It is not only about football — it is about your federation
It is not only about football — it is about your federation
A brief reminder for those who did not read part one. In April 2021 twelve European clubs announced the Super League and retreated within two days, after FIFA and UEFA threatened them with exclusion. In Case C-333/21 the Court of Justice of the EU held, in December 2023, that a federation cannot control entry into a market in which it is itself commercially active, unless its rules are transparent, objective, proportionate and known in advance. In part one I’ve examined precisely what was decided. Here I will show why the same standard binds every international sports federation, not only football.
It is not only about football
What Case C-333/21 means for every international sports federation
The Super League judgment was delivered on 21 December 2023. The Court handed down two others the same day. One concerned figure skating, and for anyone working on federation governance it is the most useful of the three.
Part one of this series examined what the Court actually held in Case C-333/21. Here I want to show why that standard is not a football standard: it applies to any federation that controls the calendar, the ranking points and the sanctions, while at the same time staging its own events. Part three will leave sport behind entirely.
The case that made no headlines
The starting point was not twelve billion-euro clubs but two Dutch speed skaters. They complained to the European Commission about the eligibility rules of the International Skating Union, which penalized athletes taking part in unauthorized events. The Commission found those rules unlawful in 2017; the General Court upheld that finding in 2020; and on 21 December 2023 the Court of Justice dismissed the appeal in Case C-124/21 P.
The reasoning is identical to that in the Super League case: a sports association may adopt rules on the organization of competitions and enforce them by sanctions, but those rules must be subject to a framework ensuring they are transparent, objective, non-discriminatory and proportionate. Otherwise, they make it possible to exclude any competing undertaking from the market, prevent athletes from participating, and deprive audiences of the opportunity to watch.
Football supplied the headlines. Skating supplied the standard.
The part every federation should read: arbitration
One passage of the ISU judgment has no counterpart in the Super League case, and it is in practice the most disruptive. The General Court had accepted that the Commission was wrong to call the federation's arbitration rules into question. The Court of Justice held that in so doing the General Court erred in law.
The principle it sets is clear. Where a federation's rules confer mandatory and exclusive jurisdiction on an arbitral body, the court reviewing the resulting awards must be able, first, to ensure compliance with the public policy provisions of EU law — which include the competition rules — and second, to refer for a preliminary ruling to the Court of Justice. A system of compulsory recourse to the Court of Arbitration for Sport, subject to review only by the Swiss Federal Supreme Court, does not meet those requirements.
The practical consequence for anyone advising a federation or an athlete is straightforward: an arbitration clause in the statutes does not close the door of the national court where rights under Articles 101 and 102 TFEU are at stake. For purely sporting disputes with no economic dimension, the position remains different.
The test in four steps
If one wishes to assess a particular federation, the method emerging from the two judgments is stable.
First, status. Does the federation collect entry and licensing fees, stage championships, sell sponsorship and rights? Then it carries on economic activity and is an undertaking. Because its members — national federations and, through them, clubs and athletes — themselves carry on economic activity, it is simultaneously an association of undertakings.
Second, jurisdiction. A seat in a third country confers no immunity. FIFA and UEFA are associations governed by Swiss law and were assessed ordinarily. What matters is where the effects of the conduct are produced, not where the statutes are registered.
Third, the theory of harm. Two routes run in parallel. Under Article 102, the structural conflict of interest: the regulator competes with those it regulates, and the creation of its own events carrying ranking advantages is a form of self-preferencing. Under Article 101, the federation's decisions are decisions of an association of undertakings, potentially restrictive by object.
Fourth, the criteria. And this is the point most federations underestimate.
The easiest point to prove
The standard does not merely require criteria that are objective and proportionate. It requires criteria that are determined in advance, transparent, and accessible. That dimension usually passes unnoticed, yet it is the easiest to verify.
Take a hypothetical. An international federation cancels the events of its own continental member federation and introduces, mid-season, its own events carrying ranking points for athletes — while its own regulatory framework requires such events to be announced at the start of the season.
To raise the issue, there is no need to prove intent, favoritism, or design. It is enough to place two dates side by side: the one the statutes prescribe and the one on which the announcement was actually made. Proving motive is hard; proving timing is not.
What one actually does
The most instructive precedent is not judicial, and it predates the Super League by eight years. In June 2015 the Global Champions League complained to the Belgian Competition Authority about the “unsanctioned events” rule of the Fédération Équestre Internationale, under which athletes and horses became ineligible for six months if they had taken part in an event outside the official calendar. Within weeks, the authority imposed interim measures suspending the rule, and in April 2016 the Brussels Court of Appeal rejected the federation's challenge.
The lesson is tactical rather than doctrinal: the result came from interim measures, not from a final ruling on the merits. Where the harm is ongoing — a season in progress, a ranking being formed — timing is the most important element in the file.
Where part three begins
● The test is not sporting. It is a test of private regulatory power.
● A non-EU seat and an arbitration clause do not operate as a shield.
● The predictability of the criteria is every federation's most fragile defence.
But if the test is not a sporting one, there is no reason for it to stop at sport. In the third and final part, we will see why the same logic runs through standard-setting bodies, digital platforms and private certification schemes.
Konstantinos Karipidis, Lawyer
LL.M International Commercial Law
ISO 9001 & 19001 Lead Auditor
This is an excerpt from the relevant analyses of the signatory's personal file; it is general information and does not constitute legal advice. The sources used are referred to in the original text.
