B. Can the EU be a Transformative Force?

Before addressing what precisely the EU can do, it is worthwhile to consider the preliminary question as to whether it should get involved in the business of reforming football at all. This may not be immediately obvious. We might expect that task to be the primary responsibility of other actors, such as individual states or the international community. The Union was founded as a project of regional economic integration and, during most of its existence, sports policy was not an explicit part of its mission statement.Footnote ³⁷ In spite of that, three reasons suggest that EU regulatory action in the field of football would have distinct benefits.

The first is the transnational nature of football. Few areas of life have acquired such a strong cross-border dimension as football. International competitions have been added to the domestic league systems and gained in importance over time. Take the European football landscape. Continental competitions—including, at present, the UEFA Champions League, Europa League, and Conference League—were established in the 1950s and have become ever more relevant for clubs as a source of income, measure of success, and object of aspiration.Footnote ³⁸ Partly as a consequence of this, and partly as the result of advances in broadcasting, travel, and technology, football fandom has become more internationalized, too. Aficionados follow their teams when they play games abroad, watching non-domestic leagues has become more popular, and support of clubs from other countries has increased.Footnote ³⁹ At the same time, the cross-border movement of players has surged. The Bosman ruling has made it easier for footballers to sign for teams outside their home country, a possibility of which they have made enthusiastic use.Footnote ⁴⁰ Football has, thus, become a truly transnational phenomenon. Consequently, it calls for a transnational regulatory response, one which the EU can deliver.

The second reason is the EU’s relatively stronger immunity from pressure exercised by football federations. Sports governing bodies around the world have put in place rules that prevent governments from interfering in their function.Footnote ⁴¹ Designed to protect the autonomy of sport, these safeguards have been interpreted increasingly widely and used to fend off attempts of government intervention—with great success. Their persuasive force is tied to the sanctions which they impose. Associations found to have been compromised by government action can be suspended and stopped from hosting or participating in major sporting events, a threat which frequently proves effective.Footnote ⁴² Prominent examples include Poland, where the Minister of Sport replaced the board of the Football Association with a government supervisor due to widespread corruption but had to backtrack after UEFA considered to take away the country’s hosting privileges of the 2012 Eurocup,Footnote ⁴³ and Peru, where a bill increasing financial reporting duties of and government control over the domestic federation was withdrawn after reports surfaced that the national team could be expelled from 2018 FIFA World Cup.Footnote ⁴⁴ More recently, the Italian and UK governments received similar warnings when announcing their intention to regulate aspects of football governance, leading, at least in the former case, to the planned legislation being significantly narrowed down.Footnote ⁴⁵ The EU cannot be punished with the same ease as it does not have its own association or team. Sanctioning all Member States instead is not a realistic option either, given that, for commercial reasons, no major football tournament could take place entirely without European participation. This gives the EU greater political leverage.

International action would, in theory, provide an alternative to EU regulation. States could agree to a set of legal standards that would govern football or sports more broadly. Successful examples of such cooperation exist in fields like anti-doping.Footnote ⁴⁶ However, there are two practical difficulties connected with this approach. One is getting a meaningful number of countries to coalesce around a meaningful set of regulatory requirements. Even the Convention on the Manipulation of Sports Competitions, which is among the few bright spots in this area, has only been signed by forty-three countries and ratified by a mere fourteen.Footnote ⁴⁷ Although it can also be difficult to reach agreement in the EU, there are well-established institutional structures in place that facilitate collective decision-making. The other downside is that international treaties lack the hard enforcement mechanisms that come with European law, making it comparatively easy for states to flout their responsibilities. By contrast, EU rules can create binding obligations that must be implemented by national governments, agencies, and courts in all Member States. An array of legal, political, and financial tools ensures high levels of compliance.Footnote ⁴⁸ This renders EU law less dependent on the goodwill of individual countries.

Finally, and despite its geographical limitations, the EU has the potential to positively influence sports governance at a global scale. This is important not just because of the growingly international character of football, but also in light of the fact that the most powerful federations governing the game, including FIFA and UEFA, are located outside the Union. EU action can be designed so that it applies to non-EU actors, as exemplified by the Digital Services and Markets Acts which regulate the conduct of Big Tech companies regardless of where these are based.Footnote ⁴⁹ EU sports legislation could, similarly, extend to the activities originating with governing bodies established outside the internal market, yet taking place or exerting effects inside of it, such as staging competitions, broadcasting matches, or concluding sponsorship deals.Footnote ⁵⁰ Even EU rules that are not specifically tailored to global phenomena can end up impacting on the global regulatory landscape. Political scientists know this phenomenon as “normative”Footnote ⁵¹ and “market power Europe,”Footnote ⁵² legal scholars have dubbed it the “Brussels effect.”Footnote ⁵³ Due to the EU’s ideational influence and the size of its economy, its rules influence legal standards worldwide in areas such as competition, environmental, and data protection law. Similar dynamics can be observed in relation to football governance, where regulations are often adapted to reflect the requirements of European law, though their territorial reach extends that of the Union.Footnote ⁵⁴ This suggests that the EU could, by broadening its regulation of football, effect change internationally.

The prospects of an EU-led initiative may raise legitimate worries about the Euro-centricity of the proposal. Too often have law and regulation served as tools of the Global North for wresting agency away from countries of the Global South.Footnote ⁵⁵ It is a point that needs to be taken most seriously. Yet, it need not preclude EU intervention but should, instead, guide the process and shape of that intervention. Due to the various forms of pressure and lobbying, the extent to which football is regulated across the world remains limited overall. EU action promises to fill this regulatory vacuum and, by doing so, empower stakeholders that are disenfranchised in present sports governance structures, in Europe and beyond. Organisations like FIFA have abused the argument of protecting the interests of countries from the Global South by shielding itself from regulatory oversight for too long. The under-regulation of football has achieved the exact opposite; it has hit vulnerable stakeholders in these countries the hardest.Footnote ⁵⁶ It led to the displacing of some of the poorest communities in South Africa and Brazil, left thousands of Nepalese workers deployed on Qatari infrastructure projects without legal protection, and denied women like Mariyam Mohamed the opportunity to take on executive roles in federations.Footnote ⁵⁷ By incorporating their voices, concerns, and rights in the regulatory process, the EU would strengthen, not weaken, their position in football.Footnote ⁵⁸

There are other reasons that may make us doubt whether it would be a good idea for the EU to increase its regulatory footprint in football. These include constitutional concerns. For a long time, the EU had no explicit competence to regulate sports. Although this has changed since the Treaty of Lisbon, the powers which it has gained are of a limited nature, comprising supporting action only.Footnote ⁵⁹ There are also political concerns. The Union has been argued to follow the dynamics of the “joint-decision trap,”Footnote ⁶⁰ a tendency of multi-level polities to struggle with adopting common rules due to differences between its constituent units or being forced to adopt rules representing the lowest common denominator. In a sensitive policy field like football this might make it particularly hard to reach an agreement. In addition, the already-noted signs of regulatory capture raise questions about whether EU institutions have the necessary independence to regulate the sport.Footnote ⁶¹ Finally, there are ideological concerns. The EU has long been criticized for having a neoliberal bias and being exceedingly focused on promoting free trade, although lacking a sensitivity for social, environmental, and, more broadly, non-economic interests.Footnote ⁶² Can we expect such an organisation to improve the state of affairs in football?

