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CAS awards ‘can’t prevent EU court reviews’

An adviser to the EU’s highest court, the Court of Justice of the European Union (CJEU), has found that national courts must be allowed to carry out judicial reviews of FIFA rules for their compatibility with EU law.

Advocate General (AG) Tamara Ćapeta concluded that this should be the case even where an award backing the FIFA rules has been made by the Swiss-based Court of Arbitration for Sport (CAS) and confirmed by that country’s supreme court.

She was issuing an opinion in a long-running case involving Belgian football club RFC Seraing, which had been sanctioned by FIFA for transferring the economic rights of some of its players to Maltese company Doyen Sports.

Res judicata

FIFA had banned third-party ownership of players in 2015, and its disciplinary measures against Seraing were later confirmed by CAS and the Swiss Federal Supreme Court.

Doyen then sought a declaration from the Belgian courts that the FIFA ban breached EU law, but those courts declined jurisdiction on the basis that Belgian law attributed the force of res judicata (binding) to certain types of commercial arbitration awards, such as those made by CAS.

Belgium’s court of appeal, however, sought guidance from the Court of Justice on whether EU law precluded the application of such national provisions to an arbitral award that had been reviewed solely by a court of a non-EU state.

FIFA clauses ‘mandatory’

AG Ćapeta found that sports arbitration was different from commercial arbitration, where there was free acceptance of the arbitration clause by both parties.

“FIFA’s sports-arbitration clauses are mandatory. Sport actors subject to FIFA’s rules have no option but to submit their disputes to the FIFA Disciplinary Committee and, subsequently, to CAS,” she stated.

“Unlike a party to commercial arbitration, FIFA can enforce the arbitral award on its own, by prohibiting players to play or clubs or associations to participate in its competitions,” she added.

As a result, AG Ćapeta found that those involved in sport in the EU who are subject to FIFA’s dispute-settlement system must have access to a court with the power to judicially review FIFA rules for their compatibility with EU law.