BCA and civil courts rule on interim measure requests in football industry

Introduction
General rule of relegation and promotion
Pro League's decision of 15 May 2020
Challenge before BCA
Pro League's decision of 31 July 2020 challenged before commercial court
Different​ solution, similar approach
Refusal of licence

Introduction

As in many other European countries, the COVID-19 pandemic forced the Pro League – the Belgian professional football league – to set up an alternative arrangement for the end of the disrupted 2019-2020 football season. Subsequently, football clubs that considered themselves to be affected by the arrangement challenged it to prevent relegation or claim promotion. In this context, the Belgian Competition Authority (BCA) and the civil courts recently had to rule on different interim measure requests in the football sector.

General rule of relegation and promotion

According to the general rules of the Pro League and the Royal Belgian Football Association (RBFA), the club with the least points at the end of the Division 1A season is relegated to Division 1B. In Division 1B, on the other hand, the season is separated into two phases and the team qualifying for promotion to Division 1A at the end of the season is the winner of a final played between the two clubs which ranked first in the respective two phases of the season.

Pro League's decision of 15 May 2020

Due to the COVID-19 pandemic and the inability to play football matches in Belgium, on 15 May 2020 the Pro League decided to:

• end the 2019-2020 season;
• maintain 16 clubs in Division 1A for the 2020-2021 season and, thus, without playing any further matches, relegate the club with the least points at that time to Division 1B. This meant that Division 1A club Waasland-Beveren would be relegated to Division 1B;
• hold that, if the Division 1B final between OHL and Beerschot could not be played in time due to the COVID-19 crisis, the club that had obtained the most points during the season as a whole would be promoted to Division 1A. This meant that if the final between OHL and Beerschot could not be played, Westerlo would be promoted to Division 1A; and
• impose penalties on any Pro League club for seeking legal remedies concerning this decision.

Challenge before BCA

As the Pro League's decision of 15 May 2020 resulted in the relegation of Division 1A club Waasland-Beveren to Division 1B, Foodinvest Holding nv, Waasland-Beveren's main shareholder, requested the College of the Belgian Competition Authority (the BCA College) to impose interim measures on the Pro League, arguing that its decision would infringe competition law. In its decision of 2 July 2020,(1) the BCA College found the following:

• Given the COVID-19 crisis measures, the Pro League was not unreasonable to decide on 15 May 2020 to end the 2019-2020 season and maintain 16 clubs in Division 1A for the 2020-2021 season, thus relegating Waasland-Beveren to Division 1B.
• The decision was the closest possible to the RBFA Football Regulations and the sport's logic.
• As it had since become possible to play matches, the BCA College nevertheless examined whether there was a risk of discrimination if the Division 1B final was played to decide on the promotion of Division 1B clubs to Division 1A, and not the matches to decide on the relegation of a club from Division 1A to Division 1B. In that context, the BCA College examined the option of playing two matches to decide which club would be relegated, or all of the remaining matches of the final day of the 2019-2020 season. The parties, including Waasland-Beveren, argued against such a measure. The BCA College also decided that it would impose a disproportionate burden on the clubs and organisers to play the 2020-2021 season with 17 or 18 clubs in Division 1A, while it would grant to Waasland-Beveren the right to stay in Division 1A without earning that right in the competition. Therefore, the BCA College concluded that Waasland-Beveren's relegation to Division 1B was not prima facie incompatible with competition law.
• However, the BCA College ordered the Pro League to suspend the provision in the 15 May 2020 decision that allowed for penalties to be imposed on Waasland-Beveren or any other Pro League club for seeking legal remedies (eg, from the competition authority) concerning the 15 May 2020 decision.

Pro League's decision of 31 July 2020 challenged before commercial court

In a new decision of 31 July 2020, the Pro League replaced its 15 May 2020 decision and chose a new competition format for Division 1A for the 2020-2021 season with 18 clubs instead of 16, including Waasland-Beveren and the two Division 1B finalists, OHL and Beerschot.(2)

That change was bad news for Westerlo, which played in Division 1B, and was ranked first in Division 1B's general ranking for season 2019-2020 (ie, it had obtained the most points throughout all of the matches played during the season, applying the so-called 'rule of three') at the time of the Pro League's decision of 15 May 2020 deciding to end the 2019-2020 season. According to the Pro League's decision of 15 May 2020, that ranking would have secured Westerlo's promotion to Division 1A, as the decision provided that if the Division 1B final could not be played, the club that had obtained the most points during the season as a whole would be promoted to Division 1A (ie, Westerlo).

