The football judgment that platform lawyers will be reading
Why Case C-333/21 is not a sports law case
Take football out of Case C-333/21 and nothing is missing. What remains is a question commercial law meets in dozens of markets, most of which have nothing to do with stadiums: who controls the body that controls access.
The first two parts examined what the Court of Justice held in December 2023 — that a federation cannot decide who enters a market in which it is itself commercially active, except on criteria that are transparent, objective, proportionate and known in advance — and why the same applies to every international sports federation. In this final part we leave sport behind.
The common pattern
The problem the Court identified is not dominance. It is the vertical integration of the regulatory and the commercial function in the same person: one body writes the rules of entry to a market and at the same time competes with those seeking to enter.
Put that way, the pattern appears everywhere. The standard-setting body that defines the standard and holds the patents implementing it. The certification body that assesses conformity in a market where it also sells advisory services. The professional association that decides who may practise. The platform that ranks third-party products and sells its own.
Standards, certification, professional bodies
In these fields the case law is old — the Wouters line concerned precisely the rules of a professional body. What the Super League judgment adds is severity: once a restriction is characterised as being by object, invoking legitimate objectives no longer suffices to place it outside Article 101.
For standard-setting bodies the consequence is immediate. The process of selecting a standard, the terms of access to standard-essential patents and FRAND commitments are assessed by the same criteria: determined in advance, transparent, non-discriminatory, proportionate, and open to review. The same holds for conformity assessment bodies, where a refusal to certify amounts in practice to a refusal of market access.
Digital gatekeepers: one problem, two instruments
On 10 September 2024, in Case C-48/22 P, the Court upheld the €2.4 billion fine imposed on Google for displaying its own comparison-shopping service more favourably than competing ones. That ruling recognised self-preferencing as an autonomous form of abuse, without requiring the strict Bronner criteria on essential facilities to be met.
The structure of the reasoning is the same as in the Super League case: a vertically integrated body, control of access, favourable treatment of its own activity. Only the instrument differs. In digital markets the legislature did not wait for the case law: Article 6(5) of the Digital Markets Act prohibits self-preferencing ex ante and horizontally, as a statutory obligation.
Here lies the most interesting asymmetry. Digital markets have both instruments. Sport has only the first: there is no European sports regulator, so enforcement is judicial, after the fact and expensive — which systematically favours whoever can afford to reach Luxembourg.
Private rulebooks with public guarantees
Read Regulation 2019/1150 on fairness and transparency for business users of online platforms immediately after the Super League judgment, and the resemblance is striking. Terms and conditions must set out in advance the grounds for suspending or terminating the service. A decision to restrict or suspend must be accompanied by a statement of reasons on a durable medium, and termination must be notified thirty days in advance. Ranking parameters, and any favourable treatment of the provider's own products, must be disclosed. And there must be an internal complaint-handling system, with provision for mediation.
These are administrative-law guarantees, transplanted into private contractual documents.
The same logic applies directly to fields nobody associates with competition law: franchise networks, payment scheme rulebooks, licensing systems within supply chains. Wherever a private rulebook decides access, the minimum procedural content tends to converge.
And an international trade dimension
Two points deserve attention. First, extraterritoriality: FIFA and UEFA are Swiss associations and were assessed in the ordinary way, because what matters is where the effects occur. It is the same logic that runs through the debate on the reach of recent EU instruments over third-country undertakings.
Second, private standards as barriers to trade. The Code of Good Practice in Annex 3 to the TBT Agreement already requires transparency and non-discrimination from standardising bodies, and private standards have occupied the WTO's SPS Committee for years. The Super League judgment gives that debate something it lacked: a judicially formulated test.
The conclusion of the series
The European Union does not address private regulatory power by prohibiting it. It accepts it and subjects it to procedural discipline.
● The problem is not power, but the coincidence of regulator and competitor.
● The answer is not to abolish that power, but to draw its boundaries.
● The four guarantees recur, almost identically, in sport, platforms and standards.
That is why C-333/21 is not a sports law case. It is a case about how a legal order handles power the state never exercised.
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.
