Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see here, here and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be.

The ISU judgement in a nutshell

On 23 June 2014, two professional speed skaters belonging to the Royal Netherlands Skating Federation (KNSB), Mr Tuitert and Mr Kerstholt, filed a complaint to the European Commission (the “Commission”) against the ISU (of which, the KNSB is a member) for an alleged violation of Article 101 and 102 TFEU by the ISU Prior Authorisation and Eligibility Rules. Three years later, on 8 December 2017, the Commission issued its decision, considering the compatibility with EU competition law of (i) the ISU Eligibility Rules (i.e., the provisions determining the conditions in which athletes could take part in skating competitions); (ii) the ISU Prior Authorisation Rules (i.e., the provisions setting out the procedure to follow in order to obtain from the ISU the authorisation to organise international skating competitions) and (iii) the ISU Arbitration Rules (i.e., the provisions establishing that, in case of disputes, the relevant ISU decision would have had to be appealed at the CAS).[2] In essence, the Commission found that the Eligibility and Prior Authorisation Rules did not satisfy the conditions required by Article 101(3) TFEU in order to benefit from an exemption and, importantly, that the Arbitration Rules had to be revised because they were reinforcing the restriction of commercial freedom already determined by the substantive rules under scrutiny. 

The ISU appealed the EC’s Decision to the General Court (the “GC”), seeking its annulment. On 16 December 2020, the GC issued its decision (the “Appealed Decision”) rejecting most of the appeal. However, the judges annulled the part of the EC’s Decision dedicated to the ISU Arbitration Rules. In essence, the GC considered that conferring exclusive jurisdiction to the CAS, a specialised arbitral tribunal capable of quickly resolving these disputes, was justified by legitimate interests linked to the specific nature of the sport.[3]

On 26 February 2021, the ISU filed an appeal to the ECJ against the ruling of the GC, while the speed skaters (supported by the Commission) filed a cross-appeal requesting to set aside the Appealed Ruling in so far as it annulled the part of the EC Decision that concerned the Arbitration Rules.  

Regarding these, the ECJ was not convinced by the GC’s conclusion that legitimate interests linked to the specific nature of sport can justify arbitration rules when they confer exclusive jurisdiction to the CAS to review decisions capable of touching upon public policy provisions of the EU (such as matters of EU competition law). Instead, it stressed that the contested Arbitration Rules concerned disputes that could arise in the context of economic activities linked to the organisation and marketing of international speed skating events. Hence, any disputes subjected to these Arbitration Rules come under EU competition law, and the relevant decision must comply with it.[4] The ECJ demanded that the court having jurisdiction to review the award perform an effective judicial review to guarantee that substantive rights – part of EU public policy – are safeguarded.[5] In this context, the ECJ also underlined that it is not sufficient to provide ex postremedies allowing parties to seek damages for violations of competition law condoned through the arbitration process.[6]

A standstill between two systems which inevitably cross paths

According to the ECJ, any provision or decision of an association of undertakings crossing the boundaries of “questions of interest solely to sport […] extraneous to any economic activity”[7] and potentially restrictive of competition must be scrutinised through the lens of EU competition law.

A problem of coexistence between two legal regimes that inevitably interact seems to be evident. On the one hand, the international sports arbitration system, with the CAS as specialised dispute resolution method and the SFT as judicial apex, and on the other EU law and the EU institutions.  

i.               The problem does not lie with the CAS in itself…

Notoriously, CAS panels do apply EU law when required.[8] The legislative basis upon which they do so is Article R58 CAS Code,[9] Article 19 of the Swiss Federal Act on Private International Law (PILA)[10]  and – depending on the circumstances – Article 187(1) PILA.[11] Over the years, CAS panels have regularly assessed the compatibility of regulations of UEFA and FIFA with EU Competition law. 

In CAS 2007/A/1287 Danubio FC v. FIFA & FC Internazionale Milano S.p.A., the panel analysed the compatibility of the FIFA solidarity mechanism with EU competition law. On that occasion, it recognised that “it is not only allowed, but also obliged to deal with the issues involving the application of EC law in the present matter”. The same conclusion was reached by other panels on several occasions over the years (see, inter alia, CAS 2009/A/1788 UMMC Ekaterinburg v. FIBA Europe e. V., In CAS 2012/A/2852 S.C.S Fotbal Club CFR 1907 Cluj S.A. & Manuel Ferreira de Sousa Ricardo & Mario Jorge Quintas Felgueiras v. FRF, CAS 2014/A/3561 & 3614 IAAF & WADA).

A recent CAS award entirely revolved around the compatibility of the newly adopted FIFA Football Agents Regulations (FFAR) with EU law.[12]

The ECJ’s demands for an effective scrutiny through the lens of EU Competition law of certain types of regulations of associations of undertakings is thus met by the arbitral body having (almost invariably) exclusive jurisdiction to review them.

ii.              …but with the court which reviews its awards

However, while a CAS award can be challenged before the Swiss Federal Tribunal (SFT) on the ground of – inter alia – incompatibility with public policy,[13] Swiss public policy and EU public policy (which covers EU competition law[14]) are two very distinct concepts and the SFT (i) only takes the former into account and (ii) certainly does not refer questions to the ECJ for preliminary rulings. 