These concerns need careful consideration, and I will try to address them in the following sections. Still, even if the prospect of the EU regulating football more extensively might not seem like the perfect solution, it may well be the least imperfect solution.Footnote ⁶³ Weatherill puts it pointedly: “By some distance the strongest argument in favor of placing faith in the EU as a source of governance reform in sport is – if not the EU, then who?”.Footnote ⁶⁴ Football authorities have, time and again, been shown to be unwilling to implement serious reforms. National governments have, by and large, felt impotent to demand them. The legislative initiatives in France, Spain, and the UK, although undoubtedly significant, remain exceptions, which can to some extent be explained by the strength of the domestic sports markets, and have a limited territorial scope. Switzerland, where FIFA and UEFA are located and could, therefore, be controlled most directly, has a notoriously laissez-faire approach to sports regulation.Footnote ⁶⁵ An international initiative extending beyond Europe’s confines is not in sight.Footnote ⁶⁶ Market-based solutions have, due to the quasi-natural monopoly structure of football, low chances of success.Footnote ⁶⁷ In this situation, the EU at least offers the possibility of bringing about change. How it can do that is the topic we shall turn to next.

C. Option One: EU Adjudication

One way of expanding EU regulatory control of football would be to intensify the scrutiny exercised vis-à-vis football governing bodies in judicial and other types of formal proceedings, such as competition or state aid investigations. Institutionally, this would primarily involve the Court of Justice and the Commission. Substantively, it would concern the application of internal market rules. The idea here would be to broaden and deepen EU scrutiny in football-related cases and, thus, increase the degree of external supervision of the sport. This proposal fundamentally amounts to a continuation of what the EU has been doing in the realm of sports, but with greater vigor. It would seek to harness the power of adjudication in a more pro-active manner.

Most of EU sports law has been created through CJEU rulings or Commission decisions. The Court accepted in Donà that professional football constitutes an economic activity and falls into the scope of the free movement rights.Footnote ⁶⁸ As a result, football regulations which impede cross-border movement of players are, despite their typically private nature, prima facie violations of EU internal market law. This logic was prominently applied in Bosman, in which FIFA and UEFA’s then-binding rules on nationality and transfer restrictions of players were struck down. Other cases followed.Footnote ⁶⁹ In the meantime, the Commission began to employ EU law to scrutinize acts of football authorities too, initially focusing on competition rules. It examined restrictive rules on package tours and ticketing during the 1990 and 1998 World Cups,Footnote ⁷⁰ reviewed restrictions on multi-club ownership,Footnote ⁷¹ and secured commitments in a series of proceedings concerning the collective sale of broadcasting rights.Footnote ⁷² Subsequently, its attention turned towards combatting subsidies granted to football clubs by local governments in breach of EU state aid provisions.Footnote ⁷³

From a football governance perspective, the suggestion to intensify European scrutiny in cases like these may sound curious. Has not the EU interfered in football enough already? The Union has been famed and shamed for limiting the autonomy of sports. Legendary are the comments made by former UEFA president Lennart Johansson in the aftermath of Bosman: “The European Union is trying to destroy club soccer.”Footnote ⁷⁴ For football authorities, the intervention of a public regulator was, at that point, a novelty. They had gotten accustomed to enjoying essentially unfettered discretion in running their affairs, a model rooted in the 19th century ideas of sport as a voluntary pastime for amateurs. In this light, having the Court of Justice set legal boundaries for self-regulation constituted an unprecedented restriction of their decision-making freedom. It signified a shift from the idea of absolute to that of “supervised” autonomy.Footnote ⁷⁵

From a single market perspective, the sports cases present themselves in a different light. Compared with many—not allFootnote ⁷⁶—areas of internal market law, the scrutiny to which football authorities are subjected has mostly been limited. The exemption of rules of “sporting interest only” from judicial review and the continuous recognition of the specific nature of sports have contributed to a lenient standard of scrutiny.Footnote ⁷⁷ Until recently, where football rules were reviewed, they tended to be upheld or, at best, corrected at the margins. The Court of Justice’s case law is indicative in this regard. Piau lent indirect support to FIFA’s (old) player agents regulations.Footnote ⁷⁸ Bernard merely required technical amendments in how training compensations for young players are calculated.Footnote ⁷⁹ The same pattern can be observed outside of football: Meca Medina upheld anti-doping rules for swimmers; Lehtonen affected minor aspects of the transfer rules in basketball but gave the general system the green light; Deliège refused to find that selection procedures for judo competitions constituted a restriction on free movement altogether.Footnote ⁸⁰ With the exception of Bosman, the Court’s jurisprudence had, for the longest time, not forced any fundamental changes on football governance.Footnote ⁸¹

This is starting to change. The trio of sports rulings rendered by the CJEU in December 2023 embodies a re-thinking of the appropriate level of scrutiny, testifying to a willingness to probe more intensely into the actions of sports federations, particularly through the means of EU competition law.Footnote ⁸² European Superleague epitomizes the new approach. The question at the heart of the dispute was whether the FIFA and UEFA rules on prior authorisation of third-party events are compatible with Articles 101 and 102 TFEU. Whereas Advocate General Rantos had taken a deferential approach in the case, accepting that the relevant regulations were mere restrictions by effect which—based on a distinctly light-touch review—constituted justified and proportionate means for protecting the European Sport Model,Footnote ⁸³ the Court opted for a more substantive form of review. It underlined that sporting activities are subject to the ordinary application of internal market law. Third parties cannot be categorically prevented from hosting football events; their requests must be decided based on authorisation regulations which comply with a set of transparency duties, including clear, precise, and non-discriminatory rules that enable effective review. Departing from previous case law, the Court also held that the ancillary restraints exemption, which permits private actors to impose limitations on economic freedom as long as these pursue legitimate objectives in a proportionate manner, no longer applies to by object restrictions. As a result, sports governing bodies can now only defend such measures based on the more demanding Article 101(3) TFEU, or the equivalent objective necessity test from Article 102 TFEU.

