A. The Europeanisation of football

The Europeanisation of football, wherein ‘European’ elements have been introduced and internalised in the national structure of football, has been traced by an extensive literature, usually highlighting three dimensions.Footnote ⁸ A first is the explosion in consumption of media and football matches across Europe. While we type this, we could watch the match between Suduva and Zalgiris Vilnius in the Lithuanian league with a few clicks on our computers. In particular the biggest leagues, such as the English Premier League, the Spanish Primera Division, the Italian Serie A and the German Bundesliga, are watched by millions of people across Europe and, indeed, the world. The final stages of the Champions League yearly rank as the highest-watched televised events in every single Member State.Footnote ⁹ This means that fans, in particular those from the younger generations, no longer need to live ‘locally’ in order to follow and support a club and be engaged in fandom. As has become clear from research, fandom increasingly also manifests itself through online forums, through YouTube channels, through fan groups wherein fans of, say, FC Barcelona come together every week in Brussels to watch matches in local bars, and so on.Footnote ¹⁰ In a way, Europeanisation disconnects football fandom from the physical locality of where the football club is based, although research suggests that even ‘remote’ fans have strong affective ties to the local context of a club, cultivated though narratives of collective identity and the mystique associated with occasional visits to the stadium.Footnote ¹¹

The same dynamics are also visible in the second aspect of Europeanisation: the creation of trans-European club competitions. Originally conceived in 1955, today three such competitions exist: the UEFA Champions League, Europa League and Conference League. The best-placed teams from national competitions qualify for these leagues, wherein teams compete (alongside playing in national leagues) with teams across Europe. Just to give a sense of what this means, in the 2021–22 season that included, in the group stages, matches such as Sporting Lisbon–Ajax Amsterdam, Legia Warszawa–Napoli, and FC København–PAOK Saloniki. The creation of such European competitions exposes fans to even more of ‘Europe’: whether in travelling to other countries to support their teams, in seeing other European teams against which their favourite teams play or in following these high-profile competitions on TV and in the media.Footnote ¹² These matches in European club competitions are rich in symbolism as well, ranging from anthems to flags and specific sponsorship deals.Footnote ¹³ Even if only a country’s best teams qualify for European football, fans from other teams do not understand European football as a competition limited to the clubs competing in them, but as a competition for clubs representing their countries, which also implicates fans of non-competing clubs.Footnote ¹⁴ In the meantime, being successful ‘in Europe’, as a club, has become more prestigious (as well as lucrative and difficult) than being successful ‘at home’.Footnote ¹⁵ Europe, then, in the mind of the football fan, has come to signify elements of exoticism, conquest and prestige, adding an additional layer of competition and fandom to the one on the national level.

A third process of Europeanisation of football, more directly related to its legal regulation, is the increase in mobility of football players. Until the 1995 Bosman ruling of the CJEU (which will be discussed in greater detail below),Footnote ¹⁶ UEFA restricted the number of non-national players within a team and imposed transfer fee requirements even for out-of-contract players.Footnote ¹⁷ The Court’s decision to overturn these rules dramatically sped up the mobility of football players throughout the EU, so much so that a few years after the ruling many teams were composed mainly of European non-nationals. In 1999, Chelsea, a team based in London, started a match without a single English player (instead relying on Dutch, Spanish, French, Romanian, Italian and Norwegian players).Footnote ¹⁸ At the start of the 2020–21 season, of the 220 players starting in the first match rounds in the Premier League, 76 were English, a proportion of 35 per cent. In Italy, this proportion was 37 per cent (82 Italians out of 220). At the European Championship held in 2021, only 37 per cent of players selected represented clubs from their domestic leagues.Footnote ¹⁹ This reality, that the majority of players in any given team tend to be non-nationals, has evidently had an impact on the fans’ frame of reference and identification with things European. As research suggests, the changes in the composition of clubs in terms of nationality have had little or no effect on the fans’ identification with the players.Footnote ²⁰ What appears to matter is the quality and loyalty of the player, not their nationality. As such, central figures in fans’ identification with a club, such as the manager, captain and top goal scorers have increasingly carried a nationality different from the team for which they play. More than that, an element of ‘cognitive migration’ has emerged, wherein the mere possibility of a club signing players from other nationalities or other leagues makes fans take notice of such transnational elements.Footnote ²¹ This way of encountering ‘the other’ has done much to infuse local football identity and culture with a European flavour.

The threefold Europeanisation of football can best be understood as a process of change and rescaling. It bears emphasising that this change is not always frictionless. Many of the developments discussed above, such as the creation of European club competitions and the Bosman ruling, have initially been heavily contested by fans and criticised as breaking with established tradition and endangering the very nature of football.Footnote ²² The process of Europeanisation, moreover, has contributed to a number of substantive changes to football, such as changes in the composition of the fan base, with both class and nationality components becoming visible;Footnote ²³ a significant increase in the commercialisation of both domestic and European football;Footnote ²⁴ and a decrease in the number of teams that are sufficiently successful to be able to compete in European competitions on a regular basis.Footnote ²⁵ It is difficult, however, in analysing these developments, to disentangle the causal effect of Europeanisation from other exogenous pressures on the world of football, such as globalisation, technological innovations and the commodification of sport in general. The pushback against the latest and most aggressive form of Europeanisation, the European Super League, is illustrative in this context, but not an isolated incident: these criticisms have been levied against UEFA, in particular in the context of the Champions League, for years. The main rhetorical elements here concentrate on, on the one hand, the fans’ spiritual ownership of the club (‘the club belongs to the fans’, ‘owners are but temporary custodians of our heritage’) and, on the other hand, references to football tradition, authenticity and the centrality of competition in the rejection of a semi-closed league. However, few fans, if any, took issue with the fact that this was a European Super League. Somehow, the reference to ‘Europe’ has become dramatically less contentious in football, even at times where contestation of the EU as such has reached a high mark.

It is worth exploring, then, how this process of adaptation and Europeanisation has taken place and which lessons follow for the ESL project and the future of football in Europe. In this section, we propose two starting points to understand the changes which the Europeanisation of football has brought. The first is in focusing on the spatial changes: how local or national identities have dealt with the increase in European elements in football. The second lies in focusing on temporal dynamics, and in particular on the way in claims of ‘the past’ are employed to negotiate changes in football due to Europeanisation.

