Will sports law have to be completely subordinated to EU law?

On January 16, 2025, Advocate General Tamara Ćapeta issued an opinion on preliminary questions referred by the Belgian Court of Cassation, in which she assesses sports law from the perspective of European law. The opinion was issued in connection with the decision of the Court of Justice of the European Union (hereinafter "CJEU") in the case of the Belgian football club Royal Football Club of Seraing (hereinafter "football team") ref. no. C-600/23. The CJEU will thus repeatedly focus on the compliance of FIFA rules with European law. In her opinion, the Advocate General also expresses her view on the decision-making practice of the Court of Arbitration for Sport (hereinafter referred to as "CAS"). She focuses on assessing the possibility of reviewing CAS arbitral awards by national courts from the perspective of EU law. In her opinion, she elaborates on the argument that, in the case of a CAS arbitral award affecting European law, Member States should have the power to review the arbitral award, regardless of the fact of res judicata.

Case C-600/23 Royal Football Club Seraing

On December 18 and 19, 2014, FIFA "approved new rules to be included in the FIFA Regulations on the Status and Transfer of Players (hereinafter "RSTP") concerning the ownership of players' economic rights by third parties and the influence of third parties on clubs."

The new rules prohibited the ownership of players' economic rights by third parties and prohibited the conclusion of new agreements contrary to this prohibition.

However, despite this prohibition, the football club concluded such an agreement on January 30, 2015, with Doyen Sports (hereinafter referred to as "the company"). Under this agreement, selected players of the football club were to be financed in the future, with the company becoming the owner of 30% of the financial rights of these players. Later, the football club and the company entered into a second similar agreement.

On this basis, the FIFA Disciplinary Committee found the football club guilty of violating these new rules, precisely because of the above-mentioned agreements concluded with the company.

The Appeals Committee rejected the football club's appeal in this matter, and therefore an arbitration action was filed against this decision with CAS. In its decision, CAS concluded that the relevant FIFA rules were valid.

At the same time, the company filed a lawsuit with the Tribunal de commerce francophone de Bruxelles against FIFA, UEFA, and Union Royale Belge des Sociétés de Football Association ASBL (hereinafter referred to as "URBSFA"), with the football club subsequently joining the proceedings. It requested that the court declare the new rules enshrined in the RSTP regulations invalid under EU law. In its opinion, the prohibition on third parties owning the economic rights of players is contrary to the free movement of capital, services and workers and to competition law.

The court declared that it had no jurisdiction to rule on the matter, and the football club appealed against this decision. In its appeal, the football club sought to hold FIFA, UEFA, and URBSFA liable for its alleged violation of EU law. It sought the annulment of the new articles of the RSTP governing the above-mentioned issue.

During the appeal, CAS issued a decision in the first arbitration proceedings described above, which had a fundamental impact on the decision of the court of appeal, which dismissed the action on the grounds of res judicata without the need to initiate enforcement proceedings.

The football club lodged an appeal against this decision with the court, which referred preliminary questions on this matter to the CJEU.

The court referred two preliminary questions to the CJEU:

‘1. Does Article 19(1) [TEU], read in conjunction with Article 267 [TFEU] and Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter ‘the Charter’), preclude the application of provisions of national law, such as Article 24 and Article 171[3] (9) of the Belgian Code judiciaire (Judicial Code), which are intended to enforce the principle of res judicata, to an arbitral award which has been reviewed for compliance with European Union law by a court of a State which is not a member of the European Union and which is not entitled to refer a question to the Court of Justice of the European Union for a preliminary ruling?

2) Does Article 19(1) [TEU], in conjunction with Article 267 [TFEU] and Article 47 [of the Charter] to the application of a rule of national law which, subject to proof to the contrary by third parties, confers evidential value in relation to those persons?

The recommendations set out in the newly issued opinion of Advocate General Tamara Ćapeta may be an important guide for the ongoing proceedings before the CJEU and its final decision in the case. Going beyond the questions raised, she addresses the general issue of effective judicial protection in relation to arbitral awards in sport.

She suggests that there should be special rules for sports rules, which should be reviewable in all matters of EU law, regardless of existing CAS arbitration awards.

The reason for this extension is the nature of arbitration proceedings before CAS. Arbitration proceedings are defined as exclusive in FIFA rules, and athletes, clubs, or agents cannot freely choose to have disputes decided by CAS while excluding the jurisdiction of courts. Sports arbitration is compared to commercial arbitration, in which the parties freely choose to have the dispute decided by an arbitral tribunal. This excludes the application of certain rules of the legal system, but does not exclude rules of public order.

At the same time, FIFA's self-sufficiency in the enforcement of arbitration awards is also a reason. The Advocate General discusses situations where FIFA is autonomous in the enforcement of CAS decisions in cases where the obligations imposed by the decision are not fulfilled. FIFA itself can enforce compliance with the obligations imposed, for example, by imposing a ban on a club participating in specific sporting events, a ban on registering new players, financial sanctions, or other modifications, without having to go to court. In the opinion of the Advocate General, this prevents the review of arbitration awards by general courts, which are also authorized in Member States to examine their compliance with EU law.

Ćapeta therefore requests the CJEU to extend its conclusions issued in its earlier decision in International Skating Union and "develop a separate line of case law on the issue of judicial review of arbitral awards issued in the context of compulsory arbitration proceedings such as those conducted by CAS on the basis of UEFA regulations."

If the proposals arising from the Advocate General's opinion are adopted in the CJEU's decision, this could have a fundamental impact on sports law as such. Such a significant impact is due to the fact that CAS is granted exclusive jurisdiction to decide disputes by a number of legal regulations of sports associations.

In our opinion, the Advocate General's proposals are not acceptable to the extent stated in her opinion, given the specific nature of the world of sport and, even more so, its global nature. The rules of sports associations do not only regulate relations within the EU, but also set rules for the functioning of the whole world. It is therefore highly desirable to leave the resolution of disputes to specialized bodies focusing on the rules of sport, which are already complex today.

It is currently inconceivable that sports disputes should be decided by the courts of Member States instead of specialized expert bodies. Not only would this lead to unacceptable delays, but we also believe that it would lead to incorrect legal assessments of the disputes in question.

Although the CAS arbitration clause may appear to be imposed by sports associations, it should be noted that athletes who wish to compete at the highest level join one of these associations for this purpose. In order to properly perform their sporting activities, they voluntarily commit themselves to fair play and to complying with the rules of sport, which, given the specific nature of the sporting world, include the resolution of disputes before CAS. This serves to ensure consistency in decision-making in cases arising from rule violations throughout the world. In our opinion, this procedure ensures legal predictability in sports relations, including for the athletes themselves. We therefore believe that this is not an imposed arbitration clause in the legal sense of the word.

It will be interesting to see how the CJEU rules on the matter and to what extent it will follow the assessments and recommendations formulated by the Advocate General.

Lukáš Procházka, attorney-at-law

Tereza Picková, lawyer