This doctrinal shift facilitates more in-depth judicial review and, by the same token, forces federations to explain and justify their regulatory choices to a greater extent than before. Superleague and Antwerp illustrate this neatly. The Court accepts that football governing bodies can restrict third-party competitions to protect sporting merit and financial solidarity, but asks them to present “convincing arguments and evidence” that the authorisation rules will translate into “genuine, quantifiable efficiency gains.”Footnote ⁸⁴ They can force clubs to have a minimum of locally trained players to incentivize the training of young athletes, as long as they can produce “specific arguments and evidence” on the “reality of that incentive.”Footnote ⁸⁵ The benefit which federations bring to the world of football will not simply be assumed—it must be proven.Footnote ⁸⁶ This may lead to more balanced and inclusive decisions in governing bodies, which are now obliged to consider the interests of all affected by their actions. But it, equally, incentivizes further litigation. As it gets harder for federations to defend their rules, it becomes more appealing for actors dissatisfied with them to mount legal challenges.

The result is a formidable weapon which could be strategically deployed as a tool for change. The recipe is simple: Stakeholders bring court cases to overturn unfair or harmful football regulations. We have gotten a first taste of the power of this idea over the past months, during which an unprecedented amount of football litigation has been launched. In Diarra, a former player questioned the legality of the FIFA rules on premature contract termination without cause.Footnote ⁸⁷ Applying its new sports jurisprudence, the CJEU found them to amount to disproportionate restrictions on free movement and competition. Three more preliminary references, one on the operation of sports arbitrationFootnote ⁸⁸ and two on the reworked player agents regulations,Footnote ⁸⁹ are pending. Another dispute on the division of football leagues across national boundaries is unfolding before the domestic courts in Luxembourg.Footnote ⁹⁰ Moreover, the international players union FIFPRO has brought legal action in Belgium against FIFAʼs plans to stage an expanded Club World Cup, highlighting the adverse effects of an increasingly congested match calender on the health of players.Footnote ⁹¹

For this approach to unfold its full potential, the Commission—as well as national competition authorities—would need to get on board. The Commission has, even more so than the Court, been highly deferential in its supervision of football governing bodies, often heeding to the idea of the specificity of sport.Footnote ⁹² There are two ways for extending its control. First, the Commission could take on more football cases. An important difference between judicial and competition or state aid proceedings is that the former can, for the most part,Footnote ⁹³ not be initiated by the EU itself. The Court has to wait for litigation to come its way. By contrast, the Commission can launch proceedings of its own motion. This is a mighty power, but it has been used scarcely in football-related matters. A few early examples aside, all competition investigations concerning football were conducted in the long decade following Bosman; no formal proceedings have been initiated since 2006. As already noted, there was a series of state aid cases in the 2010s, yet these were primarily directed at local municipalities, not football governance bodies. The dearth of proceedings is not due to a lack of potential legal problems within the world of football, or their connection with European law. Given the broad scope of the EU competition rules and the monopolistic structure of football, many decisions taken by the sport’s governing bodies, leagues, and clubs could, in theory, be reviewed. Nor is it due to a lack of awareness of these problems. Football stakeholders have frequently filed complaints, trying to convince the Commission to take action.Footnote ⁹⁴ Yet, their requests have been rejected for reasons of political expediency.Footnote ⁹⁵ A greater willingness of the Commission to investigate in this area, by following up on complaints and opening proceedings of its own motion, would broaden EU control over football. The International Skating Union case provides a blueprint in this regard.Footnote ⁹⁶

Second, and relatedly, the Commission could exercise more intense scrutiny in the cases which it decides to pursue. Much of what has been said earlier in relation to the Court applies here. The key would be to conduct a more thorough assessment of football rules and their justifications. Take, by means of example, the decision on the joint selling of the Champions League broadcasting rights.Footnote ⁹⁷ The choice to sell rights collectively is prima facie anti-competitive as rights holders cannot compete on the broadcasting market. Rights for football competitions still tend to be sold jointly, for one, because it is easier to have a single TV contract than a plethora of agreements with individual clubs and, for another, because the collective selling serves a redistributive function. Better known teams increase the attractiveness of the product, with the money generated going towards clubs that are less known. After UEFA committed to an unbundling of the rights offered, the scheme was swiftly approved under Article 101(3) TFEU. Yet, the question as to whether it fulfills the requirements of the provision should have been—and, after Superleague, will have to beFootnote ⁹⁸—posed with greater seriousness. In particular, efficiency gains for all users must be shown. Scholars have highlighted that the current system acts to the detriment of broadcasters and fans by artificially increasing licensing and subscription fees.Footnote ⁹⁹ Its redistributive aspects were left out altogether of the Commission’s assessment. If a core motivation for selling rights jointly is the transfer of funds from wealthier to poorer teams, there must be an investigation into whether the scheme manages to achieve that objective.Footnote ¹⁰⁰

Pursuing football reform through enhanced EU adjudication would have several advantages. Perhaps the most obvious one is the familiarity with this approach. EU institutions have experience with applying internal market rules to football-related matters, and these rules impose legally binding obligations on federation, a point that will be explored in greater detail in the next section. But there are also two more subtle benefits in terms of institutional dynamics. One is that the Court and Commission have a higher degree of independence than the EU legislative process, attenuating the risk of capture, and are smaller in size. This means that fewer actors need convincing. There is notably no need for direct support of the Member States, some of which have shown be particularly protective of sports governing bodies.Footnote ¹⁰¹ The second is that adjudication, unlike legislation, allows unrepresented stakeholders to challenge the status quo more easily, even without political support. Although not everyone benefits to the same extent—litigation tends to favor the “haves” over the “have nots,”Footnote ¹⁰² this feature has been cleverly used by players, clubs, and agents, all actors with only limited representational gravitas in the football pyramid, to prompt legal change.

But there are, likewise, serious disadvantages attached to this course of action. To begin with, any reform effort achieved through the adjudicative process would necessarily remain ad hoc.Footnote ¹⁰³ One regulatory issue would be settled in one case, another would be handled in a following case, and yet another in a further case, each of which might be years apart. Although the Court and Commission have embraced certain overarching principles when dealing with football, such as recognizing its social function and the significance of values like financial solidarity, competitive balance, and sporting integrity,Footnote ¹⁰⁴ it is hard to impose a coherent regulatory vision in this way. To make matters worse, at least the CJEU can, as noted, not directly control its agenda.Footnote ¹⁰⁵ Therefore, the potential for reforming football judicially will always depend on suitable legal proceedings being brought, and that is not a given. Where we will want to regulate player welfare or improve environmental standards, there may only be cases on breakaway leagues or agent remuneration.

