Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

New training - University of Amsterdam Masterclass on Sports Law and Governance - October 2025-January 2026

Dear readers,

The University of Amsterdam is organising a Masterclass on 'Sports Law and Governance' between October 2025–January 2026.


The hybrid training is structured around 6 modules dealing with key legal issues related to athlete representation. With my colleague, Dr Daniela Heerdt, we are hosting one module at the T.M.C. Asser Instituut, which will be focused on the human rights of athletes.

You'll find more information about the training at https://www.uva.nl/en/programmes/professionals/sports-law-and-governance/sports-law-and-governance.html?origin=7k8gIZTOQA211FZ1DnDUow

Join us to discover what human rights can (and cannot) do for athletes!

Call for contributions - Sporting Succession in Selected Jurisdictions - Edited by Jacob Kornbeck and Laura Donnellan - Deadline 1 October 2025

  

Expressions of interest are invited from colleagues who would like to contribute to an edited book on Sporting Succession in Selected Jurisdictions. Interested colleagues are invited to send their abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com. If you are unsure about how your research would fit in, please feel free to reach out to us via email before writing your abstract. Abstracts received will be included into a book proposal to be submitted to a major English-speaking publisher. Colleagues will be notified by us once we have received the reaction of the publisher, at which point we shall decide about further steps to be taken in the process. 

 

The book will be edited by Jacob Kornbeck, BSc, MA, LLM, PhD, DrPhil, Programme Manager in the European Commission (but acting strictly in a private capacity) and external lecturer at the University of Lille, inter alia, and Laura Donnellan, LLB, LLM, PhD, Associate Professor in the School of Law, University of Limerick.

 

The following incorporates the most salient ideas from a presentation made by Jacob Kornbeck at the Sport&EU Conference in Angers (June 2023). 

 

The concept of sporting succession permits making claims against sporting entities which can be considered as sporting successors to previously existing sporting entities, even where the previous entities have been wound up and have been dissolved under normal bankruptcy and succession rules. No fault is required for sporting succession to be invoked and considered, and the concept may even apply in certain cases where the previous entity has not even been dissolved legally (CAS 2023/A/9809 Karpaty FC v. FIFA, Cristóbal Márquez Crespo & FC Karpaty Halych. 18 July 2024). While the implementation of the relevant FIFA rules by national FAs has been documented comprehensively in a recent edited book (Cambreleng Contreras, Samarath & Vandellós Alamilla (eds), Sporting Succession in Football. Salerno, SLPC, 2022), no known book or article addresses the overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. 

 

Provisions on sporting succession were first inserted into the FIFA Disciplinary Code 2019 with the effect that, whenever a sporting entity declares bankruptcy or is otherwise wound up, the notion of sporting succession applies to its unpaid financial liabilities and may be imputed to a so-called sporting successor, even if that successor is an entity legally distinct, according to the usual rules under public law, from the previous entity. Article 14 of the FIFA Disciplinary Code 2023 governs ‘failure to respect decisions,’ understood as failure to ‘pay another person (such as a player, a coach or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee, a subsidiary or an instance of FIFA or a CAS decision (financial decision), or anyone who fails to comply with another final decision (non-financial decision) passed by a body, a committee, a subsidiary or an instance of FIFA, or by CAS.’ Article 21(4) extends the scope of the provision to the ‘sporting successor of a non-compliant party’ who ‘shall also be considered a non-compliant party and thus subject to the obligations under this provision. Criteria to assess whether an entity is to be considered as the sporting successor of another entity are, among others, its headquarters, name, legal form, team colours, players, shareholders or stakeholders or ownership and the category of competition concerned.’ Further provision is made in Article 21(7). In practice, this means that a club which carries on the legacy on a previous club, drawing on its cultural capital, fan base, etc., may be liable to paid unpaid debts of that previous club. These arrangements seem unusual prima facie.

