The European Super League: what can Boris Johnson do about it?

Analysis: The PM has set himself against the elite club plans. Here are some ways they could be challenged

While ministers might be united with fans and opposition parties in pledging to oppose a European Super League (ESL) including six English clubs, precisely how that might happen remains unclear for now – and is by no means straightforward. Here are some possible options:

A change to the law

This would pass easily through parliament, with Labour saying it would back emergency legislation to stop Manchester City, Manchester United, Liverpool, Arsenal, Chelsea and Tottenham breaking away to join the new league.

However, it remains unclear what form a new law would take. One option under consideration is to oblige English football clubs to have the German-style model of ownership by which fans are guaranteed a majority of share ownership, with the only exception in Germany being for people or companies that have invested for 20 or more years continuously.

This would almost certainly stop English clubs joining the new league, with leading German clubs turning down the chance to do so. However, it would also have an impact on the flow of investment into English football, particularly from overseas.

Action under competition rules

This would be based on the argument that the proposed format of the ESL – with 15 “founder” teams guaranteed permanent status and only five clubs taking part on merit each year – amounts to an anti-competitive closed shop. It would be “a theoretical argument to make - but it’s a difficult one”, according to Neil Baylis, a competition lawyer with the law firm Mishcon de Reya.

There is nothing intrinsically illegal about fixed-participant tournaments, for example the Six Nations in rugby union, meaning competition law would only be breached if it could be shown that the ESL was shutting out other teams from significant revenue.

“It’s quite a tough argument to run here,” said Baylis. “It’s not stopping the Premier League from carrying on, and with midweek games it’s deliberately trying not to compete head on with the Saturday afternoon timetable. So it’s far from obvious that everyone [is] going to only want to watch the Super League games.”

If a competition rules route was chosen, this could happen via official regulators such as the UK’s Competition and Markets Authority or its equivalent in countries where other ESL teams are based, or via the courts. With regulatory cases tending to take “months if not years”, the latter seemed more likely, Baylis said.

Complicating matters even further is the fact that ESL teams might themselves have recourse to the same laws if, as threatened, participating teams were thrown out of other competitions, or their players were barred from international tournaments, on the basis that this was an attempt to stifle competition.

The only precedent for any similar cases, Baylis said, had been in far smaller sports – ice skating and showjumping – where organising bodies were challenged for preventing sportspeople from taking part in non-affiliated events.

Removing government support

The culture secretary, Oliver Dowden, raised this idea in a Commons statement, saying the government could look at what it does “to facilitate matches, and facilitate those clubs – and looking at whether we should continue to provide that support”.

He did not specify what this might involve, but it could potentially mean, for example, being less willing to grant work permits for overseas players at UK-based ESL teams.

Restricting TV rights

Another potential lever for government could be controlling or restricting television rights, which would be the key income stream for the new league. But again this appears difficult, given the proliferation of TV and web-based streaming options now available.

One official route on televised sport is to add events to the so-called crown jewels, which under Ofcom regulation have to either be shown live or as highlights on free-to-air TV. This list, however, is rarely updated and very limited. For football, aside from the FA Cup final (and the Scottish Cup final on Scottish TV), it covers only the finals of the World Cup and the Euros.

Fan boycotts

Not under the control of government, obviously, but given the almost unanimously negative response from fans to the idea of the ESL, it is always possible that its undoing is something much less formal: a realisation among teams tempted to sign up that this could tarnish their brands for years, and shed far more money in customer boycotts than is gained via TV rights.

Contributor

Peter Walker Political correspondent

The GuardianTramp

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