Perhaps more importantly, however, it is open to question whether free movement and competition rules provide a suitable normative framework for regulating football.Footnote ¹⁰⁶ As an instrument of negative integration, their primary role is to remove, not create, regulatory requirements. This carries the risk of facilitating de-regulation in an area where more regulation is needed. More worryingly still, they force a peculiar legal structure onto football, which was originally created to deal with trade barriers and market failures. EU competition law exemplifies the problems this can create. It is a field built on concepts such as efficiency gains, consumer welfare, and output levels. Whether these provide a helpful lens for regulating the types of problems arising in football is anything but obvious. Despite the rapid commercialization which the sport has undergone, it is not, and has never been, just about commercial interests. It pursues a variety of social, educational, redistributive, and health-related functions, which competition law famously struggles to accommodate.Footnote ¹⁰⁷ This means that although competition rules may be a potent tool for reform in some areas, they will be inept at handling others or may even stand in the way of achieving public policy objectives. The proceedings against the 50+1 Rule which protects majority fan ownership of football clubs in Germany are, although ultimately unsuccessful, a warning sign of the tensions that may be on the horizon.Footnote ¹⁰⁸

D. Option Two: EU Cooperation

In addition to hard EU sports law generated through adjudication, a number of softer EU policy measures regarding football and sport in general have emerged over time. Some of these policies were already mentioned. They include documents such as the 2007 White Paper on Sport, the periodic work plans setting the EU’s policy ambitions in the sector, as well as numerous topic-specific resolutions, recommendations, and reports. Here, too, changes could be made with a view to increase European regulatory oversight.

In football, arguably the most important policy instrument is the cooperation between the EU and the sport’s governing bodies. This cooperation initially occurred on a case-by-case basis around questions of compliance with EU law. After the Bosman ruling, the Commission entered a protracted and, at times, arduous dialogue with FIFA and UEFA which led to the adoption of a new transfer system. In subsequent years, UEFA would consult with the Commission about the legality of further endeavors, including the sale of broadcasting rights, the homegrown players rule, and the Financial Fairplay Regulations. Since 2014, this relationship has been formalized. The Commission and UEFA signed an “Arrangement for Cooperation” with the objective to strengthen the ties between the two institutions. It was renewed and extended four years later and is, as of June 2022, in its third edition.Footnote ¹⁰⁹

Looking at the content of the Cooperation Arrangement, we find a great deal of powerful rhetoric. We learn, among other things, that both sides “share a common desire to promote and strengthen a ‘European Sport Model’ based on values, such as solidarity between different levels in sport, in particular between professional and grassroots sport, fairness, integrity, openness, gender equality and good governance in sport”;Footnote ¹¹⁰ that they seek to promote climate action, social inclusion, the women’s game, financial solidarity within the football pyramid, and competitive balance between clubs;Footnote ¹¹¹ that they will protect fundamental rights as enshrined in the EU Charter of the Fundamental Rights and the UEFA Human Rights Commitment; and reinforce the fight against discrimination of the LGBTIQ community.Footnote ¹¹² There is even a passage stating that that the sides “aim at continuing to promote principles of good governance in sport, such as accountability, democracy, inclusivity, integrity, participation and transparency, whilst also sharing an ambition to further develop these principles in ensuring gender equality and representativeness.”Footnote ¹¹³

Despite its grandiloquence, the Agreement contains preciously little substance. Other than some generally worded statements about intensifying mutual efforts during the Men’s Euro 2024 and Women’s Euro 2025, it only states that in order to attain the aforementioned objectives, the sides intend to participate in joint events and initiatives, facilitate dialogue and cooperation, and exchange information and best practices.Footnote ¹¹⁴ There are no hard commitments, no expected results, no concrete benchmarks.

The hope behind the Arrangement—at least, on a charitable reading—may have been that it would lead to improvements in football governance by deepening the relationship between the EU and UEFA. The now-defunct German foreign policy maxim “Wandel durch Handel”, or “evolution through trade”, comes to mind, whereby economic connections with authoritarian countries are established with the (official) aim of bringing about political change.Footnote ¹¹⁵ Yet, almost a decade into the formal cooperation with UEFA there is no sign that tangible change has been attained, indeed. Instead, the agreement has created a series of problems which hamper reform.

To begin with, the Cooperation Arrangement contributes to solidifying UEFA’s position as the control center of European football. This is partly because UEFA is the only actor from the world of football which enjoys the privilege of having a formal agreement with the Commission, and partly because the text explicitly recognizes the pyramid structure as an essential feature of the European Sports Model.Footnote ¹¹⁶ By the same token, the Arrangement facilitates lobbying. The institutionalized dialogues, events, and knowledge exchanges provide ample opportunities for football officials to further their influence within the European political process. Finally, and most worryingly, the agreement imbues UEFA with normative and cognitive legitimacy.Footnote ¹¹⁷ Slogans about UEFA’s commitment to values such as good governance, gender equality, and fundamental rights are repeated without critical appraisal. This lends them an aura of veracity, while also creating a sense of inevitability about UEFA being the sole institution that can protect them.

What could be done to remedy the situation? There are several possibilities. As a basic principle, the EU should demand more in exchange for its cooperation with UEFA in future iterations of the agreement. At present, the main benefit which the EU appears to derive is, other than the occasional photo opportunity with football dignitaries, having its Green Deal advertised during Champions League matches. This is not enough. The Commission could make the acceptance of concrete commitments—on transparency, representation, climate change, social inclusion, the women’s game, and the many other objectives listed in the current agreement—a condition for mutual cooperation. Even if not legally binding, they would articulate specific duties that UEFA would be expected to comply with, thus facilitating accountability. Where such commitments are not viable, general goals or benchmarks could be formulated, along the lines of those commonly used in international law.Footnote ¹¹⁸ These could be paired with indicators that allow to measure implementation and progress.Footnote ¹¹⁹ Heerdt and Bernaz have made a proposal in this direction concerning the protection of women’s rights in football, outlining the positive impact that structural, process, and outcome indicators could have.Footnote ¹²⁰

In addition, the EU could consider concluding formal agreements, or engaging in similar institutionalized forms of cooperation, with football stakeholders other than UEFA. Already after the signing of the first Cooperation Arrangement in 2014, Duval noted that:

The focus on cooperating with UEFA, and with UEFA only, may seem like a natural consequence of the pyramid structure in which European football is organized. However, by buying into the premises of the present governance system, the Commission also perpetuates and reinforces many of its problematic features. Restricting one’s perspective to the opinions of a small number of UEFA officials is a poor way of determining the general interest of football. Hearing the concerns of the constituencies which are under-represented in football decision-making processes would provide a better-balanced picture. This could include cooperations with FIFPRO, the organization representing professional footballers;Footnote ¹²² the recently founded Union of European Clubs, which seeks to provide a platform for smaller clubs that do not feel represented within UEFA;Footnote ¹²³ fan groups such as Football Supporters Europe, which promote fan involvement across the continent;Footnote ¹²⁴ and some of the manifold NGOs working on football-related matters, whose thematic interests range from human rights and gender equality to environmental protection and anti-racism.Footnote ¹²⁵