Hence, the failure to apply (or the wrong application of) EU law does not necessarily result in the setting aside of the relevant CAS award since it does not violate Swiss public policy.[15]

On a few occasions, the SFT has considered whether EU competition law is part and parcel of Swiss public policy.[16] In a judgment of 8 March 2006, the SFT rejected a request to set aside an arbitral award on the basis of a claimed incompatibility with substantive public policy due to an alleged violation of EU (and Italian) competition law. On that occasion, the SFT – once having formulated a definition of Swiss public policy[17] – determined that EU competition law does not meet the test.[18]

Thus, even if EU law is considered to be a mandatory foreign substantive law by the relevant arbitral panel, this does not make it part of the Swiss public order. The SFT seems to be content with the conclusion that the public policy weighing on the Court is different from the one weighing upon the arbitrator.[19]

Ultimately, the problem is not really the CAS per se, but the fact that it is seated in Switzerland.

Is UEFA paving a way forward to diffuse the potential conflict between CAS arbitration and EU competition law?

It is not the first time that the EU judges draw the SGBs’ attention to the fact that their rules and decisions are not adopted in a social and economic vacuum and that their (a priori legitimate) governing authority needs to account for its effects on the EU’s internal market. As illustrated in the ISU case, this extends to dispute resolution processes that are provided for in the SGBs’ rulebooks. 

UEFA has recently attempted to address these concerns by amending its Authorisation Rules and its Statutes. Article 16 of the Authorisation Rules, concerning ‘Dispute resolution’, was amended through the addition of paragraph 3 and 4 reading as follows:

3. CAS shall primarily apply the UEFA Statutes, rules and regulations and subsidiarily Swiss law. The party filing the statement of appeal and/or a request for provisional measures, whichever is filed first with CAS, shall indicate in its first written submission to CAS whether the party accepts Lausanne, Switzerland, as seat of the arbitration or if the seat of the arbitration shall be in Dublin, Ireland, in derogation of Article R28 of the CAS Code. In the latter case, UEFA is bound by the choice of Dublin, Ireland, as seat of the arbitration and UEFA shall confirm its agreement to such seat in its first written reply to CAS. In case no seat is indicated in the first written submission to CAS, Article R28 of the CAS Code shall apply. 

4. The decision of CAS shall be deemed to be made at the seat of the arbitration determined as per paragraph (3) above. The CAS award shall mention the seat of the arbitration. The decision of CAS shall be final and binding to the exclusion of jurisdiction of any ordinary court or any other court of arbitration. This is without prejudice to the right of appeal of any party in accordance with the applicable law of the seat of the arbitration as well as the right to challenge the enforcement or recognition of a CAS award on grounds of public policy (which may include European Union public policy laws) in accordance with any applicable national or European Union procedural laws. 

Article 63 of Statutes, in turn, was modified in its paragraph 2 (now reading “CAS shall primarily apply the UEFA Statutes, rules and regulations and, subsidiarily, Swiss law. In addition, any party before CAS shall be entitled to raise mandatory provisions of foreign law in accordance with Article 19 of the Swiss Private International Law Act, which may include European Union public policy laws”) and an entirely new third paragraph was added to it:

3. CAS awards shall be final and binding to the exclusion of jurisdiction of any ordinary court or any other court of arbitration. This is without prejudice to the right to file an appeal against a CAS award before the Swiss Federal Tribunal in accordance with Swiss law and the right to challenge the enforcement or recognition of a CAS award on grounds of public policy (which may include European Union public policy laws) in accordance with any applicable national or European Union procedural laws or the right to file a case before a competent competition authority.

While laudable, the clarification in the Statutes does not add much to the picture. As seen, CAS panels were already applying foreign mandatory law. The new paragraph 3 does not seem to change the general balance of the UEFA arbitration rules either, since the possibility to challenge the enforcement or recognition of a CAS award existed already.

The changes to the Authorisation Rules are much more significant with regard to the CAS arbitration procedure. They concern disputes related to UEFA’s decisions not to authorise the organisation of International Club Competitions.[20]According to the Authorisation Rules, a potential organiser needs to meet administrative and financial criteria,[21]sporting and technical criteria,[22] ethical criteria,[23] sporting merit criteria,[24] and submit to UEFA a request for authorisation containing all the relevant information and supporting documents concerning the mentioned prerequisites in order to obtain authorisation to organise an International Club Competition.[25] Any dispute related to these rules has to be brought to the CAS. Yet, the appellant can derogate to Article R28 of the CAS Code and choose to have the CAS seated in Dublin rather than in Lausanne and if it does so: (A) UEFA is bound by that choice; (B) the relevant award will be subjected to setting aside proceedings before the Irish High Court (on the limited grounds of Article 34(2) of the Model Law, which include public policy, as explained here).

The amendment is significant. Is it revolutionary? Probably not, but it certainly shows UEFA’s willingness to appease Luxembourg and Brussels’ concerns. The Authorisation Rules are a textbook example of the type of rules whose compatibility with EU competition law might be challenged and for which access to the preliminary reference procedure ought to be available. 