B. Local, national and European dynamics

If we analyse the Europeanisation of football from a spatial perspective, we can understand it as a process of change wherein local symbols of affect and identity are imbued with a European element. The work of scholars such as Kathleen McNamara, who have focused on how everyday, often subconscious, interactions of citizens with ‘Europe’ affect their understanding of themselves, their life-world and their relationship with the EU, is an interesting starting point.Footnote ²⁶ This work emphasises a number of technologies through which this process occurs, which include ‘localisation’ and ‘encoding’, and which lead to rescaling of citizens’ frames of reference and their imagined communities of belonging.Footnote ²⁷ Localisation takes place by imbuing national (or local) symbols and practices with a European context, so that Europe becomes deeply enmeshed with these powerful emblems of local authority. A football club’s character, deeply rooted in a local context full of history and folklore, deeply wedded to a specific geographical space, becomes, as such, imbued with European elements when their striker is Austrian, their captain Greek and their manager Portuguese. This process of localisation, in other words, focuses on contextualising rather than challenging pre-existing identities, symbols, points of reference and practices. It makes the ‘Europeanness’ of daily life almost invisible: we relate to these powerful symbols of authority without appreciating the nuanced changes to their context. This type of ‘enhabitation’ or ‘acting out’ of Europe solidifies its authority.Footnote ²⁸

The process of ‘encoding’, on the other hand, suggests that non-elite perceptions of Europe are generated as a side-product of how citizens live in and view the world. This form of Europeanisation suggests that as our interactions with ‘things European’ – whether a holiday abroad, a meeting with a Polish person in a supermarket in Madrid or, indeed, the signing of a new Hungarian midfielder by your local football team in Copenhagen – become more important once we embed them in the way we narrate our lives; from the most banal narrations and memories and jokes to the most formative of experiences.Footnote ²⁹ In this way, European aspects of daily life become more central to people’s self-identification, their way of looking at the world and making sense of it, which becomes particularly powerful when these become part of shared narratives within specific sub-cultures or demographiesFootnote ³⁰ – something common in football, whether centring on a famous European away match, a useless but charismatic Dutch midfielder or the glorious stint of an Italian manager in the 1980s.

What these processes of localisation and encoding do is to change the way in which citizens think, by subtly altering their frames of reference and imagined communities of belonging from ones that are predominantly national (or, in football, more often than not, local) to include European elements. The idea, in short, is that everyday interactions with ‘things European’, on the one hand, create a type of social legitimacy or authority for the EU and, on the other hand, offer a framework for understanding the process of rescaling and the subjects’ role in it. For the purposes of this paper, we are most interested in the latter, even if research suggest that the former also takes place in football: the exposure to ‘things European’ does enhance a diffuse, or banal, sense of European identity.Footnote ³¹ How can we trace the process of Europeanisation in football, then? How is it possible that, despite the initial grumblings of fans, both the European club competitions and the high player mobility within the EU are largely seen as positive developments? How do the processes of localisation and encoding stabilise processes of change and rescaling in football?

Approached from the spatial perspective, one insight stands out in the literature on the effect of Bosman and the establishment of European club competitions. The relative success of both can be explained by the fact that both are celebrations of and not challenges to the deeply rooted local character of football. This comes through in three ways. The first is in the way in which Europe has become part of a club’s and their fans’ identity. This takes place by encoding success (or even mere hope of participation) in European club competitions in heritage stories,Footnote ³² by the exoticism connected with fans’ travel to European matches across the continentFootnote ³³ and by the diverse nationalities of players who have become fans favourites or have played a crucial role in the club’s recent history and successes.Footnote ³⁴ All these processes imbue the identity of a club – often rooted in a local, regional or national context – with European elements without threatening the former.Footnote ³⁵ They serve as a way to renegotiate identities in the context of Europeanisation, and how the ‘other’ relates to what is ‘self’ or ‘local’.Footnote ³⁶ More than that, ‘Europe’ comes with a type of reflexive quality, wherein the ‘local’ is projected outwards to the rest of Europe (for example through successes in European football of a club in Catalonia)Footnote ³⁷ while simultaneously internalised by the positioning of certain clubs as more European or cosmopolitan than their rivals.Footnote ³⁸ Europe, then, in different ways and to different degrees, has increasingly become a reference point for the self-understanding of clubs and their fans – not as a counterpoint against which to project their local identity or character but as part of that identity and character.Footnote ³⁹

A second insight from the literature focuses on the way in which ‘Europe’ is secondary to the local or national level not just conceptually but also in terms of sporting merit. This is so because qualification for participation in European football competition depends on a club’s performance domestically. The latter is, in a way, the gatekeeper for the former, which also explains why clubs are often seen as ‘representing’ a national league when they play European football, and, in fact do ‘represent’ the domestic league in so far as their performances in European football affect the number of clubs accessing the European competitions per league.Footnote ⁴⁰ As the research suggests, playing ‘in Europe’ thereby becomes an objective, an achievement, a dream for many clubs and their fans. It feeds the narratives of exoticism and conquest that chime well, of course, with the competitive nature of sports more generally.Footnote ⁴¹ It is also, at the same time, a commitment to take seriously the diversity of Europe regardless of the levels of performance of national leagues. The fact that the Andorran champion gets a place in the preliminary stages of the Champions League makes little sporting sense and can be explained only by a deeply seated sensitivity that what matters on the local level and to local fans must be fed into the European football competitions and not removed from it. But as the research suggests, this comes with a dark side. There is a degree of stratification visible in European football, wherein participation and success in European club competitions has become normal for some clubs and elusive for many others. For fans of these latter clubs, European football (and, by implication, ‘Europe’) is increasingly seen as something that is unconnected to their own experience of football, as something that excludes and even undermines the tradition of national or local football competitions by generating additional revenue for the top teams, which further entrenches their hold on domestic success and participation in European football.Footnote ⁴² Interestingly, these tensions in the competition between the successful and rich clubs and the smaller and less affluent clubs are a staple of football on the national level, too. It is telling that almost all national leagues have significant redistribution mechanisms that are meant to ensure that success cannot be bought and that smaller clubs retain the possibility, or at least the illusion, that successes, such as qualification for European football, remain possible with sound technical and personnel choices.Footnote ⁴³ In football, it seems, merit presupposes competition, which in turn presupposes financial redistribution. The same seems to apply on the European level, in so far as the possibility of qualification for European football of a wide diversity of clubs remains a presupposition for a positive identification of all fans with ‘Europe’.Footnote ⁴⁴ Again, here, the dynamic is quite striking: Europe is a positive association for fans where it is a celebration of (success on) the local or national level, not a threat to it.

From this perspective, it appears that the Europeanisation of football is a process for the renegotiation of spatial identities in a way that enhances the idea and importance of place (and of ‘the local’) in the experience of football. The greater geographical distance between the fan and their favourite club, the greater diversity of the nationality of the players and the greater distribution of the locations of matches is overcome by ensuring that the growing European context is firmly rooted in local identities, which, themselves, evolve to internalise the outside context. In other words, the productive internalisation of the process of Europeanisation depends on it remaining an additional layer to, and not a substitution of, the local and national context within which football has historically grown.

C. Europeanisation and the past

The pushback against the ESL brought into sharp focus the extent to which the affective dimension of football is also tied up with temporal elements, highlighting the perpetual and spiritual ownership of the club in the hands of the fans – a claim that outlasts changes in ownership, periods of failure or success and even generations of fans – as well as often referencing footballing tradition and authenticity rooted in the past. The Crouch Report, an independent fan-led review of English football carried out by Tracey Crouch MP, for example, highlights how ‘owners as temporary custodians of a community asset come and go but fans are forever’ and that existing ‘protections of key club heritage items of great cultural and emotional value to fans is not sufficient’.Footnote ⁴⁵ Temporal evocations are central here, and constitutive in the renegotiation of identities, in the sense that the emphasis on practices, customs and symbols from ‘the past’ are often used to imbue the present and future with particular values.Footnote ⁴⁶ As such, references by fans, football executives or the media to a certain form of footballing tradition or a club’s particular ‘authentic’ past are not claims about the past, but about the present and future of football and its clubs.Footnote ⁴⁷ They are tools used to assemble and reassemble influence, power, control and autonomy of the different actors involved in football.

