The Provincial Court of Madrid has upheld the appeal filed by the Super League against Commercial Court number 17 of Madrid, and dismisses the opposition raised by UEFA.
The three magistrates of the court therefore annul the decision issued on April 20, 2022 by said Court against the precautionary measures ordered by order on April 20, 2021, which are now confirmed.
They also impose on the opposing party the precautionary measures initially adopted the costs derived from the first instance and state that no appeal can be filed against this resolution.
In the sentence, in which UEFA, LaLiga and the RFEF appear as appellees, it is indicated that “it makes no sense to argue that the solution could come from the fact that the members of ESLC (Superliga) could create their own competition completely abandoning alternative competitions , thus facing the unfavorable consequences that could derive from it because, as insinuated on the side of the appellees, it is not possible to pretend to play on both sides. That type of thinking is not consistent with reality and conflicts are not resolved with mere theories” .
“There is already an operating market and the plaintiff only intends to take part in it as a new participant, offering its benefits. The announced purpose of ESLC, as also stated in the partner agreement document, is that the clubs involved could continue to take part in national competitions and doing it during the week in the SUPER LEAGUE, and not in the one organized, at the European level, by UEFA, which seems feasible by renouncing to occupy a place for their country for it, with which no contradiction in his approach,” he adds.
“The SUPERLIGA project would not be incompatible with the fact that the interested clubs could continue to take part in national competitions, which from the point of view of competition law correspond to relevant markets other than international ones at a European level. Likewise, The decision to abandon a competition, when the budgets to take part in it are met, should be free and not imposed according to the criteria of a manager who could incur in arbitrariness from the position of conflict of interest that arises for the monopolist who gives signs that it aspires to maintain its privileged status,” he adds.
“The aggression against free competition occurs from the moment in which from the position of dominance it is trying to influence in a decisive way, through the threat of adoption of sanctioning measures against it, on the subjects that provide the services in the market relevant (clubs and footballers) so that they desist from offering them to the competitor, which can strangle the latter’s competitive initiative”, he specifies.
“Affirming that, outside the UEFA and FIFA ecosystem, an independent professional football competition could be freely created, which can compete with theirs, regardless of their interference, reveals great naivety. Because the defendants have a market power of such power that, from their monopoly position, they are capable of intimidating, as they have done through public statements such as those that have motivated this litigation, any service provider in that field that is represented to be related to the entrepreneur who is proposes to enter into competition with them,” he says.
“The problem is that the risk that exists of arbitrary use by FIFA and UEFA of their disciplinary powers (which allows them to impose serious sanctions – articles 53 and 54 of their Statutes) is not limited to the repercussion of its effects within the competitions they manage, but it can also be used, as has clearly been threatened, to discourage any intention of market operators who are tempted to establish relationships with the competitor. entrepreneur who wishes to enter into competition is attacked by the monopolist who does not want it and uses his power to hinder”, the sentence affirms.
“We consider the possible justification of the conduct of FIFA and UEFA as an attempt to protect the European sports model, ‘prima facie’, as a flimsy excuse”, the resolution points out, adding that “the existence of a diversity of competitions to A level as high as that of elite professional sport, which can present alternative ways of organizing itself, does not necessarily have to compromise the subsistence of sport in other lower strata, which can continue to be promoted from the Member States and even from the European Union” .
“Nor should the irruption of a new one be seen as a problem among the already existing competitions in the professional field, which for reasons of efficiency must be capable of generating by themselves the flow of resources that they may need for their maintenance. Otherwise , the principle of the merit of the benefits that informs the Competition Law would be postponed”, he continues.
“The social repercussion of football and its educational dimension, which can be promoted and defended by the public powers, are not at odds with new competitions entering the market in the professional field, boosting competition, expanding the offer of shows for the public and even enhancing their quality”, he warns.
“It is not necessary to impose competitive restrictions such as those that motivate this litigation to be able to ensure the socio-educational function of the sport of soccer, which can be guaranteed regardless of the emergence of a new professional competition. As can also be achieved in multiple ways that it occurs a flow of financial solidarity, without being able to use the concern that the appearance of a new participant in the market, who surprises with an innovative project, may generate in this regard, as the pretext for the use of anti-competitive maneuvers against him”, he states.
“Although the creation of the new competition may affect the flow of resources generated in the organization of professional football in Europe, which until now only had a single manager, this should not be able to prevent another player in the market from aspiring to compete with him, without this kind of situation being left outside the laws of the market because the monopolist wishes to preserve the old structure and resists facing the changes brought about by social and economic progress, with which other changes may come. new flows of wealth that affect society”, he understands.
“Furthermore, neither can we assume in this precautionary procedure that the profit distribution mechanism used by FIFA and UEFA, which is not marked or controlled by an independent public regulator, necessarily constitutes the best possible for the general interests of the much less than the extreme preservation of the maximization of income according to the interests of those can constitute the exception that makes it possible to justify restrictive behaviors that tend to prevent the entry into the market of alternatives other than the model of business established by them”, he indicates.
It asserts that “FIFA and UEFA cannot justify their anti-competitive behavior as if they were the only custodians of certain European values, especially if this has to serve as an excuse to sustain a monopoly from which they can exclude or hinder the initiative of the one who aspires to be their competitor, because this upsets their structure and business model”.
“In view of the indications that have been made available to us, it does not seem to us that the defendants’ mode of conduct can be justified as protecting the general interests of European football, but rather that what we are noticing is an action that brings together all the characteristics of an unjustifiable abuse by whoever holds a position of dominance. Then the precautionary guardianship must be restored”, expresses the sentence in the legal reasoning section.
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