UEFA’s new Authorization Rules for International Club Competitions – a response to the CJEU’s ruling in the Super League case

In June 2024, UEFA adopted its Authorisation Rules governing international football and futsal club competitions, thus responding to the European Court's ruling in the Super League case. The Authorisation Rules lay down conditions for the authorisation by UEFA of alternative club competitions. Noteworthy is the fact that the Rules provide for mandatory arbitration before the Court of Arbitration for Sport ("CAS") to resolve any disagreement but offer the option for an appellant to select Dublin, Ireland as an alternative seat for CAS arbitration, thus enabling potential review of CAS awards by an EU based court, with the possibility of making a preliminary reference to the Court of Justice of the EU ("CJEU").

The background: CJEU’s rulings in Super League and ISU

On 21 December 2023, the CJEU issued several decisions relating to the relationship between EU law and sports law. Most relevantly, in the cases of Super League¹ and ISU², the CJEU ruled that the prior approval and sanctions regimes adopted by FIFA/UEFA and by the International Skating Union ("ISU"), which at the time granted discretionary powers to block the establishment of alternative competitions under threat of sanctions, were inconsistent with EU competition law, notably Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU"). The CJEU held that, generally speaking, the adoption of rules on prior approval of competitions and on participation of clubs and players was legitimate under EU law to achieve the purpose of guaranteeing the homogeneity and coordination of those competitions within an overall match calendar as well as, more broadly, "to promote, in a suitable and effective manner, the holding of sporting competitions based on equal opportunities and merit".³ However, the CJEU required that rules on prior approval and participation, including a related sanctions regime, must be subject to restrictions, obligations and review that are capable of eliminating the risk of abuse of a dominant position. It found that this requires "a framework for substantive criteria and detailed procedural rules for ensuring that they are transparent, objective, precise and non-discriminatory".⁴

In ISU, it reached a similar conclusion but also addressed the role of CAS as the mandatory avenue for challenging any negative decision. The CJEU found that prior authorisation and eligibility rules must be subject to effective judicial review which means that if such rules contain provisions conferring mandatory and exclusive jurisdiction on an arbitration body, the court having jurisdiction to review the awards made by that body may confirm that those awards comply with Articles 101 and 102 TFEU. It also found that it entails "that court's satisfying all the requirements under Article 267 TFEU, so that it is entitled, or, as the case may be, required, to refer a question to the Court of Justice where it considers that a decision of the Court is necessary concerning a matter of EU law raised in a case pending before it".⁵ It thus found that no such effective remedy was available in certain cases before CAS "to the extent that they subject the review of the arbitral awards made by the CAS and the last-instance review of decisions of the ISU to the Tribunal fédéral (Federal Supreme Court), that is to say, a court of a third State"⁶ which cannot refer a question to the CJEU.⁷

UEFA’s Authorisation Rules governing International Club Competitions

On 21 June 2024, UEFA adopted its Authorisation Rules governing international club competition (the "Rules"). The Rules are based on Article 51 of the UEFA Statutes, whereby the organization of a competing club event requires prior approval of UEFA.

According to their preamble, the Rules codify UEFA's existing authorisation practices and procedures as well as how they have been applied. The Rules apply broadly to any football or futsal international club competition played on UEFA's territory but not organized by UEFA as well as to any grouping between UEFA Member Associations, leagues, or clubs formed to organize an international club competition.

The Rules are intended to contribute to the fulfillment of UEFA's statutory objectives and principles, which are achieved, according to Article 3 of the Rules, by allowing UEFA to "ensure that alternative club competitions are played in line with UEFA's statutory objectives and principles, such as the fight against any practice which might jeopardise the integrity of the competitions and the respect of players' health (by taking care that the international match calendar is not overloaded for the latter)", and to "enforce these rules in a proportionate manner (to ensure that the objectives and principles mentioned above are achieved)".

Substantive requirements for authorisation by UEFA of alternative competitions

Under the Rules, an authorisation request must be made 12 months before the anticipated starting date of the competition and contain information relating to (i) administrative and financial criteria; (ii) sporting and technical criteria; (iii) ethical criteria; and (iv) sporting merit criteria. The required information includes, amongst others:

• Confirmation that the clubs concerned can always comply with their obligation to field their strongest team throughout UEFA club competitions and that the release of players for national teams is secured;
• Confirmation that neither a natural nor legal person will exercise control or influence over more than one club participating in the competition; that any person involved in the competition will be prohibited from betting and from unduly influencing or attempting to influence the result of a competition match;
• Putting in place an anti-doping program compliant with the WADA Code and equivalent to the UEFA Anti-Doping Regulations; and
• Commitment to treating all clubs in the same manner and in accordance with the principle of sporting merit and fair play.

In terms of the "sporting merit criteria" the Rules provide amongst others that the Organiser shall submit the following information relating to the proposed International Club Competition:

• confirmation that the international club competition complies with the principles of sporting merit and openness at a national and/or European level;
• confirmation that the clubs concerned will be admitted on the basis of non-discriminatory conditions based upon sporting merit; and
• confirmation that the international club competition is compatible with the European Sports Model (e.g. involving clubs from a diverse number of Member Associations) and does not adversely affect the good functioning of national club competitions and/or international competitions.

More generally, the Rules impose a number of conditions "so that it shall not adversely affect the good functioning of UEFA Champion Club Competitions" and "in order to protect the sporting merit of UEFA Champion Club Competitions, the good functioning of the international calendar as well as the health and safety of players."