Does the reform address the ECJ’s concerns as expressed in the ISU ruling? In part, undoubtedly. In the future, in cases involving the Authorisation Rules, the appellants will be able to choose to bind UEFA to an arbitral process subjected to the review of the national court of a Member State which can refer to the ECJ a preliminary reference. However, there are many more UEFA rules that can potentially infringe EU competition law which are currently outside of the scope of this new procedure.[26]

Is this a model for other SGBs to follow? Possibly. It preserves the CAS as a specialised international arbitral tribunal sitting in Switzerland (which is dear to many stakeholders for a variety of reasons) yet guaranteeing that – when it comes to some rules typically touching upon issues of EU competition law – potentially affected parties can opt to have an effective EU law review by choosing a seat of the arbitration within the EU, while at the same time being reassured about the enforceability of the award (as Ireland is signatory of the New York Convention).

This compromise appears to offer a feasible and potentially fruitful path to appease the concerns of the ECJ, while preserving the specific relationship between sports governance and the CAS. In the end, the CAS might have to be ‘EUropeanised’, but it seems high time to ensure a greater embeddedness of sports arbitration in the EU legal order in order to protect the lex sportiva from a head-on conflict with EU law and the EU institutions.

[1] As argued by Antoine Duval: “one of the least visible and yet potentially most consequential findings in the trio of decisions”.

[2] In parallel, Article 25 of the ISU Statutes provided for the possibility for athletes who wished to challenge a decision imposing a penalty of ‘loss of eligibility’ or ‘ineligibility’ on them to lodge an appeal against that decision before the CAS.

[3] Appealed Decision, para. 156.

[4] ISU judgment, para. 189.

[5] Ibid, paras. 198 – 199.

[6] Ibid, paras. 200 – 204. 

[7] It is interesting to note that the revival of the concept of ‘purely sporting rule’ by the Court has been authoritatively criticised (see here and here).

[8] For a complete overview of the interaction between EU law and the CAS, see Duval A (2015) The Court of Arbitration for Sport and EU law: chronicle of an encounter. Maastricht Journal of European and Comparative law, 22(2) 224-255.

[9] Article R58 CAS Code (law applicable to the merits): “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision” (emphasis added)

[10] Article 19 PILA: “1. If interests that are legitimate and clearly preponderant according to the Swiss conception of law so require, a mandatory provision of a law other than the one referred to by this Act may be taken into consideration, provided the situation dealt with has a close connection with that other law. 2. In deciding whether such a provision is to be taken into consideration, consideration shall be given to its purpose and the consequences of its application, in order to reach a decision that is appropriate having regard to the Swiss conception of law”.

[11] Article 187(1) PILA: “The arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to the rules of law with which the case has the closest connection”.

[12] The panel indeed assessed whether Article 15(2) FFAR: (i) pursued legitimate objectives recognised by the EU legal order (paras. 283 – 288); (ii) was appropriate to pursue those objectives (paras. 289 - 297) and (iii) was proportionate (paras. 298 – 310) and concluded in the affirmative with respect to each of them.

[13] See Article 190(2) lit. e) PILA.

[14] See, for instance, Case C-126/97 – Eco Swiss China Time Ltd. v Benetton International NV, [1999] ECR I-3055.

[15] See Sandra de Vito Bieri – the application of EU law by arbitral tribunal seated in Switzerland in ASA Bulletin 1/2017 (Volume 35, pages 55 – 66), who points out that the only chance for such an action to be successful would be in the improbable case in which the CAS were to find EU law applicable to the dispute but were to deny jurisdiction to decide on matter of EU law.

[16] ATF 128 III 234, consid. 4c at 242; Judgment 4P.119/1998 of 13 November 1998, consid. 1b/bb, published in ASA Bulletin 1999 at pp 529 et seq.

[17] Judgment of 8 March 2006, 4P.278/2005, consid. 2.2.3: “[…] an award is incompatible with public policy if it disregards essential and widely recognised values which, in accordance with conceptions prevalent in Switzerland, must constitute the foundation of any legal order”.

[18] In essence, the SFT did not consider competition law to be a fundamental principle of law applicable in any legal order given the different extents to which this is accepted in the various legal systems. In particular, with respect to EU competition law, the SFT observed that the values that it protects are confined to the EU because drafted in the attempt to guarantee the functioning of the European internal market, and – as such – they cannot be considered part of a more universal principle that can be shared by all countries, including Switzerland

[19] Ibid, consid. 3.3. See Landolt P. “Judgment of the Swiss Supreme Court of 8 March 2006 – A Commentary”.

[20] See Article 2 of the Rules for more details on their scope of application.

[21] Article 4 of the Rules.

[22] Article 5 of the Rules.

[23] Article 6 of the Rules.

[24] Article 7 of the Rules.

[25] Articles 8 to 12 of the Rules.

[26] There are rules admittedly escaping EU law scrutiny, however – as poignantly argued by Prof. Weatherill here – those entirely extraneous to economic activity are not many and possibly the focus should not be on their purely sporting nature but rather on the effect of their practice.