The Advocate General of the Court of Justice of the European Union, Tamara Capeta stated this week that the Court of Arbitration for Sport (CAS) should not have the final say in sports law in the EU, which the continental courts should rather handle.
Since its creation in 1984, the CAS is the only forum authorized to resolve disputes in international sport, acting as the final instance in conflicts between athletes, organizations, and governing bodies of each discipline. However, Capeta points out in her writing that this system could be violating the fundamental rights of EU citizens and companies.
In her document, citing an example from FIFA, she states, “When a FIFA rule, or a decision based on such a rule, potentially infringes an individual’s right based on EU legislation, the constitutional system of the European Union grants that individual the right to effective judicial protection.”
The case that sparked the debate is that of the Belgian club RFC Seraing, which, along with the investment fund Doyen Sports, filed a complaint against FIFA and the Belgian and European football bodies over irregular contracts. They argued that mandatory CAS arbitration left them without guarantees that decisions would respect EU or national laws.
Although CAS decisions are binding, they can rarely be appealed to the Swiss Federal Supreme Court, as happened with the doping suspension of swimmer Sun Yang in 2021. However, Switzerland is not part of the European Union nor under the jurisdiction of the Court of Justice of the European Union, limiting the scope of these appeals.
If the Court of Justice of the European Union confirms Capeta’s opinion, courts in EU member states could review CAS decisions, something that is currently not possible. These decisions can only be challenged in Switzerland on specific procedural grounds, and cases are rarely overturned.
Moreover, the CJEU already issued recent rulings that have weakened the authority of FIFA and UEFA under EU law: in the case of the Super League and the dispute over Lassana Diarra’s transfer, it forced changes to rules blocking alternative competitions and the implementation of new provisional rules on contractual transfers.
Regarding the RFC Seraing case, Capeta stated that “FIFA’s sports arbitration clauses are mandatory. (CAS rulings) cannot be limited solely to public order issues and must be open to full judicial review.” The CAS, based in Lausanne, Switzerland, handles approximately 950 cases a year, with football being its largest workload. FIFA, one of its main clients, contributed a total of 2.5 million Swiss francs (€2.75 m) in 2023, representing more than 10% of the court’s income.
The advocate general, one of the eleven appointed to the CJEU, explained that her role is to advise the court but not to participate in decision-making. Although her opinion is not binding, it could mark a radical change in the governance of international sport. Neither FIFA nor CAS have commented on the opinion. However, if the CJEU adopts Capeta’s stance, it would open the door for national courts to review CAS rulings, balancing the autonomy of international sports organizations with the rights of European citizens.
