Super League Faces Potential Legal Fights in U.K., EU and U.S.

Michael McCann
·5 min read

The stunning announcement that 12 of Europe’s leading soccer clubs are planning to launch the Super League—a mid-week competition separate from other leagues—is poised to trigger legal challenges. Oliver Dowden, the U.K. Secretary of State for Culture, Media and Sport, has already stated his government is “examining every option” to address the development.

The 12 clubs, which include Manchester United, Barcelona, Real Madrid and Juventus, are expected to be joined by three additional clubs before an inaugural season. An additional five other clubs would be added after a merit-based qualifying process, for a total of 20 teams.

The announcement has attracted stiff backlash, including from the Premier League and UEFA, the latter of which indicates it might ban Super League clubs from competitions and bar Super League players from playing for their national teams.

The Super League will be structured to some extent like a U.S. professional league. There would be a group of teams that compete during a season, followed by a postseason. The Super League, like U.S. leagues, will also lack relegation, a common feature in soccer leagues. Relegation dictates that teams in the bottom of the standings can be demoted to a lower division (and, conversely, teams that play well can be promoted).

Yet there are important differences between the Super League and U.S. professional leagues that carry legal significance. The major U.S. leagues feature labor agreements struck between owners and players’ associations. These agreements, CBAs, furnish leagues with a limited, but crucial, exemption from antitrust law. Pursuant to what is known as the non-statutory labor exemption, collectively bargained policies allow teams in a U.S. league to restrain how they compete over players’ wages, hours and other working conditions outside the reach of U.S. antitrust law. If major U.S. leagues instead unilaterally imposed salary caps, maximum salaries, draft restrictions and drug-testing schemes and other anti-competitive measures, those policies could trigger antitrust litigation. The leagues, in that scenario, would risk paying treble damages to players. So, instead, they bargain with players’ unions.

With the Super League, it’s unclear to what extent the league will bargain policies with athletes. Likewise, it is unclear how such bargaining would impact the application of competition law, which is similar to antitrust law and generally refers to statutes, policy directives and court rulings that make it illegal to restrain competition. To that end, as explained by Prof. Marek Krzysztof Kolasiński in the Harvard Journal of Sports and Entertainment Law in 2016, “in the EU Member States, the legal status of athletes often does not entitle them to be a part of the formally understood collective bargaining agreements . . . [and] in particular situations athletes are not allowed to bargain collectively.”

In a statement that stresses the college rights of soccer players, FIFPRO, which consists of 65 national member players associations and represents approximately 60,000 soccer players, warns that it is closely monitoring the Super League’s ascension. “This decision leaves players and their unions with many concerns and questions about its impact,” the statement explains, “not only on the fabric and cultural identity of football but also more practically on their careers . . . a new competition undermining [important values] might cause irreparable damage.”

The rise of the Super League could spark other types of legal controversies.

Take contract law litigation. If the formation of the Super League causes clubs, players, sponsors, broadcasters and other parties with contractual obligations to breach their existing or outstanding duties, lawsuits for breach and tortious interference could be brought in U.K., EU and other courts. Contracts that have “specific performance” obligations—obligations that require a party to perform an act—could also be enforced. Further, intellectual property and privacy rights, which are often contemplated in contracts, could be implicated if proprietary information and data are divulged in the course of league formation.

Competition law is likewise relevant. It has been used in recent EU sports legal disputes. For example, in 2019, the European Commission fined Nike €12.5 million for violating competition law. Nike had blocked the selling of licensed merchandise of football clubs and federations to certain countries. Here, the consolidation of teams in one league could be portrayed as diminishing competition in the sport and harming fan interest. In response, the Super League would likely argue that the ability of five teams to join the league based on open competition is consistent with open markets. The Super League could also maintain that its plan will enhance quality of play and therefore enhance the fan and consumer experience.

Competition law also governs the relationship between players and their clubs and restricts the use of so-called “transfer fees,” where a club that acquires a player pays a fee to the club that previously employed the player. In 1995, the European Court of Justice held in the Bosman Case that players generally have a right of free movement from one soccer association to another. A “ban” of a Super League player from another league or national team could spark a competition law challenge. To that point, and as detailed in Law in Sport, two Dutch speed skaters, Mark Tuitert and Niels Kerstholt, recently used competition law to challenge an International Skating Union (ISU) restriction on participating in events that compete with those organized by ISU. Last December, a court ruled in favor of the speed skaters, reasoning that a restriction on earning opportunities unduly interfered with economic rights.

There is also the possibility of litigation in the U.S. As Kurt Badenhausen explains, several of those funding the Super League are American billionaires. To the extent it could be credibly argued that the Super League would harm American consumers’ access to broadcasts and streaming services of matches, U.S. antitrust law might provide potential opportunities for litigants.

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