UEFA further maintains the right to impose conditions on an authorisation, including, amongst others:

• Authorise the alternative competition on a trial basis for a specified period of time;
• Require a change of the name of the competition;
• Require measures to be taken to protect the principles of sporting merit and openness at a national and European level;
• Require that the competition is restricted to a specific age category;
• Require participating clubs to refrain from signing any exclusivity agreement/undertaking not to take part in any other international club competition of the similar nature for a specified period of time; and
• Require that all Member Associations and affiliated leagues concerned have granted their written approval to the competition.

Breaches of these Rules may be sanctioned by UEFA and result in a warning or monetary fine up to the exclusion of a club from UEFA club competitions for as long as the club participates in an unauthorized international club competition. As per Article 15 of the Rules, the disciplinary decisions adopted by UEFA relating to an unauthorised international club competition are "without prejudice to any disciplinary measures taken by its Member Associations to protect sporting merit at a national level".

A potential challenge to CAS with seat in Dublin, Ireland

Article 16 of the Authorisation Rules provides for exclusive jurisdiction of CAS. It states that "CAS shall primarily apply the UEFA Statutes, rules and regulations and subsidiarily Swiss law". However, in what constitutes a novelty for club football governing rules, Article 16(3) of the Rules deviates from the principle laid down in Article R28 of the CAS Procedural Rules, whereby the seat of CAS and of each Arbitration Panel is Lausanne, Switzerland. Instead, the Rules provide that the party filing the statement of appeal and/or a request for provisional measures shall indicate in its first written submission to CAS whether it accepts Lausanne, Switzerland, as the seat of the arbitration or if the seat of the arbitration shall be in Dublin, Ireland. In the latter case, the Rules provide that UEFA is bound by the choice of Dublin, Ireland, as the seat of the arbitration and UEFA shall confirm its agreement to such seat in its first written reply to CAS. Only in case no seat is indicated in the first written submission to CAS, Article R28 of the CAS Code continues to apply.

Article 16(4) in turn specifies that the decision of CAS shall be deemed to be made at the seat of the arbitration determined as per paragraph (3) and that the CAS award shall mention the seat of arbitration. Article 16(4) further states that the decision of CAS shall be final and binding to the exclusion of the jurisdiction of any ordinary court or any other court of arbitration. However, this is "without prejudice to the right of appeal of any party in accordance with the applicable law of the seat of the arbitration as well as the right to challenge the enforcement or recognition of a CAS award on grounds of public policy (which may include European Union public policy laws) in accordance with any applicable national or European Union procedural laws".⁸

Accordingly, UEFA suggests that organisers of alternative club football competitions have the right to choose between two seats of arbitration at CAS, while R28 of the CAS Procedural Rules rather imposes Lausanne, Switzerland as the seat of arbitration.⁹ The choice of seat determines the procedural framework for the arbitration such as most relevantly also the potential setting aside review of an arbitral award. With Lausanne, Switzerland as the seat of arbitration, motions to set aside the CAS award must be brought before the Swiss Federal Tribunal under Articles 190 and 190a of the Swiss Private International Law Act ("PILA"). By contrast, in Ireland, the High Court of Ireland would review the CAS award pursuant to Article 9(1)(a) of the Irish Arbitration Act 2010 in conjunction with Articles 6 and 34(2) of the UNCITRAL Model Law on International Commercial Arbitration. Given that Ireland is part of the EU, unlike Switzerland, in a potential annulment proceeding before the Irish High Court, EU public policy such as EU competition law will be part of the review. Importantly, the High Court is required to consult the CJEU in relation to questions on the interpretation of the Treaties under Article 267(3) TFEU, and can thus refer the matter to the CJEU for a preliminary ruling, ensuring that the CJEU will have the last say in EU law matters also in the realm of sport. In providing for this option of review by an EU-based court, UEFA has tried to address some of the concerns raised by the CJEU in the ISU case related to the protection of fundamental EU rights and the powers of CAS. The future will tell whether this EU-based seat option is workable in practice and acceptable to interested parties as well as to CAS, and whether it will suffice to address the CJEU's concerns over the mandatory role that CAS plays in the authorisation procedure.

Conclusion

UEFA's new Authorisation Rules provide a comprehensive catalogue of requirements which must be fulfilled by applicants seeking authorisation to establish an alternative club competition in Europe. Whether this catalogue will be considered as a sufficiently transparent, objective, non-discriminatory, and proportionate framework may be tested in the future. Article 16 of the Rules, which provides for Ireland as a potential seat of CAS arbitration, constitutes a novelty in CAS-based international sports arbitration. Only time can tell whether this option suffices to address the CJEU's concerns over CAS opining on EU law matters, and whether other sports governing bodies will follow this example.

_{1 European Court of Justice, Request for a European Court of Justice, Request for a preliminary ruling in the proceedings European Super League Company SL v Fédération internationale de football association (FIFA), Union of European Football Associations (UEFA), C-333/21, Judgment of 21 December 2023 ("Super League"), available here.
2 European Court of Justice, International Skating Union v European Commission, C 124/21 P, Judgment of 21 December 2023 ("ISU"), available here.
3 European Court of Justice, Super League, para. 144 - 145.
4 European Court of Justice, Super League, para. 147.
5 European Court of Justice, ISU, para. 198.
6 European Court of Justice, ISU, para. 191.
7 European Court of Justice, ISU, para. 193-194, 204.
8 Article 16(4) of the Rules.
9 R28 of the CAS Procedural Rules provides as follows: "The seat of CAS and of each Arbitration Panel ("Panel") is Lausanne, Switzerland. However, should circumstances so warrant, and after consultation with all parties, the president of the Panel may decide to hold a hearing in another place and may issue the appropriate directions related to such hearing"}

_{White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.}

_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.}

_{© 2024 White & Case LLP}