 

Organs of FIFA have power to enforce these rules and to hear appeals against such decisions, while their decisions may be appealed to the Court of Arbitration for Sport (CAS) and/or to the Swiss judiciary (see Victor Piţurcă v Romanian Football Federation & U Craiova 1948 SA (CAS 2021/A/8331) (2023) as well as well as the rulings of the Federal Tribunal in the cases Youness Bengelloun (2022) and Júlio César da Silva et Souza (2022) based on Article 190 LDIP (Federal Act on Private International Law). 

 

While the concept of sporting succession offers a striking example of a provision for specificity enshrined in a sporting regulation and applied within the sports community, its pertinence under public law remains largely unaccounted for. With the (apparent) exception of one Swiss PhD thesis (Derungs, 2022), the issues which it raises seem so far to have failed to trigger the scholarship which they might deserve, especially in a comparative legal research perspective. The aim of the envisaged edited book is to explore the issue in a comparative perspective, not only across jurisdictions but also across different branches of the law. We hope in particular to receive abstracts on the following:


  • Examples from the most representative European (and possibly extra-European) countries of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. Ideally, the book should include chapters from and about the biggest European countries which are most relevant to the football industry while, at the same time, it would seem crucial that the most important legal traditions (French and German civil law, common law, Nordic law) should be represented. 
  • Perspectives of players and other stakeholders.
  • Examples from other sports than football, if appropriate.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and other branches of lex sportiva, if applicable.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession, on the one hand, and new developments in sports such as AI and esports, on the other.
  • If we have overlooked a meaningful nuance, please feel free to flag this in your submission and make corresponding proposals to us. 

Please send us your abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com no later than 1 October 2025. 

Reflecting on Athletes' Rights on the Road to the Olympic Games: The Unfortunate Story of Nayoka Clunis - By Saverio Paolo Spera and Jacques Blondin

Editor's note: Saverio Paolo Spera is an Italian qualified attorney-at-law. He holds an LL.M. in international business law from King’s College London. He is the co-founder of SP.IN Law, a Zurich based international sports law firm. Jacques Blondin is an Italian qualified attorney, who held different roles at FIFA, including Head of FIFA TMS and Head of FIFA Regulatory Enforcement. He is the co-founder of SP.IN Law. The Authors wish to disclaim that they have represented Ms. Nayoka Clunis before the Court of Arbitration for Sport in Lausanne in the context of the proceedings which led to the Award of 31 July 2024.

 

  

Every four years since more than a century,[1] a spectacular display of sportsmanship takes place over the course of a few weeks during the summer: the Olympic Games.[2]

         For thousands of athletes around the globe, the Olympic Games are “the pinnacle of success and the ultimate goal of athletic competition”.[3] In their quest to compete in the most important stage of their sport, they endure demanding and time-consuming efforts (often including considerable financial sacrifices). These endeavours occasionally lead to everlasting glory (the exploits of athletes of the calibre of Carl Lewis, or more recently, Usain Bolt[4] still resonate among sports’ observers), more often to a shorter gratification. Whether their gestures end up going down the sport’s history books or last the span of a few competitions, athletes are always the key actors of a magnificent event that continues to feed the imagination of generations of sports fans. 

And yet, situations may occur when athletes find themselves at the mercy of their respective federations in the selection process for the Olympic Games and, should the federations fail them (for whatever reason), face an insurmountable jurisdictional obstacle to have their voice heard by the only arbitral tribunal appointed to safeguard their rights in a swift and specialised manner: the Court of Arbitration for Sport (the “CAS”).[5]

This is the story of Nayoka Clunis, a Jamaican world class hammer throw athlete who had qualified for the Olympic Games of Paris 2024 and yet, due to no fault of her own, could not participate in the pinnacle of competitions in her sport. Though eligible in light of her world ranking, she was failed by her own federation[6] [AD1] [SPS2] and ultimately found herself in the unfortunate – but legally unescapable – vacuum whereby neither the CAS Ad Hoc Division in Paris nor the ‘regular’ CAS division in Lausanne had jurisdiction to entertain her claim.  

The aim of this paper is not to discuss whether Ms. Clunis would have had a chance to successfully prove her claims and compete in Paris had her case been heard on the merits, nor to debate about the appropriateness of a national federation’s selection process (also because Ms. Clunis never challenged it, having been eligible ‘from day one’).[7] Retracing the story of a sportswoman’s dramatic misfortune, this paper aims at providing an opportunity to reflect on how effective the safeguard of athletes’ rights in the context of the Olympic Games actually is. More...

