocate General” of the European Court of Justice. And despite starting from a different perspective (the overly restrictive rules of the Belgian Federation and UEFA, according to Antwerp), he ended up addressing the same issue as the Super League question: Is UEFA a monopolist? Does it abuse a dominant position? Does it embody conflicts of interest contrary to European laws? Szpunar’s answer is essentially yes. The opinion of the first Advocate General, deposited on March 9, openly contradicts Rantos’s opinion, and for the habits of the Court, it is quite remarkable, and it opens a darker scenario for UEFA. In his opinion, Advocate Szpunar emphasizes that the European Treaties do not grant any privilege to international and national football federations. Furthermore, European institutions cannot “outsource” their functions to anyone, including UEFA, which is a private entity. Therefore, UEFA cannot be considered a watchdog for any “model of sport,” including the European model. If, based on the Treaty, someone needs to oversee, it can only be the European Union. Furthermore, Szpunar acknowledges that national and international federations are private entities subject to inevitable conflicts of interest, as they pursue economic objectives and, at the same time, claim the role of regulator: too much power in one entity that would be “irrational if it tried to pursue public objectives that directly contradict its commercial interests.” And with this statement, he gets to the heart of the problem raised by the Super League. At this point, it is clear that the Super League case and the Antwerp case will be consolidated, that the two judgments will be issued on the same day, and, above all, they will be consistent with each other. It cannot be known which of the two Advocate Generals will be given greater consideration, but attention should be paid to the Juvexit case because it will also impact the evaluation. Professor Houben emphasizes in his pamphlet that European media report “pressure received by Juventus from UEFA to leave the Super League.” On the other hand, it has been rather explicitly stated by members of UEFA’s board that “if Juventus had abandoned the process, it would have been treated less severely in proceedings for the violations contested by sports justice because relations between Juventus and UEFA are not excellent due to the Super League issue.” These types of pressures, seen in light of Szpunar’s opinion, indicate conflicts of interest and a mixing of judicial and executive powers, further demonstrating a casual use of UEFA’s monopoly position. The fact that Juventus gave in also strengthens Professor Houben’s theory that UEFA is ready to use any means to prevent an alternative competition from arising, even violating laws for free competition. Therefore, if the judges were to take this viewpoint into account, Juvexit would prove to be a striking Trojan horse for UEFA.
