ECJ Advocate General’s Opinion Calls for Full Judicial Review of CAS Awards

In an opinion dated January 16, 2025, Advocate General Tamara Capeta of the Court of Justice of the European Union (CJEU) proposed that the awards passed by the Court of Arbitration for Sport (CAS) be subject to a full judicial review by national courts to ensure their compatibility with EU law.

Currently, the Swiss Federal Supreme Court is the only ordinary court allowed to review the arbitral award decided by CAS, and the grounds for review are limited.

Background

This opinion was rendered in a case involving disciplinary measures imposed on Belgian football club Royal Football Club Seraing for violating FIFA’s rules prohibiting the third-party ownership of players’ economic rights.  These form part of FIFA’s ‘Regulations on the Status and Transfer of Players’ and have been in effect since January 2015.  The measures imposed on the club were later confirmed by both CAS and the Swiss Federal Supreme Court.

When the issue highlighting the breach of EU law by these FIFA rules was brought up before the Belgian courts, the courts declined jurisdiction due to Belgian law, which accords the force of res judicata to certain types of commercial arbitration awards, including CAS awards. This provision prevented the courts from reviewing whether FIFA’s rules aligned with EU law.

On appeal, the Cour de cassation (Court of Cassation, Belgium) sought guidance from the CJEU on whether EU law precludes the application of such national provisions to an arbitral award that has been reviewed solely by a court of a non-EU state (in this case, Switzerland).

Advocate General’s Opinion

The Advocate General outlined key differences between commercial arbitration and CAS arbitration under the FIFA statutes, suggesting the following:

• Mandatory Nature of Arbitration Implies Full Judicial Review: Unlike commercial arbitration, which is voluntary, CAS arbitration under FIFA statutes is mandatory. As parties do not freely choose to exclude the application of some EU rules to their situation, the reasons that justify a limited scope of judicial review in commercial arbitration do not apply here. Therefore, national courts should have the authority to review FIFA’s rules against any and all rules of EU law, regardless of CAS’ findings.

• Self-Enforcing Nature of FIFA’s Arbitration System Necessitates Judicial Review: FIFA’s ability to enforce arbitral awards on its own means that the question of compatibility of an award with EU law is unlikely to reach a ‘court or tribunal’ in the sense of Article 267 TFEU in enforcement proceedings. The principle of effective judicial protection requires that national courts have the ability to review FIFA’s rules for conformity with EU law. This includes the right to challenge the validity of FIFA’s rules even after a CAS award confirms their conformity with EU law. Therefore, attaching the force of res judicata to a CAS award regarding EU law violations contradicts the principle of judicial protection.

The Advocate General opined that individuals whose EU law rights may have been infringed should have direct access to challenge FIFA’s rules, even after a CAS award upholding their validity. The review should cover all EU law provisions, not just public policy, and be available in any legal proceedings, whether initiated as a direct challenge to FIFA’s rules, in enforcement proceedings of a CAS award, or in other procedures, such as those for damages.

Opinion Not Binding

It is important to note that the Advocate General’s opinion is not binding on the CJEU. The role of the Advocates General is to propose independent legal solutions for cases, and the final judgment will be delivered at a later date.