Critical heritage studies have, in recent years, come to emphasise the ongoing professionalisation of the management of sites of heritage – be it town centres, food production or sporting heritage – and its ensuing commodification.Footnote ⁴⁸ What is of interest, here, is that this process has led to the marginalisation from decision-making processes of actors who, on a daily basis, engage with sites of heritage as a mundane rather than commodified experience.Footnote ⁴⁹ The ensuing tension between how different groups seek to appropriate heritage is perhaps most visible where such heritage is tangible: think of the struggle of cities to manage the liveability of town centres for residents faced with an onslaught of tourism (a process that, incidentally, EU law is central to as well).Footnote ⁵⁰ But the same tension clearly arises where the heritage is largely intangible, such as in football: how can claims of ‘ordinary’ fans about a club’s past be understood against the backdrop of the increased professionalisation and commercialisation of that club’s management? Authors such as Rodney Harrison and Laurajane Smith suggest that processes of rescaling are inevitably fraught from the subject’s perspective, as it leads to a degree of instability about the almost primordial elements in one’s identity, both metaphorically and practically. The most legitimate method for a meaningful renegotiation of space and time, in their view, requires us to be sensitive to the relational commitments that underlie a particular heritage site.

This might sound more complicated than it is. In simple terms, heritage is, in their view, something that different actors approach differently because they have different interests and relationships to it: sometimes this relationship is primarily practical, cultural, social or economic; sometimes they engage with it in a professional capacity, as a passive consumer or an active defender. The management board of Manchester United has different interests from many of its fans (which, internally, are of course also divided, partially due to age, geographical location or temperament),Footnote ⁵¹ from local inhabitants and from the footballing authorities. In consequence, each employs different symbols, events or practices from its past to secure their vision of the future of football and of the club. What heritage studies suggests is that we need to look beyond this antagonistic perspective and instead create ‘dialogical models of heritage decision-making in hybrid forums, which break down the conventional barriers between experts, politicians, bureaucrats and interested laypersons or stakeholders’.Footnote ⁵² Such forums, the thinking goes, break the hold of professionals over the renegotiation of change – it brings, in a way, heritage back to life as something that is actively recreated by actors rather than carefully managed by experts.Footnote ⁵³ The Crouch Report embraces this approach when proposing that ‘clubs consider multiple engagement strategies, including town hall style forums, structured dialogue, fan elected directors, Shadow Boards and supporter shareholders.’Footnote ⁵⁴

What this suggests is that the drivers of processes of rescaling such as the Europeanisation of football matter. Two immediate differences between the more successful examples of Europeanisation and the less successful ESL project are clear. First, in opposition to the ESL – whose drivers, the owners of the 12 clubs involved, were highly visible and quickly isolated – the creation of European club competitions or the Bosman ruling cannot easily be attributed to specific persons. This is an example of the process of ‘deracination’, in which change is presented in abstract and technical terms, rather than anchored in more emotionally loaded registers.Footnote ⁵⁵ A ruling by the CJEU on the free movement of workers is approached differently than a secretive decision of twelve owners to start their own league. At the same time, this does not mean that such a ruling is necessarily unrepresentative. Given the limited extent to which some stakeholders are involved in football governance structures at present, a CJEU decision might be better at giving voice to and internalising the competing interests of fans, players, clubs, federations and associations than the football authorities themselves can. Likewise, some of the first responses to the ESL, such as the mooted creation of an independent regulator for football, are not necessarily more representative and less problematic – it simply shifts power to yet another layer of ‘experts’ to the detriment of a genuinely representative and participatory model of heritage management.

Second, the changes brought about by the creation of European club competitions and the enhanced player mobility after Bosman still left a large degree of autonomy for the clubs to negotiate the changes internally, in a process that more or less explicitly involved management, fan representatives, players, local communities and others. A club like Athletic de Bilbao, for example, deliberately and explicitly only employs players of Basque origin (whether officially French, Spanish, or a Bilbao-born son of Ghanaian parents who crossed the Sahara on foot to get to MelillaFootnote ⁵⁶) as part of their heritage and understanding of their role in the community. A host of Spanish and German clubs have historically committed to giving fans a voice in core management decisions, an objective echoed in the Crouch Report which recommends that every club have a Shadow Board composed of fans that is consulted on core decisions, some of which can be vetoed using the Golden Share. Research suggests that different clubs and fans have embraced the European element to different extents, as an articulation of one of the many components of their heritage and what it means to be a fan of a specific club.Footnote ⁵⁷ In some clubs, this process of adaptation and internalisation is explicit, in so far as they see themselves and their club as almost constitutively wedded to a more European or cosmopolitan perspective.Footnote ⁵⁸ In other instances, this organic or bottom-up process of adaptation to and renegotiation of the changes brought about by the Europeanisation of football takes more implicit forms. After decades of Europeanisation, however, it is safe to say that all clubs have gone through a process of internal realignment of their identity, whether driven by a particularly successful stint of a Belgian midfielder in Spain, an incipient rivalry in European club competitions, the growth of fan networks and fan engagement in online forums across Europe, seeing their players perform for their country in European or World Cups, or simply dreaming of reaching the preliminary stages of the European Conference Cup.Footnote ⁵⁹ All these are examples of ways in which the changes brought about through Europeanisation are internalised or normalised by the engagement of a wide diversity of stakeholders involved in football. What matters, for our purposes, is the organic nature of this process: it is not imposed but instead acted out through the club.Footnote ⁶⁰ This does not mean that this process is necessarily harmonious within clubs or uniform across them: some stakeholders embrace the transnational elements while others are sceptical; some actors play more explicit roles than others; some choices have an immediate impact while others have a longer shadow.Footnote ⁶¹ What remains, however, is that this process of renegotiation about the identity of a club, its heritage and tradition involves, in one form or another, all the diverse actors that relate to it on an affective level.Footnote ⁶²

A. Social function

In many ways, the meeting of EU law and football is a clash of rationales. The former is based on the ideas of free movement, non-discrimination and a Europe-wide market without borders. The latter’s basic units of organisation are leagues that are divided along geographic lines; its showpieces are tournaments in which national teams face each other; and many of its aficionados have a distinctly local orientation, not caring about the sheer endless possibilities that an internal market, in theory, offers them. The EU has tried to navigate this delicate space by accommodating some of the specificities of football which distinguish it from other ‘ordinary’ sectors, while protecting key EU interests and principles. One of these particularities is the strong embeddedness of football in the national and local socio-cultural fabric. This embeddedness was prominently recognised in the Amsterdam Declaration which ‘emphasise[d] the social significance of sport, in particular its role in forging identity and bringing people together’.^{Footnote 66} It is similarly, if more cryptically, reflected in the wording of Article 165 TFEU which commits the Union to take account of the ‘social function’ of sport.