The potential of reforming football through changes in the EU’s approach to cooperation, be it vis-à-vis UEFA or other stakeholders, should not be underestimated. Introducing commitments or benchmarks in the Commission’s agreements with UEFA could incentivize action in the areas covered; the reputational costs connected with a failure to achieve the stipulated objectives would serve as a motivation to work towards compliance. Giving a platform to unheard voices would put pressure on football governing bodies to consider viewpoints that are currently neglected and, thus, possibly lead to a re-thinking of their policies. All of this, however, ultimately is only a poor substitute for conventional regulation. Given that none of the obligations would be legally binding, football authorities could choose to not engage in the desired behavior with relative ease. The only tool to prevent this would be informal sanctioning mechanisms, the most important of which is public pressure. Putting too much faith into the effectiveness of public pressure alone—not backed up by the threat of legal sanctions—is a risky bet. Too often have football governing bodies shown to be unresponsive to both the general public and stakeholders from within the sport.

Cooperation agreements are, I should add, but one policy tool through which the EU can and has tried to influence football governance. A social dialogue committee for professional football was established to facilitate negotiations on labor-related issues between players, clubs, and leagues.Footnote ¹²⁶ Different EU institutions and expert groups have issued reports and recommendations for sports governing bodies.Footnote ¹²⁷ Funding of football-related projects via the Erasmus+ program has been used to advance European policy objectives.Footnote ¹²⁸ One could, in principle, consider employing any of these instruments more actively as a means for reform.

Yet, similar reservations to those voiced above apply. In the decade and a half since its creation, the social dialogue mechanism has just yielded one tangible output, the agreement on minimum requirements for standard football player contracts.Footnote ¹²⁹ Given that this is a voluntary process which is largely handled by the social partners, it is unclear whether and how the EU could nudge them towards cooperating on a wider range of subject-mattersFootnote ¹³⁰—except, of course, through the threat of litigationFootnote ¹³¹ or legislation. Crucially, collective bargaining does not provide a suitable solution for regulatory problems that do not concern employment relationships, such as good governance, fan rights, and environmental sustainability. There is no evidence that the many reports produced by the EU and its expert groups, which typically issue soft calls and recommendations, have had a palpable impact on the running of sports either. The Erasmus+ funding seems to have some positive influence on social cohesion and gender equality,Footnote ¹³² but has a limited financial scope and does not extend to core governance issues; the idea of “money for reforms” will forever be a difficult sell in an industry as wealthy as football. In sum, while potentially useful, these instruments at best constitute complimentary devices in the quest for reform.

E. Option Three: EU Legislation

The final, and most ambitious, way to expand EU regulatory oversight would be adopting a European Sports Act.Footnote ¹³³ By this, I mean a piece of secondary—in domestic terms, statutory—legislation that would lay down binding rules covering some core aspects of football or, more broadly, sports governance. Nothing of the kind exists as of yet in the EU. Although there is no European template for this type of action, the legislative initiatives in countries such as France, Spain, Poland, and the UK could serve as sources of inspiration.

What would this legislation entail? There is a variety of possibilities in terms of the breadth and depth of the rules that could be imposed. The choice will, on the one hand, depend on the identification of regulatory objectives, or in relation to which aspects of football governance we consider intervention to be needed. With some, such as preventing corruption and bribery, this will be evident. With others, such as promoting fan representation or competitive balance, there might be greater disagreement. On the other hand, the choice will depend on the extent to which we want to pursue these objectives and the tools we see as being capable of attaining them. For each of the proposals discussed in the following, more and less far-reaching reaching variants can be envisaged. Selecting the appropriate instruments and striking a balance between the competing interests at stake would be the task of the EU political process. But despite the open-ended nature of this exercise, the discussion ought to be structured around, and consider adopting, two sets of rules: Governance requirements and substantive requirements.

As a starting point, a European Sports Act would need to stipulate minimum governance standards, that is, rules concerning the institutional structure and decision-making processes of football governing bodies. Good governance has become a much-used concept, inside and outside of sport.Footnote ¹³⁴ Different definitions have emerged, but they revolve around a few common themes which could guide EU action.Footnote ¹³⁵ Accountability is one of them. European legislation should set requirements for free, fair, and regular elections in governing bodies. Imposing limit term times for executive positions would also prevent accumulations of power. Representation is another. Federations could be obliged to ensure the representation of stakeholders who currently have no, or limited, voice in decision-making processes. This includes women who remain under-represented at all levels of football governance,Footnote ¹³⁶ a situation that could be improved by laying down mandatory quotas, which exist in France and soon Poland—set respectively at 50% and 30%Footnote ¹³⁷—and would be consistent with EU instruments such as the Women on Company Boards Directive.Footnote ¹³⁸ It equally extends to players, clubs, and fans. As to the latter, the UK fan-led review proposed the establishing of “golden shares” and shadow boards to allow supporters influence decisions taken by their clubs; at governance level, there could be a requirement to give fan representatives seats in executive bodies. To prevent conflicts of interests, individuals who are active in football should be prohibited from profiting from the commercial exploitation of football-related activities, as per the “Anti-Pique clause” in Spain’s new sports act. To improve the effectiveness of checks and balances, rules could be put in place to stop officials who served in one “branch” of football governance, for example in executive committees, to serve in another, like disciplinary committees.Footnote ¹³⁹

One issue that would need discussing in this context is whether the regulatory and commercial functions of football authorities should be separated. Weatherill has made a proposal to that effect, emphasizing the systemic conflict of interests between the two roles.Footnote ¹⁴⁰ The problem with having regulatory powers and economic interests in the same pair of hands is that the latter can easily influence the former. A federation may, under the banner of protecting the integrity of the sport, take decisions that are aimed at promoting its financial goals, a danger explicitly recognized in the Superleague and ISU judgments. The potential for cross-contamination could be reduced if the two functions are uncoupled. This would be a drastic measure, but not an unprecedented one. For example, the EU competition investigations into international motor racing in the early 2000s resulted in the Fédération Internationale d’Automobile (FIA) separating its regulatory and commercial operations.Footnote ¹⁴¹ Alternatively, the Sports Act could be helpfully used to provide guidance on how governing bodies can avoid conflicts of interests while discharging their functions in order to comply with the transparency duties enunciated by the CJEU.

