Saturday, January 28

Only the EU can save football from itself | View


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

Details on who will actually have a say in such a process are scant, raising questions about how open and genuine this exercise will be.

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

Meanwhile, some states have expressed an interest in getting involved in the sport. The UK government, home to six of the 12 “Super Leaguers”, announced the release of a “fan-led” review, although the scant details revealed so far suggest a marginal role at best for fans.

None of these initiatives is capable of solving the problems facing football in Europe, for the reasons explained below.

The EU Court of Justice cannot fix this

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

However, for many years, UEFA has allowed its own commercial interests to influence the structure of its competitions, which have been increasingly charged in favor of the interests of the biggest clubs in the biggest countries.

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

The EU Court of Justice has a role to play. But you cannot do more than decide on those particular disputes that come to you through litigation accidents.

The Court does not have a proactive role in setting the agenda. And, of course, its institutional limits are clear: the Court is not a regulator and, in the absence of law, it cannot step in and invent a framework.

State governments limit themselves to regulating their own territories, while Europe’s major soccer competitions do not recognize the fragmenting effect of national laws and borders.

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

The bond that crosses European football

Let’s be realistic. Soccer is threatened. It needs a governance reform. But the change will not come from within the game, not by UEFA or FIFA, not by ad hoc decision-making in Luxembourg, not by one-sided bragging of national capitals.

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

Only cross-border regulation can subject cross-border activity to public scrutiny. There is only one place to look. It is time for the European Union to improve its game and legislate to secure and improve the endangered foundations of European football.

Football reform is necessary to do much more than protect the European sports model from challenges like the Super League.

It is necessary because sports, and football in particular, are some of the most prominent areas of the EU internal market and where the absence of effective regulation allows illicit activities to flourish.

The enormous social interest generated by sports has a corresponding economic impact not only through events, but also through the increasing relevance of related industries, such as sports broadcasting, gambling, games of chance, articles and equipment. sports, etc.

It is telling that some of the companies that have risen lately in the ranking of the world’s top FT 500 companies belong to the sports arena.

Within sport, it is football that has the greatest economic impact. A report by the European Commission measured that it represented 3.5 percent of the EU’s GDP. To put it in perspective, this is more than twice the GDP of agriculture.

Despite their enormous public (social and economic) relevance, sports are, for the most part, regulated by private governance systems.

In fact, this is the reason why most sports organizations are based in Switzerland, which offers them almost complete regulatory autonomy and exemption from supervision. The regulatory equivalent of a tax haven.

National governments could, in theory, assert their jurisdiction over football activities that take place on their territory, but, de facto, they cannot.

Any attempt at regulation by states has been systematically treated by FIFA in the same way: exclusion (or threat of exclusion) from its European and world competitions for all national and club teams in that country. No government wants this.

No other body can improve football

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

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

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

The current role of the EU is the result of the recognition by the Court of Justice that UEFA and FIFA have as commercial a dimension as sports associations.

Therefore, they must comply with the rules of EU law when pursuing or “regulating” the commercially profitable activity of football within their jurisdiction.

UEFA, when adopting statutes, must observe EU law. The transfer system and “Financial Fair Play” were reformed in the shadow of EU law and in consultation with the European Commission.

What is lacking is for EU legislation to provide a clear and comprehensive regulatory framework. The brief crisis in the Super League 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 should happen

The idea is not for the EU to assume the highest regulatory authority for football in Europe. That should stay in UEFA.

The EU should improve governance in football without getting involved in the organizational complexities of competitions. The EU should demand 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, to impose rules of good governance, guaranteeing free and fair elections, representation of all affected interests and effective separation of powers and checks and balances.

Third, establish basic rules for the licensing of football competitions, clubs and other economic agents. From a legal point of view, this can easily be done on the basis of the internal market legal basis provided by the Treaties.

A report by the Parliamentary Assembly of the Council of Europe (written by Anne Brasseur) has recognized that only the EU is in a position to bring some regulatory oversight to football. It is an area in which the EU will not erode national sovereignty, but will help to restore it.

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The time for reform has come

What we have in sport is quite similar to the regulatory challenges posed by big technology and to the more general problems of the rule of law that the European Union is trying to address.

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

The European Union cannot allow the current situation to continue.

As the clamor generated by the Super League demonstrates, soccer fans across Europe are well aware of the deep-seated problems of soccer and are eager to support reform.

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

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

Didn’t the Super League fiasco make UEFA realize that its power to regulate is fragile in the face of aggression and greed from the big clubs, or even FIFA itself? I should have!

It is now known that FIFA, unlike UEFA, is open to the idea of ​​closed leagues. The New York Times reported that the FIFA president had talks with and was tacitly endorsing the Super League organizers, and that he has publicly endorsed a closed league for Africa.

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

Change cannot be made from within. Only the EU can bring about the necessary reforms. May the rule of law also reach 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 president of the FIFA governance committee. Petros C. Mavroidis is a professor of foreign and comparative law at Columbia University and a consultant to the World Trade Organization. Stephen Weatherill is the Jacques Delors Professor of European Law at the University of Oxford.


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