Perhaps the most visible way in which this peculiarity – and the tension which it creates with EU law – has come to the fore is in the regulation of the fielding of players. Both national and international federations have laid down rules on the players a team can put on the pitch (or bench), and these rules tend to restrict free movement. The first time this became apparent was in Donà, a case decided by the Court of Justice in the mid-1970s.Footnote ⁶⁷ A football scout brought a complaint against the rules of the Italian football federation whereby only players who were affiliated to the federation could participate in matches, with membership only being open to Italians. Reiterating the principles established in the earlier Walrave and Koch ruling,Footnote ⁶⁸ the Court started by saying that professional football came into the scope of the European Treaties as it constituted an economic activity. Consequently, football federations, despite being private entities, had to comply with the free movement rules and the principle of non-discrimination. Measures restricting this principle, for instance by excluding foreign players from matches, were only possible for reasons which were ‘not of an economic nature’ and of purely ‘sporting interest’, but they had to ‘remain limited to [their] proper objective’.Footnote ⁶⁹ According to the Court, rules limiting participation of foreigners in international games were thus protected as a means to facilitate competitions between national teams – a huge concession, given that non-discrimination on grounds of nationality constitutes a fundamental principle of free movement law. Whether and to what extent, by contrast, rules limiting their participation in domestic league games were justified, the Court left for the referring judge to decide.

Two decades later, the CJEU was less ambiguous in Bosman.Footnote ⁷⁰ Proceedings brought by Belgian midfielder Jean-Marc Bosman raised the issue of whether two aspects of UEFA’s regulations were compatible with EU free movement law. One of them was the ‘3+2’-Rule, which stipulated that clubs could only have up to three foreign and two ‘assimilated’ players (who had played in the domestic league for at least five years) on their team sheet. The Court had no trouble finding that the quotas for foreign players constituted a restriction on freedom of movement; this was a clear instance of direct discrimination. UEFA tried to justify the rules, inter alia, by arguing that they were necessary to maintain the traditional link between a club and its country. Limiting the role of foreign players was crucial so that supporters could identify with their team and that clubs taking part in European competitions would be perceived to represent their country. The Court was sceptical. It was not willing to accept that football clubs, like national teams, had to be connected with their fanbase through the bond of nationality.Footnote ⁷¹ Fans were able to identify with their local clubs although these recruited players from all parts of the country, not just their immediate surroundings. It was not evident why this should be different with regard to players from abroad.

UEFA abolished the nationality quotas after Bosman, but the underlying tensions have not vanished. In the mid-2000s, the Homegrown Player or ‘4+4’-Rule was adopted, which requires teams to have a minimum of eight locally trained (but not necessarily national) players in their squad, four of whom must be from the club’s own academy. The system carries more than a little resemblance with the pre-Bosman regime and is motivated by the same concerns. Several scholars have, therefore, questioned its compatibility with free movement law;Footnote ⁷² recently, Royal Antwerp Football Club has initiated legal action against it.Footnote ⁷³ Yet both the Commission and the EU Parliament have expressed the view that the rule constitutes a justified and proportionate measure to promote training of young footballers.Footnote ⁷⁴ The finding is a clear demonstration of the special status that football enjoys in the EU and the power yielded by UEFA when it comes to negotiating political limits to the application of EU legal rules. Requiring employees to have a local connection with their employer would be unthinkable in most other industries, as it would amount to indirect discrimination. It is hard to imagine laws forcing supermarkets, banks or dry cleaners to hire staff that has been schooled in the vicinity of the workplace being held to be compatible with the free movement rules.

EU action in this area also shows how difficult it is to pin down what exactly the ‘social function’ of football is and how to translate it into workable regulatory arrangements. Rules like the pre-Bosman transfer regime or the Homegrown Player system rely on the assumption that football requires a certain link between players and their fans/teams. This link is meant to create a feeling of common identity, which is believed to be essential for fully enjoying the game or supporting a club. The ‘3+2’-Rule operationalised that bond bluntly via the criterion of nationality (the idea being: we feel closer to our fellow citizens) and a combination of ‘being and time’ (we feel close to those who have been around us for long enough).Footnote ⁷⁵ The ‘4+4’-Rule uses the slightly more refined idea of local provenance which privileges those brought up in the – national or local – vicinity, no matter where their origins lie. (Although its practical effect has been that wealthy clubs simply secure the services of footballers at a younger age to make them eligible as homegrown players.) Both, however, ultimately remain crude approximations for what it means to be connected to a club and its fanbase, as the findings of the previous section show.

B. Financial solidarity and competitive balance

A second particularity of football that has emerged in its encounter with EU law is the relevance of protecting financial solidarity and, relatedly, ensuring a competitive balance. Companies operating in most economic sectors neither have the obligation nor the desire to subsidise their competitors. By contrast, the football pyramid has in-built redistribution mechanisms which are aimed at ensuring a degree of both vertical solidarity, ie between higher and lower tiers (including professional and amateur football), and horizontal solidarity, ie between clubs competing at the same level.Footnote ⁷⁶ These are translated into a variety of rules that affect different aspects of football and typically, from the perspective of EU law, constitute restrictions on free movement or competition.

One of them is the transfer system. Footballers rarely spend their entire career playing for the same club and change allegiances at least a few times. This raises some economic as well as redistributive issues. The aforementioned Bosman case put them in the spotlight. In addition to the national quotas, the applicant alleged that the transfer system that was in place across Europe violated the free movement of workers. The then-binding rules made it effectively impossible for players to leave their club without a transfer fee, even after the expiration of their contract. The fee was, unlike the nationality quotas, not discriminatory, but the Court saw in it an obstacle to market access as players might be in the position of being unable to join a foreign side. However, UEFA argued that the system was necessary to ensure that affluent teams did not poach all the quality footballers from their rivals and that smaller teams had incentives to train young players as they could expect a compensation for their efforts. The Court accepted these motivations as justified:

Clubs need credible opponents: this is true in a banal sense, as you cannot play football with one team only; but it is also true in a more substantive sense, as every match and competition requires some uncertainty of result which, in turn, presupposes an approximate balance of forces.Footnote ⁷⁸ Also, the world of football relies on a steady supply of new talent, which typically develops in lower-tiered or smaller sides before joining bigger clubs. Hence, the objectives advanced by UEFA were legitimate. Yet the actual transfer system also had to be a proportionate means of pursuing these. The Court was not convinced that requiring a transfer fee after the end of a player’s contract would prevent rich clubs from securing the services of the best players and, thus, gain an advantage over their competitors. If you had the money, you would still end up signing the player. Nor did it think that the fee would contribute to greater investment in young athletes, given the disconnect between the fee charged and the actual training costs of a player.

After the Bosman ruling, FIFA and UEFA reached an agreement with the Commission on a reformed transfer system, in a process that involved the participation of the players’ organisation FifPro.Footnote ⁷⁹ Yet many of the underlying tensions have periodically resurfaced. This especially concerns the rules on compensation fees for young players. In Bernard, a French scheme for young talented footballers was challenged before the Court.Footnote ⁸⁰ Under its rules, players between the ages of 16 and 22 were employed by professional clubs as trainees under a fixed-term contract and had, at the end of the training period, the obligation to sign their first professional contract with that club. There was no compensation mechanism for players who trained with one team and then signed with another; instead, the player and their new side could be sued for damages. Again, the rationale was to encourage the training of youngsters and, again, the Court accepted as legitimate but found the measure to be ill-suited for this purpose because of the hit-and-miss fashion in which it had been designed. Actions for damages were not based on the costs put into training a professional footballer and they could not account for the many uncertainties involved in this process.

