Mavroidis (Columbia University): UEFA's sanctions cannot protect something that does not exist"
Petros C. Mavroidis is the Edwin B. Parker Professor of Foreign and Comparative Law at Columbia Law School in New York. He also teaches at the University of Neuchatel. He has taught courses in International Commercial Law, European Union Law and Corruption in Sport. He is the author of numerous publications on international trade law, in which field he is an undisputed authority. In the past, he was an arbitrator at the CAS and part of the UEFA Financial Fair Play commission. He is legal adviser to the WTO. His latest publication, in collaboration with colleague Damien J Neven "Eyes on the Ball. The Super-League Litigation before the CJEU" is available here: https://papers.ssrn.com/sol3/
Professor Mavroidis, we read your latest paper "Eyes on the ball", dealing with the Superlega case which will soon be judged by the Court of Justice of the European Union. First, can you clarify for our readers what will be the actual issue on which the Court will rule?
This is maybe the most important decision that the Court has issued since its Bosman jurisprudence. The court has been effectively requested to decide whether UEFA detains the monopoly of organizing pan-European football competitions, or not.
The thesis proposed by you and your colleague Damien J. Neven is at odds with the opinion expressed by Attorney General Rantos. Rantos argues that UEFA's prior authorization scheme does not constitute a "restriction by object" of competition within the EU. Can you better illustrate the concept and explain your different position?
Restriction by object in EU antitrust means that a measure is quite likely to produce anti-competitive effects. In this case the court will not inquire into whether the measure has actually produced similar effects. If it satisfies itself that this will be the case in all likelihood because of the nature of the measure, it will find it inconsistent with EU law, even though it has not examined it in practice (in real life). Rantos thinks the absence of approval criteria by UEFA is not a restriction by object. We think the opposite, and we believe that our interpretation is in line with past case law of the court.
Rantos also believes that UEFA's system of sanctions against runaway clubs and players is adequate and proportionate to achieve a legitimate objective: to protect the European Sports Model within the Union. You disagree with that, for several reasons. Can you explain them?
We believe that there is no European Sports Model. In fact, in basketball (Euroleague) clubs participate by invitation, and not on sporting merit. The European Union has no competence to decide on what the European Sports Model, and UEFA has no right to play this role either. As a result, the sanctions cannot protect something that does not exist.
The position of First Advocate General Szpunar in the Antwerp case was different from that of Rantos: UEFA is considered as an entity with its own economic interest and its dual function of regulator and organizer is considered in its critical aspects. Do you share Szpunar's view?
In fact, we are very close to what AG Szpunar decided in this case. Like him, we believe that it is not for UEFA to act upon the missing European Sports Model, but it is up to the European institutions to act upon it. As long as they have not intervened, UEFA has to take the back seat and wait for their pronouncement.
There is still no date for the Court's ruling, despite numerous media suggested the last months of 2022 as the most probable timeline. We are now talking about next July. Is this a reasonable scenario and what has happened in the meantime that made it necessary to delay the judgment?
I think we risk waiting until September. This is not an easy case. The consequences are quite important. The court is smart enough to understand all this, and am sure they will think seriously the repercussions before drafting the award.
The EU governments have lined up almost unanimously united alongside UEFA. During the debate, Politico.eu wrote, only Germany expressed a more nuanced position. But Germany is not just Germany, it is the strongest country in the Union. Can we expect some "backtracking" from national governments before the pronouncement?
To me it is unclear what will happen between now and the day the decision is issued. Totally unclear. I think though, if I had to bet, that no one will attempt to preempt the result.
Professor, you know UEFA well, having collaborated in the past in the Financial Fair Play commission. You resigned from your role at UEFA in 2019, after the PSG case on their disputed violations. Can you tell us how that matter went?
In the PSG dispute, UEFA decided at the end to punish PSG for violating the rules of FFP. PSG appealed before the CAS where it managed to reverse the final outcome based on a technicality, a procedural issue, but not on substance.
The European Union passed a new law on "foreign" state aid. From July, the Commission will examine them. In your opinion, will attention be paid to the case of Qatar and PSG? Will it also affect clubs operating in the UK but affiliated with UEFA?
If this law is applied to football teams, the Commission will have to show that the competitive position of Newcastle, or Manchester City, or PSG or Braga has improved as a result of foreign aid. It will be interesting to see how it will apply to the world of football, but at this stage it is wiser not to say much until we see the first case. Maybe another European club, say Fiorentina or Juventus, will complain and then we will know better how the European Union authorities understand how this law applies to the world of football.
What is your opinion on state-controlled clubs? Do they distort competition? Is there a possible solution?
Yes. Not only they distort competition, but also they lead to misallocation of resources. There is no legislative gap. The rules are adequate. And the Commission of the European Union in the past has shown that it is willing to enforce them.
Back to UEFA. Between April and May, La Gazzetta dello Sport published articles, quoting sources inside UEFA, never denied, pointing out UEFA's intention to punish Juventus for the "plusvalenze" case, in case the Turin club does not abandon the Super League, with a public statement. Forgive my frankness: is there a real division between the executive power and the judiciary within UEFA?
All UEFA decisions are appealable. Now the question is where to appeal. UEFA requests from its members to always appeal before CAS in Lausanne. But some questions involve very specific knowledge of European Union law. And even if some CAS arbitrators possess this knowledge, it is quite clear by now that the Court in Luxembourg will not recognize the CAS case law. So irrespective of independence between legislative and judiciary within UEFA, the key question is what is the best forum to appeal the final UEFA decision.
UEFA Executive Committee: Sandor Csanyi, who until recently combined the positions of UEFA and FIFA vice-president, is one of the most powerful bankers in Eastern Europe, close to Orban and the Russian government. Aleksandr Dyukov, Russian member of the UEFA Board, is chairman of Gazprom Neft. The candidate with the most votes in the last UEFA elections was Armand Duka, twenty-year president of one of the most controversial federations, the Albanian one, and on the board of directors of the Csanyi bank (OTP) in Albania. Nasser al Khelaifi also sitting on the UEFA board, is expression of the Qatari government and is at the center of an investigation by the French judicial authorities. We could go on for much longer, but... are we the only ones who suspect that UEFA is actually an enemy of European values?
In have no idea how people are elected at UEFA, and no idea who the candidates are. To me what matters most is for EU members to discuss between them, under the aegis of the Commission of the EU, and try to always adopt one unanimous position within UEFA. They are 27, almost 50% of the total membership.
The only truly reforming candidate, Norwegian Lise Klaveness was rejected in the last UEFA board elections that rewarded long-serving bureaucrats. Speaking of "openness", as one of the sport's core values, there is only one woman on the UEFA board, which also governs women's football. Can an institution that intends to "govern" European football receive a blank delegation from the EU, without respecting its fundamental values?
This is not acceptable. Sexism of course, is not the privilege of the world of football. Unfortunately, we still live in sexist societies. And the examples of very worthy women are so many, that sex should never play a role in appointments.
Are you supporting any football team?
I have always been a fan of Fiorentina. And would like to see someone like Miguel Maduro become President of UEFA or FIFA.
