A newbie called Caesar sent me an excellent PM regarding this thread. He's studying to be a Barrister and has studied EU law. It's a long post but very informative.
1: What EU law is being breached? Regardless of what Dupont argues, because one case is not the same as the other, I have no idea what EU this could conceivably breach. The only argument I can see would be affecting free movement of capital/workers etc. I've seen it argued that its a breach of competition law, but the problem with that argument is that EU competition law is still relatively underdeveloped and currently consists of only two real branches: abuse of a dominant position and anti competitive agreements (TFEU 102 and 101). It can't be an anti competitive agreement because UEFA is an association/governing body, not a collection of competitors, like United Real Bayern etc.
AOADP could be argued from UEFA but in order to do so you have to prove three things:
The Relative Market-Domination-Abuse. The Market would be football, the Domination UEFA's hegemony and the Abuse presumably them precluding City from competing in that. However, that's inherently flawed: UEFA is an association, not a competing company. If the G14 decided this, then you may have a point (and that would be an anti competitive agreement) but not UEFA. Further, UEFA is both voluntary and invitation: in practice, those invitations are handed out on merit but nothing precludes them from choosing to invite Everton instead of Arsenal this season (5th and 4th).
In any case, this case would fail the tests comprehensively. Market requires a measuring of one product against another, unsuitable here, Dominance requires an undertaking, which UEFA is not. Abuse is possible, as it regards:
Imposing unfair prices or trading conditions
Limiting production, markets or development to the detriment of consumers
Discriminating against certain trading partners but not others, places them at a competitive disadvantage
Tying parties into other obligations when conducting business: refusing to supply X unless they also buy Y
but you can't succeed with 1/3, you need all three.
Now, I don't expect chapter and verse, but if you're claiming something is illegal, or claiming that Dupont is, then show us what precisely is illegal? What part of EU law is being breached in particular? There's some spacker on Bluemoon, Aguero93, who thinks it comes from EU anti-trust law. There is no such thing: there's US anti-trust law, developed by Teddy Roosevelt to combat the steel and railway barons, but its counterpart in the EU is EU competition law, as laid out above.
BobbyManc seems convinced the break-even rule is illegal. I would like to know why, as I can't see anything. Also, Dupont is definitely working for lobbyists of a certain persuasion. They may be working behind the scenes or through agents, but this is orchestrated by one of the sugar daddy clubs. There is no rule directly regarding owners of a club spending their money, it's quite an obscure area of law. The fact that a lawyer working on behalf of those clubs says there is is no different from a lawyer saying his client is innocent. It's kinda your job.
Quoting Bobby here: “The break-even rule prevents football clubs from freely determining their level of expenses, since it imposes a ceiling on their deficit, a limit to their investment, even if such deficit/investment is entirely covered by the owners. In particular, the clubs are limited in their freedom to hire players, since the break-even rule confines the amount of transfer fee and salaries clubs can offer.”
And which EU law does this contravene? The freedom argument is the one that is most interesting, and could make a decent case, but the financial impositions on clubs are essentially a non-issue. I'm not saying that EU law expressly allows it, I'm saying there's no EU law in this area, and the ECJ will most likely side with the Commission that developed this law.
The interest argument I find is the one regarding the impact on the transfer and salaries of players, but the Court will likely claim that to be a market reality.
2: the governing and investigative body in this area is the EU Commission, which is functionally the second highest body in the EU and the highest in its day-to-day affairs. If they put their stamp on this, and they did, you can bet your bollocks to a barn dance it'll hold up.
Now, some might point to the separation of powers argument regarding the ECJ and that is theoretically true, but pragmatically, its not. Without getting too theoretical, there are several arguments as to why the classical theory of a Court being a neutral venue for the law doesn't apply to the ECJ. Cohen points out that the Court is becoming more and more politicised, Weingast shows that the ECJ generally follows the point of view of the ECJ in a spatial model and you have to consider the Courts' mandate. In Van Gend En Loos, the Court decided that it's mandate was to promote the Single Market. If the Commission argues that a Europe-wide standard of finances in the biggest sport in Europe promotes the Single Market without violating competitions law, the Court will agree with it, I guarantee you. It will see it as an example of positive integration, much like the White Paper.
So, my question is, what do we have to go on that we can conclude that the ECJ would side against the Commission? I see nothing here, there's no precedent in this area and the behaviour of the Court goes against the notion, particularly if you believe that the Court is trying to maximize its influence without getting on the bad side of the other organs of the EU, as per Rasmussen. In any case, the EU Commission is possibly the most efficient body in the world in terms of its legality. The College of Commissioners consists of literally thousands of excellent lawyers and bureaucrats. I guarantee you they considered this long and hard, and it was most certainly put into a working group in Comitology, which is a committee with members of the Commission and Council of Ministers. I would be very surprised if there wasn't a mock trial as well, or at least a consultation with the ECJ behind closed doors (it happens at EU level, accept it)
3: UEFA is a voluntary organisation. That simple. If they say you have to play by their rules to get in their clubhouse, that's the end of it. There's nothing to stop City and PSG and Monaco building their own petrodollar-only clubhouse, but no law can compel a private, voluntary organisation that is itself not illegal to change its membership requirements. This is an extension of the notion of privity of contract, which states that a contract is between the parties and won't be altered by the Court (unless there's vitiating factors or its illegal)
Now, you might argue that FFP is illegal. But historically, the Court only acts where it's immoral, as well as illegal. I don't have the case at hand, but a case around 1910 concerned a contract for murder and rape. That's the standard you're after for illegality in this area
I quote Bobby here:
"UEFA has its own rules.
Which must conform to EU Law"
They do. Its that simple, unless there is some unbelievably obscure point I'm missing, UEFA is perfectly in line and probably outside the scope of EU competition law. Furthermore, they've cooperated with the Commission for a years, and thus its likely that the Commission has investigated UEFA independently
4: CAS
The CAS' jurisdiction is not recognized by the ECJ. If the ECJ finds for the Commission and UEFA, which they would, and the CAS finds for City, it will make sod all difference. The Supremacy of EU Law (Costa v ENEL) is a fundamental principle of EU Law, not one which the ECJ will bend over to overrule for the CAS.
Overall, this point from B20 sums it up nicely:
"No it's not. First of all, this has been screened by Eu beforehand.
Secondly, UEFA can make the powerful argument that FFP only curtails participation in competitions arranged by them and by invitation by them and that it does not infringe on any laws that they set requirements for receiving such invitations.
It's very far from clear that Dupont has a case. I'd suggest we don't even know if Dupont believes there is a case. He's probably paid so handsomely by lobbyists (of which I am sure you are one) that he doesn't care how winnable it is. His job is just to make it as winnable as it can be.
Maybe there is something to it. But someone filing suit doesn't mean they have a legitimate case."
First and only time a Liverpool fan will understand the law.
