On January 16, 2025, Advocate General (AG) Tamara Ćapeta of the Court of Justice of the European Union (CJEU) issued an Opinion in Case C-600/23, potentially upending the long-standing presumption that arbitral awards issued by the Court of Arbitration for Sport (CAS) are insulated from EU judicial review. The AG Opinion posits that when EU law is implicated, national courts cannot be precluded from scrutinizing CAS decisions, despite the res judicata effect of CAS awards. Should the CJEU adopt this reasoning, the ramifications for sports arbitration could be profound, subjecting FIFA’s regulatory authority to EU legal oversight.

Background: The RFC Seraing Case and the CJEU Preliminary Queries

Royal Football Club Seraing (RFC Seraing), a Belgian club aiming to recover from relegation, partnered with Doyen Sports, ceding a portion of its players’ economic rights in exchange for funding. FIFA ruled that this arrangement violated its ban on third-party ownership (TPO), imposing fine and a transfer ban. RFC Seraing challenged the decision before CAS, which upheld FIFA’s ruling in 2017. The Swiss Federal Tribunal affirmed the CAS award in 2018, dismissing claims that the TPO ban contravened EU law.  Meanwhile, RFC Seraing and Doyen Sports pursued legal action in Belgium, but the Brussels Court of Appeal dismissed their case in 2019, citing the finality of the CAS ruling. The club then appealed to Belgium’s Court of Cassation, which referred the following preliminary questions to the CJEU:

• Does Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (Charter), preclude the application of provisions of national law such as Article 24 and Article 171[3](9) of the Code judiciaire (Belgian Judicial Code), laying down the principle of res judicata, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?

• Does Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter, preclude the application of a rule of national law according probative value vis-à-vis third parties, subject to evidence to the contrary which it is for them to adduce, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?

AG Ćapeta’s Opinion: A Challenge to the Autonomy of Sports Arbitration?

In response to the first question, the AG assessed whether EU case law concerning the interplay between EU law and arbitration—both commercial and investment—was applicable to FIFA’s arbitration system. 

Examining key precedents such as Nordsee and Eco Swiss, the AG highlighted two critical differences between commercial arbitration and the CAS system under FIFA’s statutes. First, FIFA’s arbitration is mandatory, not voluntary like commercial arbitration. Players and clubs do not freely choose to submit disputes to CAS; they are compelled to do so. Second, FIFA’s system is self-enforcing, meaning CAS awards do not need enforcement by national courts and can be applied directly by FIFA. This limits the opportunity for national courts to engage in meaningful judicial review of these awards under EU law. Given these differences, the AG concluded that the principles developed for commercial arbitration cannot be transposed wholesale to FIFA’s mandatory arbitration framework.

Regarding the Achmea case, which invalidated intra-EU investor-state arbitration clauses on the basis of incompatibility with EU law, the AG distinguished the FIFA arbitration system from the bilateral investment treaty (BIT) context. While Achmea centred on mutual trust between Member States’ courts, FIFA’s arbitration system stems from its private organizational rules rather than inter-state agreements. Therefore, the Achmea reasoning does not directly apply to the FIFA dispute resolution model.

The AG further drew attention to the International Skating Union (ISU) case, emphasizing that mandatory sports arbitration requires a distinct approach to judicial review. The mandatory structure of CAS arbitration effectively excludes athletes and clubs from access to national courts, curtailing their ability to challenge regulatory measures that may infringe EU law. Given that neither CAS nor the Swiss Federal Tribunal qualifies as an EU court, their rulings escape proper EU judicial oversight. This means that regulations affecting competition law, the free movement of workers, and fundamental rights can remain beyond the reach of EU courts, despite their significant impact on European athletes and clubs.

To address this imbalance, the AG stressed that national courts must retain the ability to review CAS awards in their entirety when EU law is at stake. Judicial review should not be confined solely to public policy concerns but should encompass all relevant provisions of EU law.

The AG also examined whether CAS awards fall within the scope of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC). While the parties assumed that the NYC applied to CAS decisions, the AG questioned this premise, arguing that the NYC presupposes free and voluntary agreements to arbitration. Since CAS jurisdiction is mandatory, athletes and clubs do not freely consent to arbitration but are forced to accept it as a condition of professional participation. If this reasoning is further examined and upheld, CAS awards may no longer benefit from automatic enforcement under the NYC within the EU, substantially diminishing their legal authority and exposing FIFA’s regulatory model to greater judicial scrutiny. Even if the NYC applies to CAS awards, its provisions on limited judicial review should be interpreted in a way that does not conflict with the requirement for full judicial review under EU law.

In conclusion, the AG opined that national courts should be able to review CAS awards insofar as they intersect with EU law, ensuring that individuals can effectively challenge the validity of FIFA’s rules. The AG thus proposed that the Court answer the first question in the negative, asserting that national laws granting res judicata to CAS awards, without the possibility of judicial review by a national court, are incompatible with EU law.

With respect to the second question, which concerned whether granting rebuttable probative value to arbitral awards reviewed by non-EU courts infringes the right to effective judicial protection, the AG disagreed with RFC Seraing and Doyen’s assertion that such a rule reverses the burden of proof and thus hinders access to justice. Instead, the AG concluded that the rule does not prevent national courts from fulfilling their obligations under EU law, including submitting preliminary references when needed.

Potential Consequences: A New Era of EU Oversight in Sports Arbitration?

The AG’s Opinion represents a significant challenge to the long-held assumption that CAS awards are shielded from EU judicial intervention. If the CJEU affirms this stance, FIFA’s regulatory framework will no longer operate in a legal vacuum but will be subject to the EU’s judicial scrutiny.

This shift would further erode the finality of arbitral decisions, reinforcing a broader trend wherein the EU systematically expands its jurisdiction over domains once thought to be outside its purview. What began as a limited review of public policy considerations has steadily extended into investment arbitration and now appears poised to transform the landscape of sports arbitration. As the EU asserts its role as the ultimate arbiter of legal compatibility, the once-autonomous realm of private dispute resolution faces an uncertain future under the ever-expanding reach of European judicial authority.

By Maria Paschou, Petra Pataki and Barbara Sándor