“A battle for the soul of European football.” That was how the Financial Times characterized the Super League crisis of April 2021, when 12 of Europe’s wealthiest football clubs announced their intention to break away from the existing competition structure and form a closed league of their own.
The backlash was immediate: fan protests erupted across Europe, political leaders issued condemnations, and both the Union of European Football Associations (UEFA) and the Fédération Internationale des Associations de Football (FIFA) threatened severe sanctions. Within days, most clubs withdrew.
Yet the episode laid bare a question that has been simmering beneath the surface of professional sports for decades, and which recent developments in EU competition law have brought into sharp focus: who has the right to control sport, and on what legal basis can such control be exercised?
Sports Governing Bodies as Private Sovereigns
This is not merely a philosophical inquiry; it has profound legal and economic implications. Sports governing bodies (SGBs)—e.g., FIFA, UEFA, the International Olympic Committee, and their national affiliates—have long operated as the “gatekeepers” of their respective sports. The vast commercial enterprise that sport has become continues to operate under a self-governance structure rooted in the 19th century, emanating from the IOC’s quest of operating without political interference. The tension between these historical origins and the contemporary commercial reality of sport lies at the heart of the current turmoil.
SGBs set the rules of the game, organize competitions, impose sanctions, and resolve disputes through their own tribunals. In doing so, they exercise powers that bear a striking resemblance to those of states: legislative, executive, and judicial functions bundled into private associations that answer, in practice, to no external authority.
To understand why sports governance has evolved in the manner it has, one must appreciate what economists refer to as the “peculiar economics of sport”—a phenomenon identified by Walter Neale in 1964. Unlike ordinary competitive markets, where competitors rationally seek to drive rivals out of business, sports clubs are characterized by mutual interdependence: a football team cannot produce its product—a compelling match—without opponents.
More significantly, the quality of that product depends critically on competitive balance, since consumers desire uncertainty about outcomes. This creates a genuine need for cooperation among competitors in many aspects and, consequently, for a regulatory body capable of enforcing uniform rules, coordinating schedules, and redistributing revenue to maintain competitive equilibrium. This led to the rise of SGBs as gatekeepers: for the sake of keeping a balanced sporting calendar, they have the right to authorize sporting events, which in reality likens them to market-entry regulators.
When the Referee Owns the Team
The difficulty, however, lies in the fact that the bodies performing this regulatory function are not neutral arbiters standing above the market they regulate. They are themselves commercial actors with interests that may diverge significantly from those of the clubs, athletes, and fans they inherently serve. FIFA and UEFA do not merely set the rules of football and regulate market access for potential external-competition organizers; they also organize and commercially exploit the most lucrative tournaments.
This dual role—simultaneously regulator and market participant—creates obvious conflicts of interest. When a sports federation decides whether to authorize a competing tournament, it acts at once as the regulator setting conditions for market entry and as a commercial competitor whose own events are threatened by that very competition.
For decades, sports governing bodies largely succeeded in insulating themselves from meaningful external legal scrutiny. They constructed the term “lex sportiva”—an autonomous transnational private legal order with its own rules, enforcement mechanisms, and dispute-resolution system. The Court of Arbitration for Sport—headquartered in Lausanne, Switzerland—serves as the apex tribunal of this system, resolving disputes under Swiss law and largely beyond the reach of national courts. Athletes and clubs who wish to compete have no practical choice but to accept this arrangement; the alternative is exclusion from their sport entirely, or as a famous sports arbitrator once put it, exercise their sports in their own backyard.
EU Law Enters the Pitch
EU law has, however, gradually eroded this autonomy. The European Court of Justice established as early as Walrave in 1974 that sport falls within the scope of EU law insofar as it constitutes economic activity—which professional sport manifestly does. The landmark Bosman judgment of 1995 struck down transfer rules and nationality quotas that restricted player mobility, applying the Treaty on the Functioning of the European Union’s (TFEU) free-movement provisions to football with transformative effect.
Subsequently, in Meca-Medina, the ECJ also extended competition-law scrutiny to sports regulations, holding that restrictions of competition could nonetheless be justified where they were inherent to legitimate sporting objectives and proportionate to achieving them. This analytical framework—examining whether restrictive effects are inherent in the pursuit of legitimate objectives—closely mirrors the necessity and proportionality test developed in the free-movement case law, revealing a functional convergence between the two branches of EU economic law as applied to sport.
These cases established an analytical framework balancing respect for sporting autonomy against EU economic-law requirements. SGBs retained considerable discretion in pursuing legitimate objectives: competitive balance, fair play, athlete health, integrity of competitions. But that discretion was bounded by necessity and proportionality; rules extending beyond what was genuinely required, or serving primarily to protect incumbent federations’ commercial interests, could not claim immunity from competition law.
The December 2023 trilogy of Grand Chamber judgments—Superleague, International Skating Union, and Royal Antwerp—represented something qualitatively different from the incremental development of this existing framework. These judgments marked a paradigm shift in how EU law approaches sports governance, moving beyond case-by-case review of specific regulations toward structural scrutiny of the very institutional arrangements that enable sports federations to function as gatekeepers of their respective markets.