The transfer system is not the sole area in which the ideas of financial solidarity and competitive balance shine through. The same is true in the field of broadcasting rights. There has been a sharp increase in revenues from the sale of rights to broadcast football matches over the past three decades, which is the combined result of developments such as the privatisation of the media, the rise of the internet and the spread of football into new markets. Clubs in most federations sell these rights jointly.Footnote ⁸¹ Other than being more practicable than individual selling for competitions involving a high number of actors, collective selling is meant to ensure better redistribution. Revenues are not concentrated among the few high-performing clubs but are spread (more) evenly across all participating clubs to support competitive balance, or at least that is the hope.Footnote ⁸² From an antitrust perspective, this is a serious restriction on competition, which some have called a ‘supply-side cartel’.Footnote ⁸³ Yet, when enquiring into the legality of the practice, the Commission gave it the green light, albeit stipulating limitations. In its decision on the sale of UEFA Champions League rights, the Commission underlined that collective selling was not an indispensable element of football but rather a commercial choice. It was willing to accept this choice under certain circumstances – notably the unbundling of rights, three-year limits for exclusivity and the returning of unexploited rights to clubs – as it came with some benefits for clubs, broadcasters and fans.Footnote ⁸⁴ Financial solidarity was acknowledged as a justifying rationale for joint-selling, even if the decision’s outcome made it unnecessary to probe the degree to which this was achieved. In subsequent proceedings, the same principles were applied to national leagues.Footnote ⁸⁵

C. Integrity of sport

A third concern that permeates EU law and policy on football is the protection of the sport’s integrity. The notion of integrity is one of the most frequently used but, equally, among the least clearly delineated concepts in national and international sports law. In a narrow sense, it refers to the objective of keeping sports ‘clean’ by eliminating factors that can distort fair competition between athletes, such as doping.Footnote ⁸⁶ In a broader sense, it can be understood as protecting sports from all undue external interference, with the aim of ensuring that sporting success reflects sporting merit, not an economic or other type of advantage. This, of course, is connected with the previously discussed idea of promoting fair competition.

There are several ways in which this objective has manifested itself in the EU context. The most direct example is the treatment of restrictions on club ownership. The increase in revenue from broadcasting and merchandising has led to football becoming financially more interesting for investors. UEFA has, on the one hand, actively supported this commercialisation process; on the other, it has made efforts to counteract some of the problematic side-effects. One measure that was adopted for this purpose was the rule on multiple ownership of clubs. Although not outlawing investments into multiple football clubs as such, UEFA prohibited that more than one club controlled by the same person or entity start in any given European competition. The rule’s official title – ‘Integrity of the UEFA club competitions: independence of clubs’ – reveals its rationale. The prohibition was meant to protect clubs from external interference. The worry was that if two teams belonging to one owner would face each other, that owner might exercise undue influence on them. British investment company ENIC, which had majority stakes in a handful of clubs across Europe (and, in addition, was providing betting services), launched an attack against the limitation, arguing that it constituted both an anti-competitive agreement and an abuse of a dominant position. The claim failed before the Court of Arbitration for Sport (CAS), which did not find a breach of EU competition rules,Footnote ⁸⁷ as well as, shortly later, before the Commission, which acknowledged the prohibition’s restrictive effects on economic freedom, but concluded that these were necessary and proportionate to protect the public confidence in the integrity of football.Footnote ⁸⁸ Fair and honest sport competitions were the foundation of football, both as a sport and an economic activity. Multiple ownership created a conflict of interest which could affect a club’s on-pitch performance, notably where two teams controlled by the same person met. Investors might have a financial interest in one of the teams progressing instead of the other and, directly or indirectly, influence the result of the game.

There are not only restrictions on who can purchase clubs, but also on how clubs are run. The most significant limitation in this respect stems from the Financial Fairplay Regulations (FFP) which were introduced in 2012. Their core element is the ‘break-even rule’, which requires that clubs, over a three-year period, do not spend more than they generate in football-related revenues. Teams that do not comply with it can face significant sanctions, up to an exclusion from participating in European competitions. UEFA justified this step by reference to improving the financial stability of football clubs and, in the long run, the sustainability of European football in general.Footnote ⁸⁹ By the same token, it was meant to limit the role of ‘sugar daddies’ and counteract the related issue of ‘financial doping’.Footnote ⁹⁰ Football success was to be earned on the pitch, not bought.Footnote ⁹¹ Whether the current FFP rules are sufficiently robust to achieve these objectives has often been questioned. The FFP Regulations were reformed and softened in 2015, as a reaction to court proceedings brought against them. Legal scholars argued that the system might violate EU competition and, possibly, free movement law.Footnote ⁹² In contrast to this, the Commission has, in a joint statement with UEFA, suggested that the regulations are compatible with EU law as they promote legitimate objectives in a balanced and proportionate way.Footnote ⁹³ The same conclusion was reached by the CAS, which ruled that the FFP rules did not restrict competition or free movement and, even if they did, would be a justified and proportionate means to protect the financial health of football. There has been no determination of the matter by the CJEU yet – and there might never be one. A preliminary reference submitted by a Belgian court in a dispute brought by a football agent (and stewarded by Jean-Marc Dupont, the lawyer behind Bosman) was deemed to be inadmissible.Footnote ⁹⁴

Financial doping can come from private investors, but it can come from the public pursue, too. This issue has, for a long time, flown under the radar,^{Footnote 95} but a concentrated effort of the Commission in the mid-2010s has resulted in the application of EU state aid provisions to public measures taken in the field of football. One group of cases concerned direct financial assistance granted to clubs. In a series of investigations into measures taken by Dutch municipalities in support of ailing local football clubs, ranging from substantial debt waivers to generous loan guarantees, the Commission took the position that most measures constituted state aid which did not meet the requirements of Article 107(3)(c) TFEU and the Rescue and Restructuring Guidelines.Footnote ⁹⁶ The line it took was markedly strict. There was no special treatment: football was approached just like any other industry.Footnote ⁹⁷ The respective authorities had to demonstrate that the clubs were in difficulty, the aid was limited to a minimum, was a one-off and, crucially, that compensatory measures had been taken. How brutal these measures can be is illustrated by cases like Willem II. The aid granted to the club was conditioned on a reduction of the number of players (from 31 to 27) and staff (from 79 to 61), the acceptance of a rigid salary cap (48 per cent of turnover), and a prohibition of making transfer payments.Footnote ⁹⁸ A similar line was pursued in a group of cases concerning Spanish football clubs in relation to tax rebates and other forms of financial support given by local authorities.Footnote ⁹⁹ The Commission’s action in this area – which is likely to be extended to financial flows from third countries in the futureFootnote ¹⁰⁰ – can be seen as an effort to prevent that some clubs are given an undue financial advantage. Favouring selected clubs over others distorts the economic level playing field and, ultimately, is likely to have repercussions further down the line: ‘The more funds clubs have available to attract the best possible players the more success they may have in sport competitions, which promises more revenue’.Footnote ¹⁰¹ Economic research shows that there is a strong link between the amount of money a club can spent on players wages and its success.Footnote ¹⁰² Against this backdrop, it makes sense to apply EU law with its full force here because its objectives overlap with those of football: sporting success should be the result of good performance, not of financial strength.

D. Governance structure

The developments surrounding the ESL mark the latest chapter in the relationship between EU law and football, and they put yet another of football’s particularities in the spotlight: its governance structure. As already explained, football is organised as a pyramid, with FIFA at the top, followed by the continental confederations like UEFA, the national and regional federations, and finally clubs, players and grassroots institutions. There is a hierarchical relationship between the higher and lower tiers, but, in principle, each level exercises ‘exclusive rights’ within its scope of competence. This construct gives UEFA a de facto monopoly over all major decisions concerning European football. By the same token, it means that any decision making or (internal) reform initiative can, in principle, only take place within UEFA’s institutional structure and in abidance with the federation’s procedural mechanisms.