Governance standards should be seen as a non-negotiable component of any EU sports legislation, but more can be done. Substantive requirements could be adopted with a view to regulating the content of football rules and policies. Again, the list of potential suggestions is long, but documents like the Council of Europe resolution on football governance contain, in addition to the various legislative initiatives at Member State level, helpful guidance.Footnote ¹⁴² The EU could impose human rights obligations on football governing bodies to protect individuals within the game, such as free speech of players and supporters, or affected by it, like health and safety of workers involved in infrastructure projects or citizens living near them; this could extend to bidding criteria for football competitions.Footnote ¹⁴³ Athletes’ rights could be strengthened. The protection which players enjoy in the sports justice system has long been criticized as insufficient,Footnote ¹⁴⁴ and could be enhanced by introducing requirements concerning the right to defense, the independence of adjudicators, and the availability of remedies before ordinary courts.Footnote ¹⁴⁵ The protection of minors from abuse, violence, and trafficking could be improved. Associations could be obliged to comply with the principle of equal pay and adopt robust maternity policies. An owners’ and directors’ tests could help control who gets to run football clubs, involving, as proposed in the UK Fan-Led Review, checks on integrity, competence, and financial resources. Other ideas, such as rules protecting the openness of football competitions, laying down improved head injury protocols, and setting expectations towards financial redistribution, are among the many propositions that could be considered.

Readers familiar with the inner workings of sports will have noticed that although some of the requirements mentioned above are novel, others already exist in the rules of football governing bodies. One may be tempted to think of the latter as an unnecessary duplication of regulation, but that would be a hasty conclusion. Even if EU legislation were to reproduce standards set out in football statutes, it would still have an important added value. The shift from self-regulation to regulation entails the shift from self-control to external control. What is problematic about present-day football governance is not primarily that there is a lack of sensible rules, but that these remain underenforced or misapplied. Even the best-intended internal reforms are bound to remain ineffective as long as no cultural change takes place within an organization.Footnote ¹⁴⁶ Having public safeguards would, to an important extent, allow this problem to be overcome by enabling public scrutiny. We would no longer be powerless if a FIFA President extended their tenure beyond what is permitted, officials were appointed despite lacking political or financial independence, or the hosting privileges for a World Cup were awarded to countries with a poor human rights record. EU institutions could review and, if necessary, correct these violations.

This brings me to the issue of enforcement. A choice would have to be made as to how to implement the normative content of the European Sports Act. Several possibilities exist here. The first would be to simply adopt the law without creating a special enforcement regime. We would have a set of rights and obligations with which actors in the football world would be expected to comply, similarly to European legislation in many other fields. Both EU and national authorities as well as, assuming the new rules had direct effect, private individuals would watch jointly over their compliance. A second, more determined solution would be to put enforcement in the hands of an institution that systematically monitors the conduct of football governing bodies and actors. This could be the Commission which, as the “guardian of the Treaties,” already has expertise here, but would need additional resources to discharge its tasks, for example through an Office or Directorate-General for sport. However, ideally, an independent regulator would be established in the form of an EU sports agency, which could be modelled after the one proposed in the UK Football Governance Bill and possibly co-operate with designated national authorities.

Regardless of which precise requirements are adopted, one issue that would need consideration is whether football governing bodies should gain something from being regulated. In particular: Should they be granted a legal monopoly in return for adhering to external regulatory standards, as a quid pro quo?Footnote ¹⁴⁷ There are examples of this type of arrangement at the national level. Some Member States, such as France, have accorded sports federations exclusive governing rights while subjecting them to regulatory requirements. This solution would certainly make it more palatable for football authorities to accept EU legislation. It would, however, also be a big concession—and it is not clear whether that concession is warranted. There would be something unusual about a sector creating so many negative internalities and externalities that lawmakers feel the need to intervene, yet being rewarded by securing a monopoly to pursue its activities. It may, instead, be justified to regulate the field without cementing its monopolistic makeup, as recent EU legislation on digital services illustrates.

Addressing these delicate regulatory questions risks, some may object, putting the cart before the horse. Would the EU even be allowed to enact a football law? A constitutional pre-requisite for legislation is competence. The Union is bound by the principle of conferral, which means that it can only act where and to the extent which the Treaties allow it to. Historically, the EU had no explicit power to regulate sports. This has changed with the Treaty of Lisbon and the insertion of Article 165 TFEU, which tasks it with contributing to European sporting issues by, inter alia, “promoting fairness and openness in sporting competitions” and “protecting the physical and moral integrity of sportsmen and sportswomen.”Footnote ¹⁴⁸ Although this puts EU policy making in the field of sports on firmer ground, the norm is designed as a supporting competence. It enables the adoption of incentive measures and recommendations but excludes harmonization. Or, as the Court of Justice somewhat formalistically put it in Superleague, Article 165 TFEU covers “actions” in the field of sport, not “policies”.Footnote ¹⁴⁹ As a legal basis for setting binding pan-European standards—of whatever scope and depth—it would, therefore, be unsuitable.

Article 114 TFEU provides a better alternative. It gives the EU the competence to adopt legislative measures relating to the internal market, and could, if needed, be used in combination with more specific norms from free movementFootnote ¹⁵⁰ and other areas.Footnote ¹⁵¹ There are scores of legislative precedents for this way of proceeding. The aforementioned Digital Services and Market Acts, which regulate Big Tech companies, are based on Article 114 TFEU. The European Media Freedom Act, which promotes media pluralism and independence,Footnote ¹⁵² is as well. So is the Critical Entities Resilience Directive, which protects essential infrastructure.Footnote ¹⁵³ The Corporate Sustainability Due Diligence Directive, which strengthens human rights duties of businesses, adds Articles 50(1) and 50(2)(g) TFEU to the mix.Footnote ¹⁵⁴ These are but the latest high-profile examples.

According to a well-established line of case law,Footnote ¹⁵⁵ Article 114 TFEU can be invoked for measures that are genuinely aimed at improving the conditions for the establishment and functioning of the internal market. Mere disparities between Member State laws are not sufficient. They must obstruct free movement and have a direct effect on the functioning of the internal market or cause significant distortions of competition. Laws can be aimed at preventing the emergence of future trade barriers as long as they are likely and pursue non-economic objectives, even if they are a decisive factor in the regulatory choices made. The Court has interpreted these criteria generously,Footnote ¹⁵⁶ and there can be little doubt that European legislation which focuses on professional football or sports would meet them. Sport is a significant element of the internal market, accounting for over 2% of the EU’s GDP and 3% of its employment, with professional football making up the lion’s share of these figures.Footnote ¹⁵⁷ There are already significant disparities in how football is regulated across Europe, which stem from both public legislation and private self-regulation.Footnote ¹⁵⁸ They might further deepen in the future, as the recent legislative developments at the national level suggest. The regulatory differences restrict freedom of movement and have a direct effect on the internal market, by making it less attractive and, at times, impossible for players, clubs, owners, and other actors to work, provide services, or invest capital abroad. By the same token, they affect competition in a tangible way, by creating different conditions for economic activity across leagues and associations.

