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Only the EU can save football from itself | View

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By Joseph Weiler, Miguel Poiares Maduro, Petros C. Mavroidis and Steve Weatherill
Opinions expressed in View articles are solely those of the authors.

On 21 May, UEFA announced the launch of a Convention on the Future of European Football. It is designed to bring together the representatives of national football associations, leagues, clubs, players, coaches, fans and agents to discuss long-term policy and governance reforms.

The details on who will actually have a voice in such a process are scarce, raising doubts on how open and genuine this exercise will be.

Just ten days earlier a court in Madrid had asked the Court of Justice of the EU to answer questions about the compatibility with EU law of the action taken (and still to be taken) by UEFA against clubs involved in the aborted Super League.

Meanwhile, some states have expressed an interest in intervening in the sport. The government of the UK, home to six of the 12 "Super Leaguers", announced the launch of a "fan-led" review, although the scant detail so far unveiled suggests a marginal role at best for fans.

None of these initiatives is capable of solving the problems football in Europe faces, for the reasons we explain the following.

The EU Court of Justice can't fix this

UEFA reacted to the Super League by insisting that it, as the game's regulator, would defend stakeholders from the assault on tradition.

Yet for many years now UEFA has allowed its own commercial interests to influence the structure of its competitions, which have become increasingly loaded in favour of the interests of the biggest clubs in the biggest countries.

UEFA can be part of the solution - but right now it is part of the problem, as it has not emerged as an honest broker across divergent interests.

Change won't be delivered from within the game, nor by UEFA or FIFA, nor by ad hoc decision-making in Luxembourg, nor the unilateral swagger of national capitals.

The EU's Court of Justice has a role to play. But it can do no more than decide on those particular disputes that reach it through accidents of litigation.

The Court has no proactive agenda-setting role. And of course, its institutional limits are clear: the Court is no regulator, and in the absence of law, it cannot step in and invent a framework.

State governments are limited to regulating their own territories, whereas Europe's premier football competitions do not recognise the fragmenting effect of national borders and laws.

Polyphony is cacophony, for all practical purposes when what is required is harmonious action.

The bind European football is in

Let us be realistic. Football is under threat. It needs governance reform. But change won't be delivered from within the game, nor by UEFA or FIFA, nor by ad hoc decision-making in Luxembourg, nor the unilateral swagger of national capitals.

Football, a cross-border activity, needs an independent source of regulatory reform which is itself cross-border in aspiration and structure.

Only cross-border regulation can bring cross-border activity under public scrutiny. There is only one place to look. It is time for the European Union to up its game, and to legislate in order to secure and improve the imperilled foundations of European football.

Reforming football is necessary to do much more than simply protect the European sports model from challenges such as the Super League.

It is necessary because sports, and football in particular, are some of the most high-profile areas of the EU internal market, and one in which the absence of any effective regulation permits unlawful activities to flourish.

The huge social interest that sports generate has a corresponding economic impact through not just the events, but the growing relevance of related industries, such as sports broadcasting, gaming, gambling, sports merchandise and gear, and so on.

It is revealing that some of the companies that have lately moved up the ranking of the FT 500 top global companies are from the sports domain.

Luca Bruno/AP
A biker rides past an Inter Milan merchandise store in Milan, Italy, in April 2021Luca Bruno/AP

Within sport, it is football that has the greatest economic impact. A European Commission report measured it as accounting for 3.5 per cent of EU GDP. To put it in perspective, this is more than twice the GDP from agriculture.

In spite of its huge public (social and economic) relevance sports are, for the most part, regulated by private systems of governance.

In fact, this is why most sports organisations have their seats in Switzerland, which offers them almost total regulatory autonomy and exemption from oversight. The regulatory equivalent of a tax haven.

National governments could, in theory, assert jurisdiction over the football activities taking place in their territory but, de facto, they can’t.