The impact that EU law has had on this structure is best described as complex. On the one hand, EU institutions have contributed to solidifying UEFA’s status. The Commission has cooperated with UEFA on many occasions, some of which were mentioned above.Footnote ¹⁰³ These include the post-1995 overhaul of the European transfer regime and the introduction of the FFP rules, which both resulted in joint statements of the two institutions announcing that an agreement had been reached and that the new rules that were adopted were presumed compatible with European law. Even if the legal status of these agreements has always been ambiguous at best – the transfer rules challenged in Bosman had, for example, been mutually accepted in a similar manner before being struck down by the Court –, their symbolic power should not be underestimated. They provide UEFA with an aura of legitimacy as the ‘control centre’ of European football. The ad hoc cooperation between the Commission and UEFA has, in the meantime, been turned into a permanent one. In 2014 the two signed their first and, four years later, a second cooperation agreement.Footnote ¹⁰⁴ Despite a fair bit of flowery rhetoric,Footnote ¹⁰⁵ the specific policies included in it are limited. Nonetheless, they demonstrate that the EU sees UEFA as its main interlocutor when it comes to European football. The events in the aftermath of the ESL saga have demonstrated this once again, with the EU voicing support for UEFA through measures such as the European Parliament’s resolution on EU sports policy which, somewhat naively, continues to understand European sports federations as allies rather than reluctant partners in the quest to solidify the principles of solidarity, sporting merit, and cooperation with stakeholders including fans.Footnote ¹⁰⁶

On the other hand, and perhaps paradoxically, EU action has led to a tangible weaking of UEFA’s authority. The Court’s case law has played a particularly important role in this regard. Rulings such as Bosman turned players, who used to have no standing in football’s governance structures, into a force to be reckoned with and put FifPro, the organisation representing their interests, on the map. The Commission’s insistence on involving clubs in the negotiations surrounding the collective selling of broadcasting rights strengthened their respective position, too.Footnote ¹⁰⁷ The most serious threat to football’s pyramid structure yet, however, results from the ESL litigation. What is at stake is nothing less than UEFA’s monopoly on organising European football matches. Partly anticipating UEFA sanctions, partly reacting to them, the founders of the ESL initiated legal proceedings before Madrid Commercial Court in which they have argued that EU competition law protects their venture. Although still ongoing at the time of writing, the proceedings have already yielded two interim relief orders asking UEFA and the national federations to refrain from any measures inhibiting the organisation of the ESL (which have, subsequently, been revoked again).Footnote ¹⁰⁸ More significantly, the competent Spanish judge has decided to refer the issue to the Court, which makes it likely that we will get an authoritative answer on the legality of UEFA’s behaviour and, more generally, on the possibility of restricting third-party football competitions under EU law.Footnote ¹⁰⁹

Can UEFA adopt sanctions to prevent the creation of a new league, for example by banning the participating clubs and players from all official football competitions? According to its own statutes, it can. Articles 49 and 52 stipulate that international competitions organised by third parties require prior approval of FIFA, UEFA and/or the relevant member associations, and that disciplinary measures can be taken to enforce this. (Similar provisions exist at the level of national federations.Footnote ¹¹⁰) Its position under EU competition law is less firm. Although there are no direct precedents on breakaway leagues in football, there is a growing number of decisions limiting the power of federations in others sports when it comes to fending off third-party competitions. In Formula One, the Commission issued a statement of objections against the restrictions imposed by the Fédération Internationale de l’Automobile (FIA) on teams, broadcasters and circuit operators penalising involvement in third-party competitions.Footnote ¹¹¹ In MOTOE, the Court struck down a state-sanctioned monopoly of the Greek branch of the Automobile and Touring Club on authorising motorcycling events, drawing attention to the risk that the Club, which organises races itself, could deny competitors access to the market as its powers had not been made subject to any restrictions.Footnote ¹¹² In addition, there has been a number of domestic proceedings in which third-party organisers successfully challenged attempts of sports federations at fighting off rival competitions, including in basketball, wrestling, bodybuilding, as well as automotive and equestrian sports.Footnote ¹¹³

But the case which is factually closest to the ESL scenario is International Skating Union (ISU).^{Footnote 114} The ISU stipulated in its statues that athletes could only participate in events authorised by the Union or its members and, in case of violation, would be punished with up to lifetime bans from official competitions. The Commission found that the practice violated Article 101 TFEU, and the General Court upheld its decision in most key aspects; the judgement is now under appeal. There has been an intense debate about the implications of the ruling for the ESL.Footnote ¹¹⁵ The situation in ISU differs in some important aspects from that of the Super League, notably regarding the income structure (the livelihood of skaters depends to a much greater extent on participating in official competitions than that of footballers) and the dimension of the breakaway competition (off-season races do not seriously reduce the attractiveness of the federation’s own competitions). However, the basic underlying conflict of interest, of a sport governing body both commercially exploiting events and authorising those organised by third parties, is the same. It appears likely that, therefore, UEFA will have to justify its restrictive stance on allowing new football formats, which could be seen as ‘unduly depriv[ing third parties] of market access’.Footnote ¹¹⁶ (In addition, it will have to demonstrate that the authorisation rules it has adopted are based on clear, transparent and non-discriminatory criteria.Footnote ¹¹⁷) Possible justifications could include the protection of the official match calendar,Footnote ¹¹⁸ although the argument that UEFA and national leagues can effectively block the entire year by fixing an extremely dense match schedule seems questionable from a perspective of proportionality. A more serious consideration might be the protection of financial solidarity within football, yet the solidarity payments promised by the breakaway clubs would exceed those currently made from the Champions League revenues. Which would leave the protection of the relegation-and-promotion system, a justification ground that has not yet been tested judicially but UEFA might rely on to defend its opposition to a quasi-closed league, potentially referencing Article 165(2) TFEU which recognises the ‘openness’ of sporting competitions as a guiding objective of EU sports law and policy.^{Footnote 119}

The outcome of the ESL litigation is uncertain at this point. There might be a reluctance on the side of the Court to exceedingly curtail UEFA’s autonomy and interfere too strongly in the functioning of football. Yet, and depending on the intensity of review eventually applied, the case could end up affecting football governance in a tangible manner. At the bare minimum, the CJEU will have to clarify the scope of UEFA’s monopoly of organising European football competitions. This is likely to include the stipulation of some limits. The result may not turn the football pyramid upside down, but it could well lead to a reduction of the power of the governance bodies at its apex. Should the Court opt for a stringent form of scrutiny, it would be a signal that EU law does not just exercise control over the substantive choices that football governing bodies make, but that it also controls the status that allows them to make these choices. UEFA’s monopoly would have to explained, justified and endure judicial review – it would no longer be simply taken for granted.