The question may be raised whether relying on Article 114 TFEU would not amount to a circumvention of Article 165 TFEU. Several reasons militate against this reading. The EU is, in principle, free to choose the legal basis for its actions, as long as that the criteria for resorting to that legal basis are fulfilled. If the requirements for legislating under Article 114 TFEU are met—and they are—the existence of Article 165 TFEU cannot alter that conclusion. Suggesting otherwise would mean that the introduction of the latter provision has somehow restricted the scope of the former, or that the EU’s competence to regulate sports through its internal market powers has, paradoxically, become narrower after it was given a formal sports competence. It is worth highlighting that the CJEU’s latest jurisprudence does not change things in this regard, as the CJEU insists on the limits of Article 165 TFEU while not ruling out regulating the sector through other legal bases. I should add that it is not unusual for EU institutions to rely on general competence norms although more specific, thematically relevant provision exist. We have even seen this happening in the area of sport itself, and to the benefit of UEFA, the cooperation agreement with whom was concluded not based on Article 165 TFEU, but Article 17 TFEU.Footnote ¹⁵⁹ None of this renders Article 165 TFEU superfluous. The norm permits the EU to adopt a variety of measures it could otherwise not pursue, or not as easily, including on sports funding, through programmes like Erasmus+ and the European Year of Youth, and international cooperation, such as agreements on anti-doping. Nor does it turn Article 114 TFEU into a general sports competence. Only economic aspects of sports with a direct impact on the internal market fall in its purview, while others, such as the regulation of local and amateur sports, remain outside of it.

The benefits of pursuing the goal of football reform through EU legislation are, in many ways, a direct response to the drawbacks of the two previously discussed options. A dedicated football law would allow the EU to regulate in a systematic, not ad hoc, manner. It would establish predictable rules for football stakeholders that would not depend nearly as much on litigation. It would, at the same time, permit to adopt a coherent regulatory framework that would replace the current piecemeal approach. Unlike in judicial proceedings, the rights, interests, and concerns of all football stakeholders—not just the ones affected by the specific dispute—could more easily be taken into consideration. This would enable the finding of acceptable trade-offs and compromises on a variety of issues that, during legal or competition proceedings, are discussed separately but are, in substance, closely linked to one another: Transfer rules and financial sustainability, club ownership and fan rights, training compensation and revenue redistribution, and so on. Finally, and in contrast to the EU cooperation route, all of this would come in the form of binding legal rules, which can be enforced by institutions outside the football world.

The principal problem with the legislative approach is practical: How to get there? As promised at the outset, I will provide some reflections on this issue in the next section. At this point, however, it bears pointing out that if, for political or other reasons, it proves impossible to enact reasonably comprehensive football legislation, the EU could adopt sectoral measures instead. These would be aimed at specific aspects of football governance, such as athletes’ rights, fan representation, or, to mention a topic debated before the European Parliament not too long ago, environmental impact.Footnote ¹⁶⁰ Alternatively, legislative projects with a cross-sectoral reach could be extended or applied to football-related issues. The Television Without Frontiers Directive, which protects public access to major sporting events,Footnote ¹⁶¹ and the new Foreign Subsidies Regulation, which extends EU state aid rules to non-EU countries,Footnote ¹⁶² exemplify this strategy. Measures like these will often be easier to agree on than a general sports law, as the range of substantive issues and, consequently, the scope for political disagreement are more confined. However, they also have a limited reach and, consequently, make it harder to set out a consistent regulatory framework. One risks ending up getting bits and pieces of regulation which do not necessarily follow an overarching idea or, in the case of non-sport specific legislation, may not even consider football-related concerns during the legislative process, raising the specter of ill-fitting requirements.

F. How to Get There: Coalitions, Crises and Change

Arguing for more extensive regulation of football in the form of EU legislation may appear, at once, overdue and anachronistic. Overdue because the death of self-regulation was pronounced decades ago by scholars like Moran, who noted that “we regulate when we cease to trust.”Footnote ¹⁶³ That the world of sports has been allowed to continue on the path of self-regulation to such a significant extent and for such a long period of time—despite giving us so many reasons for ceasing to trust—is astonishing. At the same time, the case for publicly enforced legislation may feel oddly outdated. Regulatory theory and practice have moved away from “command and control” type regulation towards hybrid, polycentric, and decentralized models.Footnote ¹⁶⁴ Although different approaches have emerged, their leitmotif is that the state’s regulatory role is minimized while that of private actors is increased. Legislation increasing the role of the EU, which is not a state but a state-like polity, would seemingly run against this trend. The two observations are not necessarily contradictory, though. The effect of European legislation would be to regulate certain fundamental aspects of football governance, while leaving federations autonomy in other matters. This would insert an element of public regulation and curtail the scope for self-regulation, in line with Moran’s thesis. However, the eventual system would contain elements of both public and self-regulation, in line with modern regulatory conceptions. So even if the vantage point may be different, the finishing point could be comparable: Some government control alongside some private regulation.

Perhaps a more significant question is whether the EU would have the political authority for such an intervention. The Union has frequently been criticized for over-regulating; indeed, for regulating certain fields at all. Does it have the necessary legitimacy to enter the football arena? This is a delicate issue, but one that need not prove an insurmountable obstacle. The times where the EU mostly occupied itself with technical details of economic regulation are long gone. We are seeing an increasing number of successful EU legislative projects completed on topics of high salience, such as digital services, social policy, and gender equality.Footnote ¹⁶⁵ Tackling a sensitive policy field such as football would, in this light, not be unusual. In fact, the already high level of Europeanisation of the sector, in terms of both the transnational activity of fans, players, and clubs as well as the growing amount of European case law, makes it a fertile ground for stronger EU regulation. What is more, there could be a democratic dividend. Maduro puts this sharply, stating the Union “can reinstate democratic control over a form of private regulatory power that Member States cannot effectively regulate and scrutinize on their own.”Footnote ¹⁶⁶ No single country can take on UEFA and FIFA, but the EU may be able to.

The EU would, of course, have to decide internally whether to invest the necessary efforts into an undertaking of this magnitude. Political capital is scarce, regulatory endeavors need to be wisely picked. This truism applies to the present-day Union with particular force. After over a decade of stumbling from one crisis to the next, amplified by the rise of geopolitical tensions, EU institutions have increasingly difficult choices to make both in terms of what they do and how they do it. Saving football may, at first sight, not look like a priority. Although there is no doubt that there is a myriad of other issues requiring EU attention, it would be a mistake to dismiss this one too quickly. Football matters socially, politically, and financially. Where the game thrives, it forms an influential cultural practice which contributes to identity building, social cohesion, and economic prosperity. Where it fails, it exerts negative effects not only on actors directly involved in the game, but also local as well as, more and more, global communities.Footnote ¹⁶⁷ The sport has become too important to be left unregulated.

