An expert from the European Union’s highest court has questioned whether Court of Arbitration for Sport (CAS) verdicts should actually be the final word in sporting disputes, potentially overturning a system that has operated in sport since 1984.
The Court of Justice of the European Union (CJEU) published on Thursday the conclusions of Advocate General Tamara Capeta on the dispute between the Belgian part of the Seraing RFC and FIFAthe governing body of world football.
This argument began in 2015, shortly after FIFA banned third-party ownership (TPO) of players’ economic rights, a practice that saw investors buy stakes in players so they could collect a share of future fees transfer.
A FIFA disciplinary committee has fined RFC Seraing 150,000 Swiss francs and given a four-period transfer ban for selling stakes in three players to Maltese company Doyen Sports, one of the world’s largest TPO unions. assets of world football.
Supported by Doyen, RFC Seraing appealed to the CAS in 2016 but was unable to overturn the sanction. They then took the case to the Swiss Federal Court for review, but they also lost.
Under the legal regime that has underpinned almost all professional sports outside of North America for decades, this should have been the end of it, as FIFA, like most other international sports federations, has a clause of arbitration which makes the CAS the supreme court of sport in matters ranging from anti-doping cases to financial fair play disputes.
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The Belgian side, however, refused to give up and took the case to the Belgian courts, where a Brussels appeals court ultimately ruled that the arbitration clause was invalid because it was too broad.
The Belgian Supreme Court then referred the case to the CJEU for a definitive ruling on the arbitration clause and it is on this case that Capeta issued its non-binding opinion.
In a press release, the Luxembourg-based court said that the Croatian law professor believes that “direct access and full judicial review by a national court against all rules of EU law must be available to actors EU athletes who are subject to the FIFA testing system. settlement of disputes, notwithstanding a final award of the CAS”.
In plain English, this means that the attorney general, whose job is to help the court make a final decision, believes that athletes, teams, corporations and anyone else in conflict with a governing body should be able to appeal decisions of the CAS within a reasonable time. national court.
The former president of the FIFA governance committee, Miguel Poiares Madurio, himself a former advocate general of the CJEU, reacted favorably to the X news by saying that Capeta’s opinion “is one more contribution to the dismantling of the current sports governance regime.
“Since sports arbitration has not been reformed in accordance with the rule of law, there is hardly any other alternative to the CJEU than this,” he added.
In theory, if Capeta’s opinion is supported by the court when it issues its final decision in the coming months, it could allow UEFA to appeal the CAS decision which allowed Manchester City to breach its FFP rules in 2020 via a domestic EU court, although UEFA chose not to challenge the decision in the Swiss courts, as allowed its own statutes at the time.
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In practice, the true meaning of a decision based on this opinion would be that the CJEU would become the most likely final arbiter for the most serious future cases involving athletes, governing bodies, leagues or teams that operate in the EU, which would involve almost all UEFA files.
As Maduro points out, this is just the latest in a growing list of defeats for the sport’s status quo, following recent CJEU rulings in cases involving FIFA, the International Skating Union and the UEFA.
The most notable of these was the 2023 judgment in the European Super League case, which declared that the threat of pre-emptive sanctions from FIFA and UEFA against clubs and players initially registered with the competition was illegal, and last year some FIFA regulations on international relations. transfers were also found guilty of breaching EU law in case brought by former Chelsea, Arsenal and Real Madrid midfielder Lassana Diarra.
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Talk to AthleticsAntoine Duval, director of the Asser International Sports Law Center, based in The Hague, said: “If the court follows its opinion, any CAS award, even after review by the Swiss Federal Court, will be contestable before any court. national court of the country. EU, based on EU law.
“It will be expensive and time-consuming, so only a few athletes and clubs will be able to afford it, and it certainly won’t bring the challenger any wins. But this will at least facilitate challenges, which will ultimately end up before the CJEU.
“Crucially, if the CJEU approves this, it will further strengthen its position as the court of last resort to examine transnational sports governance. »
In short, sport’s decades-long practice of policing itself and keeping its disputes out of court is over.
Athletics has contacted CAS, FIFA and UEFA for comment.
(FABRICE COFFRINI/AFP via Getty Images)