A. The culture of European football

Cultural elements feature prominently in the European Sport Model. The Commission identifies three main features of how sport is practiced in Europe and the values underpinning it.Footnote ¹²⁵ First, sport has developed in a bottom-up fashion. Grassroots organisations operating at a local level, such as clubs, are the starting point for sporting activity and are, because of the function they exercise, supported by a system of solidarity. Second, sport has an important social role by contributing to ‘forg[ing] identities and bringing people together’:

Third, and relatedly, there is a tradition in Europe to have teams representing different countries compete against each other, which provide ‘an opportunity for European countries to demonstrate their culture and tradition, thus safeguarding the cultural diversity’.Footnote ¹²⁷ We can add to this list the promotion-and-relegation system which, despite being discussed under the Model’s governance elements, has an important cultural dimension as it represents a comparatively strong belief in sporting merit, where only good performance allows teams to progress to higher-tier competitions.Footnote ¹²⁸ The Commission underlines that many of these values contrast with the functioning of elite sport in the US, where clubs (revealingly called ‘franchises’) routinely change city,Footnote ¹²⁹ state teams do not face each other in tournamentsFootnote ¹³⁰ and competitions operate as a closed-shop, meaning that sporting merit is immaterial to the ability of clubs to retain their place in the elite leagues.Footnote ¹³¹

Over two decades have passed since these cultural values have been articulated but, in football, there appears to be continuous support for them from both the regulatory side and all stakeholders within the sport, ranging from ‘ordinary’ fans to high-level EU politicians.Footnote ¹³² Two, in particular, bear highlighting. The first is the commitment to local identity. Both at a socio-cultural and regulatory level, there is an understanding of the special relationship of football with its geographic and social surroundings. Interactions with ‘Europe’, be it through participating in international competitions or the signing of foreign players, do not supplant locally oriented self-perceptions of supporters and clubs, but are contextualised within these. Legal requirements, while protecting the free movement rights of footballers, acknowledge the importance of the local connection between players and their teams/leagues as well as the social significance of competitions between national sides. This commitment is given additional form through projects, launched both within and outside of the world of football, to protect the financial stability of clubs, their sporting heritage and access for fans. The principles and practices that are thus created at the cultural and regulatory level often act in a mutually reinforcing way.

The Independent Fan Led Review of Football Governance, which has produced the aforementioned Crouch Report, is a recent example of how this feedback effect can play out. Commissioned by the UK government in the wake of the Super League fiasco, its aim was to explore ways of improving the governance, ownership and financial sustainability of football clubs. One of the review’s key findings is that there is a problematic disconnect between fans and club owners. The Crouch Report makes a number of recommendations to counteract this disconnect. It proposes the creation of an independent regulator for English football which would have the power to award and withdraw licenses to football clubs. These licences would be made conditional, among other things, on the creation of a ‘Shadow Board’ of elected supporter representatives, which clubs would consult on ‘all material off pitch matters’, and a ‘Golden Share’, which would be ‘democratically held by a [society] for the benefit of the club’s supporters’ and would require the consent to certain actions relating to club heritage, including ‘selling the club stadium or permanently relocating it outside of its local area, joining a new competition not affiliated to FIFA, UEFA, or the FA, or changing the club’s badge, the club name, or first team home colours’.Footnote ¹³³ Where the regulatory and the affective dimensions of football intersect, commitments can be credibly protected.

A second theme in the cultural dimension of European football is the commitment to sporting merit and solidarity. There is a fundamental – if idealised – belief that success in football should be a reflection of good sporting performance, not external factors. This shows in cultural discourses on earning a spot ‘in Europe’ through good results in the domestic league just as in the regulatory tools that limit the acquisition and financing of football clubs. It is also manifested in the central place that the protection of the promotion-and-relegation system has occupied in the debates surrounding the ESL and may occupy in the legal proceedings before the Court. At the same time, there is a wide acceptance of the need for financial redistribution within football. Mechanisms like the collective selling of broadcasting rights and structures involving revenue transfers within the pyramid, which have been legally sanctioned, create a bond of solidarity between professional and grassroots football as well as between more and less affluent clubs. By making football ‘fairy tales’Footnote ¹³⁴ possible and contributing to the inclusivity that is a key component of the perceived charm of the sport, they are also considered to be a fundamental pillar of the affective dimension of European football. This, again, demonstrates that where regulation and affect intersect, the values underpinning football can remain central in any process of transformation.

B. The governance of European football

In its initial elaboration of the European Sport Model, the Commission – without much hesitation – described the governance structure of sports as one based on a pyramid structure which produces competitions at different levels led by national associations operating under the auspices of continental and global federations, holding a de facto monopoly on the regulation of the technical, organisational, economic and disciplinary aspects of sports. A decade later, in the White Paper on Sport, it was already more sceptical as to whether this portrayal accurately captured the European sport landscape. New actors had appeared on the horizon, including professional sports clubs and other participants from outside the traditional governance structures, a development that was ‘posing new questions as regards governance, democracy and representation of interests within the sport movement’.Footnote ¹³⁵ The Commission concluded that the resulting challenges could be addressed by the sport governing bodies themselves ‘through self-regulation respectful of good governance principles’ (while also stating that it was ‘ready to play a facilitating role or take action if necessary’).Footnote ¹³⁶ Other institutions, such as the European Parliament and the Parliamentary Assembly of the Council of Europe, have taken a less optimistic view, stressing the need to impose external checks on whether good governance principles are in fact abided by.Footnote ¹³⁷

Football, in many ways, is a paradigmatic example of this evolution and the tensions that come with it. The football pyramid has undergone a process of change which has affected the traditional governance structure. There has been a push for recognising the interests of under-represented actors.Footnote ¹³⁸ Clubs have created institutions like the European Club Association (formerly the G-14); players have increased their standing via FIFPro and the social dialogue mechanism; national leagues have established European Leagues (formerly EPFL) as a representative organisation; and supporters have been making the case for greater involvement in decisions of clubs and governance authorities. At the same time, the legal status of football governing bodies has increasingly come under pressure. Through litigation before the Court and proceedings before the Commission, a number of football rules and practices have successfully been challenged by actors outside the sport’s governance structure, thus curtailing the regulatory autonomy of UEFA and national associations.

The events surrounding the ESL epitomise these developments. The announcement of the plans to establish the ESL was the most direct attack on the football pyramid to date, indicating a dissatisfaction by elite clubs in the way in which football governance manages the sport. It has led to litigation which might impose limits to UEFA’s monopoly of organising European football competitions. In addition, the fierce reaction against the project demonstrated how great a value the many actors in football, ranging from smaller clubs to players, managers and supporters, attach to the idea of representation (in addition to values like financial solidarity and sporting merit). They bemoaned the way in which football clubs operated in isolation from the views and interests of fans, and the way in which football governance allowed for this marginalisation to happen.

It emerges that governance is the element of the European Sports Model where we find the strongest disparity between football’s affective and regulatory dimensions. Rather than creating a feedback loop where regulation reflects and strengthens commitments underlying the experience of football, the dynamic between the two dimensions is much more protracted here. On an affective level, we see increasing calls for representation in football. There is a growing expectation that decisions in football should be taken in a manner that gives voice to all affected stakeholders. Supporter groups demand to be consulted when major decisions at their own clubs are taken. Players, clubs and leagues want to have a say on how football is run, especially when it comes to decisions directly impacting them. On a regulatory level, there has so far been greater ambivalence in this regard. While EU sports law and policy has not hampered the turn towards more representation, it has also done little to facilitate it. The creation in 2008 of the social dialogue committee for professional football, which provides a negotiation platform for clubs and players regarding employment matters, is one prominent exception (even though its practical success has, so far, been limited).Footnote ¹³⁹ Other than that, the EU’s actions have mostly remained on a rhetorical level. Various policy documents, including the aforementioned White Paper on Sport, have emphasised the importance of good governance in football and pledged allegiance to objectives such as promoting accountability, participation and democratic structures.Footnote ¹⁴⁰ None of this, however, has translated into actual regulatory commitments or critical engagement with the current structures. In the meantime, the close cooperation between the Commission and UEFA on a range of issues has contributed to solidifying the latter’s position.