Any regulatory attempts by states have consistently been dealt with by FIFA in the same way: exclusion (or threat of exclusion) from its European and world competitions for all the national and club teams of that country. No government wants this.

No other body can reshape football for the better

The EU - and only the EU - is in a position to regulate football (and sports in general). FIFA and UEFA can’t afford to exclude all the EU Member States teams from their competitions.

This is the reason why, since the Bosman case, UEFA and FIFA have had to adjust some of their rules and practices to meet the requirements imposed on them by EU law, as interpreted and applied by the European Commission and the European Court of Justice.

This is an area where a "Brussels effect" can also be decisive: such standards are in practice adopted as the norm throughout Europe, not just the EU, and feasibly beyond.

The existing EU role results from the recognition by the Court of Justice that UEFA and FIFA have as much of a commercial dimension as they are sports associations.

Therefore, they must meet EU law standards when they pursue or "regulate" the commercially lucrative activity of football within their jurisdiction.

UEFA, when it adopts statutes, must observe EU law. The transfer system and "Financial Fair Play" were both reshaped in the shadow of EU law and in consultation with the European Commission.

What is missing is for EU law to offer a clear, comprehensive regulatory framework. The brief Super League crisis revealed both the lack of legal clarity and the fragility of the current model of European football. The EU - and only the EU - can do better.

What needs to happen

The idea isn't that the EU assume ultimate regulatory authority for football in Europe. That should remain with UEFA.

The EU should improve governance in football without itself getting involved in the organisational intricacies of competitions. The EU should require that leagues be open - that is, sustained by the fresh blood of promotion and relegation - and competitive, not distorted by financial doping.

The EU should do three things. First, impose a separation of regulatory and economic functions within UEFA.

Second, impose good governance standards, guaranteeing free and fair elections, representation of all affected interests, and effective separation of powers and checks and balances.

Third, establish basic standards for the licensing of competitions, clubs and other football economic actors. Legally, this can easily be done under the internal market legal basis provided by the Treaties.

A report by the Council of Europe Parliamentary Assembly (authored by Anne Brasseur) has recognised that only the EU is in the position to bring some regulatory oversight to football. It is an area where the EU will not erode national sovereignty, but instead help to reinstate it.

The time has come for reform

What we have in sport is rather similar to the regulatory challenges brought by Big Tech, and to the wider rule of law problems that the European Union is trying to tackle.

Football is probably the best example of the absence of the rule of law in a private system stretching over a substantial part of the internal market.

The European Union cannot allow the current state of affairs to go on.

Regulatory oversight is an area where the EU will not erode national sovereignty, but instead help to reinstate it.

As the outcry generated by the Super League demonstrates, football fans throughout Europe are well aware of football’s deeply rooted problems and eager to support reform.

And citizens, in general, are increasingly aware of the need to do something as they witness multiplying scandals: from corruption and match-fixing to money laundering and tax evasion.

We also believe there is a substantial constituency in European football itself that understands that the time has come for reform.

Peter Powell/AP
A banner criticises the aborted Super League at Elland Road in Leeds, England, April 2021Peter Powell/AP

Didn't the Super League fiasco jolt UEFA into realising its power to regulate is fragile in the face of the aggression and avarice of big clubs, or even FIFA itself? It should have done!

It is now known that FIFA is, contrary to UEFA, open to the idea of closed leagues. The New York Times has reported the FIFA president held talks with the organisers of the Super League and was tacitly backing it, and he has publicly supported a closed league for Africa.

UEFA is subject to FIFA. EU regulation would also serve to protect the fundamental aspects of the European football model from intrusion by FIFA.

Change can’t be done from within. It is only the EU that can generate the needed reforms. Let the rule of law come also to sport!

Joseph Weiler is a former president of the European University Institute. Miguel Poiares Maduro is a former director of the School of Transnational Governance and former chair of FIFA's governance committee. Petros C. Mavroidis is a professor of foreign and comparative law at Columbia University and advisor to the World Trade Organisation. Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University.