1. Why this folder?
Heavily sanctioned by FIFA in 2015 (150,000 Swiss francs penalty and three transfer windows without transfer), because it considered that he had not respected the rules prohibiting the “third ownership” of players, Seraing had seen the Arbitration Tribunal of sport (TAS) confirm this decision in 2017, on appeal. The only way to challenge the CAS was to go to the Swiss federal court, which the Liège club did, in vain.
Seraing then took action before the Belgian courts to challenge the compatibility of these rules with those of the European Union (EU), and the Belgian Court of Cassation referred the following question to the CJEU in 2023: is it logical that the body monitoring CAS’s compliance with European laws is a court of justice of a country (Switzerland) that is not a member of the EU?
2. What does the attorney general say?
Tamara Capeta followed the Dupont-Hissel cabinets. “Direct access to national courts (…) must be granted to all sports stakeholders in the (European) Union” and this, even if a CAS sentence has been handed down. We must be able to verify the compatibility of the awards of these forced arbitrations with European law. This is not the case since the only possible appeal takes place before the equivalent of the Swiss Court of Cassation, which has little regard for European law.
gullCAS awards must be subject to judicial review.
The general advocate throws a wrench into the pond by recalling the forced nature of the arbitration, here imposed by FIFA. If the Court follows it on this point, it would be a small earthquake, the aftershocks of which will go beyond not only football, but perhaps even the world of sport. Unlike other commercial sectors, “FIFA sports arbitration clauses are mandatory”points out the general advocate. “Sentences handed down within the framework of this system (…) must be subject to full judicial review.” And if the decisions of the CAS were henceforth called into question by national courts, which is not really the case in Switzerland, the body would gradually lose its credibility.
-Finally, the role of FIFA in implementing arbitration awards itself is also criticized. “In the present case, it was able to effectively apply the sanctions (…) without having to resort to a court.” However, if the other party considers that the CAS decision is contrary to European law, it cannot currently do anything to defend itself, except for a procedure for damages after the fact. This is no longer possible, believes the general advocate.
3. What consequences for sport… and for refereeing?
A serious challenge to the principle of arbitration imposed by many sports federations before the CAS could fall by July. “In view of these conclusions, we can already consider that the particularly heavy disciplinary sanctions which were inflicted by FIFA on Seraing (…) were the result of a completely illegal procedure. This will not remain without consequences “warns the Dupont-Hissel cabinet, which continues: “The conclusions of Attorney General Capeta apply not only to forced arbitrations at CAS resulting from the statutes of FIFA, UEFA and their member federations but also to all other forced arbitrations, in particular those imposed by the statutes of most international sports federations.”
The judgment could even serve as jurisprudence beyond sport, as soon as forced arbitration is attempted, and as soon as the power of self-execution like that of FIFA is required. After the decisions in the Diarra or SuperLeague cases, here is a new earthquake in perspective. Clearly, nothing is going well for FIFA.
* “Third party ownership” is the fact of seeing an actor, who is neither the player himself nor his club, holding the economic rights of a player.