The RBFA also applied this reasoning to amateur football. It decided that stopping amateur football competitions implied that the respective finals could not take place and that consequently, the promotion and relegation rules were to be applied at the time when the competition had been stopped. If clubs had played a different number of matches, the RBFA used the rule of three to ensure that all teams were placed on equal footing when determining the final ranking. By comparison, this solution was also validated in France by the Council of State on 9 June 2020, which considered that applying the rule of three to ratify the final league ranking did not infringe the principle of equality.(3)

However, the Pro League's amended decision of 31 July 2020 to include in Division 1A Waasland-Beveren and the two Division 1B finalists, OHL and Beerschot, meant that Westerlo, unlike in the decision of 15 May 2020, would not be promoted to Division 1A.

Therefore, Westerlo made a request to the president of the Antwerp Commercial Court for interim measures asking to be promoted to Division 1A for the 2020-2021 season. Westerlo argued that it had lost the chance to be promoted to Division 1A as a result of the Pro League's new decision and given the fact that both Division 1B finalists would now be automatically promoted to Division 1A whatever the final match's result. On 6 August 2020 the president rejected the request and ruled that Westerlo had not sufficiently demonstrated that the Pro League's decision of 31 July 2020 did not pursue legitimate objectives, was unreasonable or would have been adopted with the intention of distorting competition.(4) As a result, the president concluded that Westerlo had no prima facie right to request promotion to Division 1A.

Different​ solution, similar approach

It is clear from the above that the BCA and the court considered the unprecedented and uncertain circumstances in which the Belgian football association had to take a decision – a decision that would, irrespective of the solution, always favour of some clubs and to the detriment of others. The COVID-19 crisis and the forced stop to the 2019-2020 football competitions in Europe have raised similar issues in other countries and the national authorities and courts have generally seemed to take a similar reasonable approach. For example, in the Netherlands, the Dutch football association (KNVB) decided that for the 2019-2020 season there would be no promotions or relegations from one division to another. Two football clubs that could potentially have been promoted to a higher division if the season had not been stopped, Cambuur and De Graafschap, brought proceedings before the civil courts, but they were dismissed and the KNVB's decision was considered reasonable and was therefore validated.

Refusal of licence

While the 2019-2020 season disruption triggered several legal actions, the BCA College was recently also confronted with a request for interim measures in the football sector regarding unrelated issues. On 29 June 2020 the BCA College rejected a request by club Royal Excelsior Virton to impose interim measures on the RBFA.(5)

The BCA College decided that the RBFA's refusal of a licence, confirmed by an arbitration decision of the Belgian Court of Arbitration for Sport (CBAS), was based on grounds that were prima facie compatible with competition law. Royal Excelsior Virton had, despite several invitations, not used the option to offer a bank guarantee or other instrument that would have given a safeguard to the RBFA or the CBAS of the club's continuity during the 2020-2021 season.

For further information on this topic please contact Beatrijs Gielen, Nina Methens or Carmen Verdonck at ALTIUS by telephone (+32 2 426 1414) or email (beatrijs.gielen@altius.com, nina.methens@altius.com or carmen.verdonck@altius.com). The ALTIUS website can be accessed at www.altius.com.

Endnotes

(1) Decision ABC-2020-V/M-26 of 2 July 2020 in Case CONC-VM-20/0017, Foodinvest/Pro League et URBFSA.

(2) See here.

(3) French Council of State, Order of 9 June 2020 in Cases 440809, 440813, 440824, Ligue 1 de football.

(4) President of the Antwerp Commercial Court of 6 August 2020 in Case C/20/00080.

(5) Decision ABC-2020-V/M-24 of 29 June 2020 in Case CONC-V/M-20/0012, RE Virton's request for interim measures.