An expert at the European Union’s highest court has questioned whether Court of Arbitration for Sport (CAS) verdicts really should be the last word in sports rows, potentially overturning a system that has worked across sport since 1984.
On Thursday, the Court of Justice of the European Union (CJEU) published Advocate General Tamara Capeta’s opinion on the dispute between Belgian side RFC Seraing and FIFA, world football’s governing body.
That argument started in 2015, shortly after FIFA had banned third party ownership (TPO) of players’ economic rights, a practice that saw investors buy stakes in players so they could take a cut of any future transfer fees.
A FIFA disciplinary committee gave RFC Seraing a 150,000 Swiss franc fine and a four-window transfer ban for selling stakes in three players to Maltese-based Doyen Sports, one of the most active TPO syndicates in global football.
Backed by Doyen, RFC Seraing appealed to CAS in 2016 but failed to overturn the sanction. They then took the case to the Swiss Federal Supreme Court for review but lost there, too.
According to the legal regime that has underpinned almost all professional sport outside North America for decades, that should have been the end of it, as FIFA, like most other international sports federations, has an arbitration clause that makes CAS sport’s supreme court in matters ranging from anti-doping cases to Financial Fair Play disputes.
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The Belgian side, however, refused to quit and took its case to the Belgian courts, where an appeal court in Brussels eventually ruled that the arbitration clause was invalid, as it was too general.
Belgium’s supreme court then referred the case to the CJEU to get a definitive ruling on the arbitration clause and it is that case that Capeta has now issued her non-binding opinion.
In a press release, the Strasbourg-based court said the Croatian legal professor believes “direct access to and full judicial review by a national court against any and all rules of EU law must be available to EU sports actors that are subject to FIFA’s system of dispute settlement, a final CAS award notwithstanding”.
In plain English, this means the advocate general, whose job it is to help the court to make a final ruling, thinks athletes, teams, companies and anyone else in dispute with a governing body, should be able to appeal against CAS rulings in a national court.
The former chairman of FIFA’s governance committee Miguel Poiares Madurio, a former CJEU advocate general himself, reacted favourably to the news on X by saying Capeta’s opinion “is one more contribution to dismantle the current governance regime of sports”.
“Since sports arbitration has not reformed itself in compliance with the rule of law, there is little alternative left to the CJEU but this,” he added.
In theory, if Capeta’s opinion is backed by the court when it makes its final ruling in the coming months, it could enable UEFA to appeal against the CAS decision which cleared Manchester City of breaching its FFP rules in 2020 via an EU national court, although UEFA chose not to contest the ruling in the Swiss courts, as its own statutes permitted, at the time.
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In practice, the real significance of a ruling 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 cases.
As Maduro points out, this is only the latest in a growing list of defeats for sport’s status quo, following CJEU rulings in recent cases involving FIFA, the International Skating Union and UEFA.
The most notable of those were the 2023 judgement in the European Super League case which said the threat of preemptive sanctions by FIFA and UEFA against the clubs and players that initially signed up to the competition were unlawful, and last year some of FIFA’s regulations on international transfers were also found to breach EU law in a case brought by former Chelsea, Arsenal and Real Madrid midfielder Lassana Diarra.
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Speaking to The Athletic, Antoine Duval, the head of The Hague-based Asser International Sports Law Centre, said: “If the court follows her opinion, any CAS award, even after a review by the Swiss Federal Tribunal, will be challengeable before any national court in the EU, on the basis of EU law.
“It will be costly and time-consuming, so only a few athletes and clubs would be able to afford it, and it won’t certainly yield wins for the challenger. But it will, at least, facilitate challenges, which ultimately will land at the CJEU.
“Basically, if the CJEU endorses this, it will further reinforce its position as the court of last resort to review transnational sports governance.”
In short, sport’s decades-long practice of policing itself and keeping its disputes out of the courts is over.
The Athletic has approached CAS, FIFA and UEFA for comment.
(FABRICE COFFRINI/AFP via Getty Images)