What, then, needs to happen for EU legislation in this area to materialize? This, in many ways, is the million-euro question. It brings us back to the starting point of the Article, the observation that the EU has, so far, not fulfilled its regulatory potential when it comes to football. Although there is certainly no readymade path, existing research on sports regulation can help identify strategies for how to change this state of affairs. The most in-depth work on the topic has been done by Geeraert.Footnote ¹⁶⁸ Drawing on a principal-agent model, he found that—in addition to the size of the internal market—regulatory capacity and cohesiveness are the main factors determining the success of EU control of sports governing bodies. The better developed both dimensions are, the more credible the threat of EU sanctions becomes, thus strengthening regulatory impact. Football authorities can mitigate EU control by manipulating the preferences of the European Commission, Parliament, and Member States through lobbying and reprisals, as well as by appeasing aggravated football stakeholders through favors and compromises. These insights can be usefully combined with the recent work on regulatory capture. Meier, Garcia, Yilmaz & Chakawata have shown that football governing bodies have managed to influence the EU political process by relying on the Commission’s self-understanding as a “legitimacy maximiser” which avoids unpopular conflicts.Footnote ¹⁶⁹ They make use of the interest heterogeneity among football stakeholders and invoke socio-cultural ideals to shield the sport from regulatory intervention.

Based on the above, we can envisage three basic steps that would, in one form or another, need to take place before European sports legislation—and greater regulatory involvement in general—can emerge. The first is intensified coalition building. If an EU Sports Act is meant to see the light of day, different actors will need to be convinced of its appeal. This notably includes national governments, the Commission, the Parliament, the general public, as well as the world of football itself. The concept of advocacy coalitions, developed by Sabatier,Footnote ¹⁷⁰ was introduced into the scholarship on EU sports law by Parrish, who argued that there were two competing forces which shape EU action here: the single market, or “football business,” coalition and the socio-cultural, or “sporting autonomy,” coalition.Footnote ¹⁷¹ Whereas the former sees sport as a commercial activity to which the principles of internal market law should be applied with the ultimate objective of de-regulating the sector, the latter believes that sport is a specific socio-cultural activity which needs to be exempt from EU rules. Doubts have been voiced as to whether these coalitions ever existed in their pure form,Footnote ¹⁷² but even if they did, the project of reforming football through EU regulation would require a different advocacy setup, one which combines elements of both of Parrish’s groups. This “regulatory reform” coalition would, on the one hand, need to embrace the belief that football should adhere to certain normative values, such as good governance, gender equality, financial solidarity, and fan representation, thus resembling the socio-cultural coalition. On the other hand, it would need to aim at protecting these values through EU regulation, thus resembling the single market coalition.

Who could be part of this new coalition? One major constituency is likely to lie in the many stakeholders who are currently under-represented in, or profit little from, existing football structures: Associations with a strong(er) moral compass,Footnote ¹⁷³ leagues and clubs at Europe’s periphery, fans not given a voice in matters of football governance, as well as female players and officials. Another important group is ordinary citizens who are no longer willing to tolerate the ethical, social, and financial problems that football creates. This coalition of regulatory reformists would need to start, first of all, by advocating for its cause within the world of football and society at large, then put pressure on higher-ranked institutional actors. Athletes, fans, and citizens would have to convince national associations and governments, which would subsequently exert pressure in the Council. A similar, bottom-up advocacy chain could reach the Commission and Parliament. Once the reform movement would become sufficiently strong, its demands could make it into Parliament as a reflection of popular will, or a critical mass, and relieve some of the anxieties the Commission may have in its function as “legitimacy maximiser.” As the US experience with regulating the International Olympic Committee after the Salt Lake City scandal and the football governance legislation in the UK show, lawmakers will step in where they anticipate political gains which, in turn, depend on the visibility of and support for a cause.Footnote ¹⁷⁴

The second step on the road towards EU regulation would, in all likelihood, have to be the occurrence of a crisis. Given the well-established power structures within football, coalition building is improbable to suffice in and of itself as a means to prompt change. We know from general regulatory theory that crises or “focusing events”Footnote ¹⁷⁵ can be a powerful catalyst for reform and have proven to put an end to self-regulation in many sectors.Footnote ¹⁷⁶ There is no reason to think that the link between reform and crisis should be any weaker in football. The institutional reforms of FIFA were triggered by large-scale investigations into corruption within the organization, the latest changes of the French Sports Code were inspired by governance failures in the domestic football system, and the government review of English football was explicitly justified by reference to several “points of crisis in the national game.”Footnote ¹⁷⁷ More specifically in relation to EU sports law and policy, it has been observed that football authorities need to “demonstrate their trustworthiness to the EU institutions to significantly influence [their] preferences”.Footnote ¹⁷⁸ Against this backdrop, events casting federations in a problematic light, such as instances of significant financial or ethical wrongdoings, are consequential as they, simultaneously, increase the demand for regulation and decrease the ability of football governing bodies to push back against it.

In hindsight, the 2015 corruption case probably presented the best opportunity to serve as such a focusing event and inspire an expansion of European regulatory oversight of football. Every political institution of the EU voiced their discontent with sport governance standards and called for reform.Footnote ¹⁷⁹ The years leading up to the Qatar World Cup were another chance, with public dissatisfaction with FIFA reaching extraordinarily high levels. In the meantime, the Super League controversy has made reform efforts more challenging. On the one hand, it shows that the power of UEFA and national associations has weakened. On the other hand, it has led the EU and the Member States to rally behind the football pyramid, as symbolically illustrated by the Superleague hearings before the CJEU where every single of the twenty-two intervening Member States, an all-time record, sided with the federations. This has added to the cognitive legitimacy of existing governing bodies, presenting them as the saviors of all that is worthwhile about the game, not as a major cause of many of the problems it is experiencing. But, the way things look, the next crisis will come—and it will have to be used by the reform coalition with greater determination.

The third and final step will be the actual reform. At this point, legislative proposals prepared in advance should be taken out of the drawer. As explained, many stars will have to align to get to this stage. Lawmaking is a famously complex and incalculable endeavor. The best legislative projects can fail, but already serious consideration of legislation might have a palpable effect. The UK experience with the fan-led review is instructive in this context. The mere publication of the review’s report—and the prospect of government-sponsored legislation embracing its findings—led the Premier League to strengthen its policing of financial fairplayFootnote ¹⁸⁰ and improve fan involvement,Footnote ¹⁸¹ aspects that featured prominently in the recommendations. Operating in the “shadow of hierarchy”Footnote ¹⁸² can be a powerful incentive for self-improvement. Yet, to effect lasting change, a credible threat of sanctions must be sustained. This, in turn, requires “hierarchy” to step out of the shadows on occasion.