C. Re-thinking European football

These processes provide important insights for the future of football regulation. There is a strong case for continuing to legally protect the cultural values underpinning the ‘European Football Model’. Embracing the social function of football, its redistributive features and the safeguards adopted to protect its integrity not only has had positive effects on the sport, but enjoys the backing of the actors involved in it. Consequently, it should remain a cornerstone of any regulatory approach in this area, and could be pursued with even greater determination. Where, by contrast, the regulatory dimension conflicts with the experience and expectations of fans and other stakeholders, both regulatory and cultural tensions emerge. This is notably the case when it comes to issues of governance and representation.

It is crucial to note in this context that the pyramid structure is instrumental, not self-serving. It is not, and never has been, an end in and of itself but was created as a means of achieving certain objectives that benefit the sport. Sports governing bodies like UEFA have tried to leverage the idea of the European Sport Model as a way of portraying the existing governance mechanisms as normatively desirable in their own right.Footnote ¹⁴¹ This, however, is a misrepresentation of the Commission’s position, which always saw the pyramid-shaped organisation of sports as a choice rather than a necessity – a historically settled and in many ways useful one, but a choice nonetheless.Footnote ¹⁴² The regulation of football must reflect this instrumental nature of football’s governance structures, provide opportunities for periodic reflection on whether they still fulfil the functions they have been assigned with and, where they do not, act in a corrective manner.

What could a re-thinking of the governance structure of European football entail? One option is legislation. Instead of relying on CJEU proceedings and Commission cases to regulate football federations on an ad hoc basis, the EU could enact laws that explicitly subject them to a coherent set of regulatory standards. (A similar course of action could, mutatis mutandis, be pursued by the Member States.Footnote ¹⁴³) This could take the form of a quid pro quo. In the wake of the announcement of the ESL, Steve Weatherill suggested that the EU could ‘establish minimum standards of good governance while ruling out sporting competitions which depart from merit-based criteria for admission’.Footnote ¹⁴⁴ In a similar vein, Antoine Duval proposed that a way of the ESL dilemma would be to confer a state-sanctioned monopoly to UEFA/FIFA which would be conditional on strict governance criteria – a solution that would recognise football as a ‘transnational public service’.Footnote ¹⁴⁵ These governance standards might involve a commitment to incorporating a larger number of stakeholders in the decision-making processes in a more formal way than currently the case, for example by giving representatives of fans, players and smaller clubs a ‘seat at the table’, ie UEFA’s Executive Committee.Footnote ¹⁴⁶ But they could also be used to stipulate clearer and stricter requirements in relation to other objectives pursued by football governance bodies, for instance by requiring a greater degree of transparency, accountability and redistribution from the higher to the lower tiers of the pyramid.Footnote ¹⁴⁷ The enforcement of these obligations could be put in the hands of the Commission or, as suggested in the Crouch Report, of a special independent regulatory body.

These obligations could extend not just to the footballing authorities, but to actors within the pyramid, such as clubs. A radical example of the regulatory entrenchment of representation is the German ‘50+1’-Rule, which stipulates that club members must hold a majority of their voting rights. This excludes the possibility of major decisions being taken without consent of the fans. A recent investigation of the German competition authority illustrates that law and regulation can be sensitive to the idea of representation which underpins the rule.Footnote ¹⁴⁸ In its preliminary assessment, the Bundeskartellamt found that the restriction on club ownership is justified to maintain the ‘club character’ of the sport and to ensure a competitive balance between teams. However, in order to be proportionate, the German Football League must enforce it more consistently. Exceptions for private investors have to be limited to what is strictly necessary; otherwise, the entire purpose of the regulation risks being missed. This demonstrates the potential for feedback loops between the regulatory and affective dimension of football in relation to questions of governance. It is unsurprising, then, that the ‘50+1’-Rule has been at the centre of fan-driven proposals for reform after the ESL sagaFootnote ¹⁴⁹ and was explicitly commended by the European Parliament.Footnote ¹⁵⁰

An important issue in this context is whether the EU has the competence to adopt legislation of such far-reaching nature. The Treaties give the Union only an ancillary competence in the field of sport, which is limited to measures that support, coordinate or supplement the actions of the Member States.Footnote ¹⁵¹ Article 165 TFEU tasks the EU with contributing to ‘the promotion of European sporting issues’ and ‘developing a European dimension in sport’ but, crucially, excludes any harmonisation. This, however, need not be an insurmountable obstacle. Given that professional football has a strong economic component, Article 114 TFEU could constitute an alternative legal basis for EU action. Of course, the question would arise as to whether this would not circumvent the red line in the (more specific) provisions on sports, but more creative usages of Article 114 TFEU have been observed in the past.Footnote ¹⁵² It should be added that Member States and other non-EU European countries would not have the same problem as the Union in this regard because they enjoy unlimited regulatory competences in relation to sport. Their problem is rather one of scope: they can only influence what is happening within their territory, their national and regional federations, and their domestic competitions (although spill-over effects are conceivable, especially with legislation adopted by authorities in Europe’s top leagues).

Even if such ambitious projects fail, there is plenty that the EU can do. As explained, many aspects of how football is (self-)regulated restrict internal market principles and must, therefore, be justified by demonstrating that they pursue legitimate objectives and are proportionate to achieve them. It falls upon the EU (and national) institutions to review whether these requirements are fulfilled. When exercising this role, they have often taken a deferential approach, accepting justification grounds rather easily as legitimate and the means adopted in their pursuit as proportionate. Even where UEFA regulations were found to violate European rules, the modifications that were required concerned questions of detail rather than systemic issues; the reforms of the transfer system and the commitments in the decisions on the collective sale of broadcasting rights are cases in point.

It might be time to tighten the screws and probe more intensely whether the current structures in the world of football achieve what they are meant to and examine, in particular, whether they are sufficiently sensitive to the need for diverse stakeholders to be represented in decision-making processes. Such a critical perspective by the Court and Commission might be the starting point for a more stable and sustained negotiation of the future of football. The ESL case that is currently pending will provide an opportunity for doing exactly that and ask questions about the benefit of having a UEFA monopoly on organising and commercially exploiting European competitions, and reflect on whether UEFA should comply with certain good governance principles before its decisions can be considered as truly representing European football. But even in cases which are not, or not directly, about the regulatory competences of football governance bodies, a stricter review approach would pay off. Take the joint-selling of broadcasting rights. In the future, the question as to whether collective selling continues to be beneficial for consumers, broadcasters but also fans should be posed with greater seriousness, alongside the issue of whether the system’s contribution to redistribution is sufficient and accountable. This might lead to more radical changes of old-inherited structures within football or promote greater effectiveness in the way they are implemented, and, importantly, bring the affective dimension of the Europeanisation of football back into the regulatory picture.