The ECJ’s reasoning in Superleague is particularly instructive in this regard. FIFA and UEFA require their prior approval for any new football competition and threaten sanctions against clubs and players who participate in unauthorized events. The court found that these rules, as structured, infringed both the prohibition of cartels and abuse of dominance under EU law.
Crucially, the finding of infringement did not depend on how the rules had been applied in any particular instance. Rather, the rules were held unlawful because they lacked the substantive criteria, procedural safeguards, and mechanisms for judicial review necessary to prevent the arbitrary exercise of what amounts to control over market entry, given the fact that SGBs, according to the court, exercise decisive influence over the “sporting ecosystem.” By exercising unconstrained authorization power, FIFA and UEFA possess the capacity to block innovative competition formats—thereby harming athletes who might wish to participate in new ventures on the supply side, while simultaneously depriving consumers who might wish to watch such competitions on the demand side.
In reaching its conclusions, the ECJ explicitly drew upon its jurisprudence concerning public undertakings under Article 106 TFEU, which imposes special obligations on entities granted exclusive or special rights by EU member states. FIFA and UEFA, however, derive their gatekeeper position not from state action but rather from the organic development of the sports-pyramid structure and the inherent need for an internal market regulator capable of laying down common rules. These circumstances make participation in their ecosystem effectively mandatory for any entity wishing to engage in professional football.
The ECJ’s willingness to apply equivalent scrutiny to private bodies exercising equivalent power carries significant implications; it suggests that competition law can function as a form of constitutional constraint on private actors occupying quasi-regulatory positions. It is, in effect, what one might characterize as quasi-constitutional law for quasi-public actors.
The ECJ first addressed the role of mandatory sports arbitration in insulating sports from ordinary court review in International Skating Union, and also more specifically in this summer’s Seraing. As the CAS sits in Switzerland and applies Swiss law, its awards are subject only to limited review by the Swiss Federal Supreme Court—a court that cannot refer questions of EU law to the ECJ for preliminary rulings under Article 267 TFEU. This arrangement, the court indicated, undermines the effective judicial protection that EU law requires.
The implication is clear: sports federations cannot contract out of EU law by submitting disputes to arbitration, as member-state courts can now also de facto scrutinize the produced arbitration awards.
It is worth noting that the ECJ expressly rejected arguments that Article 165 TFEU—the provision granting the EU a supporting competence in the field of sport—should afford sports federations special protection from competition-law scrutiny. Advocate General Athanasios Rantos had suggested in his opinions that Article 165 represented a form of constitutional recognition of the European Sports Model, carrying horizontal applicability across the TFEU framework.
According to the ECJ, Article 165 does not appear among the treaty’s provisions of general application, nor can it establish a sui generis competition-law framework applicable exclusively to sport. The specific characteristics of sport may certainly be taken into consideration, but only to the same extent as the specific characteristics of any other economic sector would be. Sport, in other words, receives no categorical exemption—only the case-by-case sensitivity that competition-law analysis affords to context generally.
Conclusion
What emerges from these cases is a coherent framework for addressing the phenomenon of structural gatekeeping in sport. SGBs undoubtedly perform genuine regulatory functions that serve legitimate purposes rooted in the peculiar economics of their sector. Competition law does not require dismantling the pyramid structure or eliminating the coordinating role that international federations necessarily play.
What it does require is that the exercise of gatekeeper power be constrained by substantive standards and procedural safeguards. Authorization decisions must rest on transparent, objective, nondiscriminatory, and proportionate criteria; affected parties must enjoy access to effective judicial review; and federations cannot deploy their regulatory position to shield their commercial interests from competition by innovative rivals, thereby depriving consumers of greater choice or more innovative formats.
The parallel to digital-platform regulation is instructive, though it should not be overstated. Large technology platforms similarly function as gatekeepers, controlling access to ecosystems that network effects have rendered essential for economic participation. Yet the analogy has limits: Digital gatekeepers are fundamentally commercial actors whose power derives from market dynamics, while SGBs perform genuine regulatory functions rooted in the inherent need for competitive balance and coordinated rules. Competition law’s task is not to dismantle this regulatory function but to ensure it is exercised accountably.
The implications extend beyond sport. The ECJ has begun applying similar scrutiny to other private regulatory bodies—chambers of notaries, insurance intermediaries—that combine regulatory authority with commercial participation in the markets they oversee. What commenced as a recalibration of competition law’s approach to sports governance is crystallizing into a broader doctrinal framework for constraining private actors who occupy de facto gatekeeper positions. The quasi-constitutional function that EU competition law now performs may prove relevant wherever private bodies exercise quasi-public authority.
None of this suggests that sports federations have been stripped of their authority altogether. What has changed is the intensity of the scrutiny and the structural dimension of the inquiry. SGBs can no longer merely invoke sporting values in the abstract; they must establish governance structures with safeguards against abuse of gatekeeper power.
So, who regulates the regulators? EU competition law has provided a contemporary answer. For the quasi-states that govern global sport, the ECJ has emerged as an external check on power that had long operated without meaningful oversight. The court’s answer is now clear: those who exercise such control must earn that authority through governance structures that are transparent, proportionate, and subject to review. Gatekeeping is not prohibited, but it must be accountable.
