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≡ THE 5-RING CIRCUS ≡
“I am of the view that effective judicial protection demands that both access to national courts and their powers of review be expanded in relation to mandatory arbitration, beyond their current powers in relation to commercial arbitration.
“Direct access to challenge FIFA’s rules, despite a [Court of Arbitration for Sport] award confirming their validity, should be available to subjects who claim that their rights guaranteed by [European Union] law have been infringed. The scope of review should not be limited to public policy, but should include all relevant EU law provisions.
“It should be possible to exercise such review in all judicial proceedings, be they initiated as a direct challenge to FIFA’s rules, in enforcement proceedings of a CAS arbitral award, or incidentally in a different type of procedure, such as the one initiated by an action for damages.”
That is from the 16 January opinion by European Court of Justice Advocate General Tamara Capeta (CRO), writing an advisory to the Court concerning a case brought by a Belgian football club – Royal Football Club Seraing – against FIFA, the European Football Union (UEFA) and the Belgian football federation, protesting the inability for the club to bring a case against these governing bodies under European law.
Yes, it’s lawyer talk, but the implications are enormous. The formation of the Court of Arbitration for Sport (CAS) in 1984 – driven by the International Olympic Committee – created a way for individuals and organizations to lodge judicial-style appeals against the IOC, International Federations and other non-governmental organizations involved in sport, but in the more private format of arbitration.
Most of the cases shown on the CAS calendar deal with football, far more than any other sport. And under FIFA rules, filings must be made with CAS and not with courts in individual countries. So, when RFC Seraing lost its appeal at CAS over the transfer of player contracts to a third party (a company in Malta), it protested that it did not have the chance – as a European company – to litigate the question under European law.
Now comes Advocate General Capeta, writing an advisory brief for the European Court of Justice. It is not binding on the Court, but offers an independent view of the case. The judges will consider the matter separately.
Capeta makes the point that unlike commercial arbitration, which is voluntarily entered into by two or more parties, the referral to CAS for disputes is mandatory under FIFA rules. And FIFA, or one of its member associations, will enforce the judgement. But (citations omitted for readability):
“[W]hen a FIFA rule, or a decision based on such a rule, potentially infringes the right of an individual based on EU law, the constitutional system of the European Union bestows on that individual the right to effective judicial protection …
“[T]he Member States are under an obligation to ensure that subjects of EU law genuinely enjoy this fundamental right. That means that the Member States must ensure that an individual who claims that his or her EU-based right is infringed has access to an independent court previously established by law …
“CAS, or the Swiss Federal Tribunal which has jurisdiction to review its awards, are not such courts. Thus, their assessment of the compatibility of FIFA’s rules with EU-based rights does not satisfy the requirement of effective judicial protection in EU law.”
This is the crux of the issue and if it were to be adopted, could potentially blow up at least the European part of the system of dispute resolution in Olympic sport today, sending cases into national court systems, potentially for years at a time.
Capeta, noting the issues and the stakes, suggests to the Court:
● “After analysing the extent to which those two lines of jurisprudence may or may not be relevant for FIFA’s arbitration system, I will propose that the Court develop a specific interpretation suitable for mandatory arbitration, such as that carried out by CAS in the FIFA dispute resolution system. …
● “I am of the view that effective judicial protection demands that both access to national courts and their powers of review be expanded in relation to mandatory arbitration, beyond their current powers in relation to commercial arbitration.
● “Direct access to challenge FIFA’s rules, despite a CAS award confirming their validity, should be available to subjects who claim that their rights guaranteed by EU law have been infringed. The scope of review should not be limited to public policy, but should include all relevant EU law provisions.”
Capeta does not indicate what she believes an appropriate model “suitable for mandatory arbitration” would be other than access to national courts, which could simply eliminate the need for the Court of Arbitration for Sport altogether for disputes under European law.
There’s no timetable on the European Court of Justice decision on this case, but it will be carefully watched to see if the Court decides to vaporize the Court of Arbitration for Sport’s suitability as a venue to resolve disputes in the Olympic-sport world.
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