Call for Papers - Long-term contracts in sport: The private foundations of sports law and governance - University of Inland Norway - Deadline 15 June

The University of Inland Norway and the Asser International Sports Law Centre invite the submission of abstracts for a workshop in Lillehammer on 4 and 5 December exploring the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

Contracts play a crucial role in the world of sport, particularly long-term contracts. Contractual agreements form the foundation of transnational sports governance, SGBs are all formally the product of a specific time of contract (be it in the form of an association or corporation) often justifying the autonomy of sport and its private governance at a (more or less far) distance from the state.

Moreover, contracts establish long-term commitments between the parties involved, raising a variety of questions regarding the asymmetry in their positions, the scope of party autonomy, contractual mechanisms for addressing uncertainty, and their interaction with domestic and international mandatory regulations, among others. In short, it is impossible to fully understand the operation and limitations of transnational sports law and governance without investigating the many ways in which it is embedded in long-term contracts ruled by a variety of contract laws.

This workshop proposes to explore the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

We welcome proposals touching on the following issues/case studies:

  • The concept of time in sport and the definition of ‘long-term’ in sport-related contracts;
  • The function of long-term contracts in transnational sports governance;
  • The function of long-term contracts in the operation of private dispute resolution mechanisms (CAS, BAT, FIFA DRC);
  • The transactional nature of long-term contracts in sport;
  • The relational nature of long-term contracts in sport;
  • The conflict between private autonomy and long-term contracts in sport;
  • The intersection between private and public in the operation of long-term contracts in sport;
  • Specific contractual arrangements, including:
    • Contracts of association and SGBs
    • Long-term (labour) contracts with athletes and coaches;
    • Contracts related to the organization of mega-sporting events, including host city contracts;
    • TV and media long-term contracts;
    • Sponsorship agreements;
    • and more.

Abstracts must be sent to Yuliya Chernykh (yuliya.chernykh@inn.no) by 15 June. 

New Training - Summer Programme on International sport and human rights - Online - 21-28 May

Since 2022, the T.M.C. Asser Instituut, in collaboration with the Centre for Sport and Human Rights, is organising the first yearly summer course on the intersection of sport and human rights. This 4th edition brings together scholars specialised in the intersection between sport and human rights with professionals working in international sport to ensure respect for human rights. We will explore contemporary human rights challenges in sports, such as the protections of human rights at mega-sporting events, access to remedy in human rights cases within the world of sport, the intersection between human rights and gender rights in international sporting competitions, and many more. 


The programme is designed to provide both deep background knowledge and actionnable insights, which will be relevant to a range of participants committed to defending human rights in international sport, including students, junior researchers, representatives of CSOs, sporting organisations, and athletes. It is structured around half days taking place online meant to accommodate as many participants as possible throughout the world. 


Check out the latest draft programme below and register HERE


Call for Papers - 20 Years of the World Anti-Doping Code in Action - ISLJ Conference 2025 - 6 & 7 November 2025


 


Call for papers

20 years of the World Anti-Doping Code in Action

International Sports Law Journal Conference 2025

Asser Institute, The Hague

6 and 7 November 2025

 

The Editors of the International Sports Law Journal (ISLJ), the Asser Institute and the Research Chair on Responsible Sport of the University of Sherbrooke invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 6 and 7 November 2025 at the Asser Institute in The Hague. The ISLJ, published by Springer and T.M.C. Asser Press, is the leading academic publication in the field of international sports law and governance. The conference is a unique occasion to discuss the main legal issues affecting international sports with academics and practitioners from all around the world. 

 

The 2025 ISLJ Conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004, while also discussing its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025 and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October. The aim of the conference will be to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC.  This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislations) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

 

Reviewing 20 years of implementation of the WADC warrants a special edition of the ISLJ Conference and of the journal, which invites scholars of all disciplines to reflect on the many questions and issues linked with it. We welcome proposals touching on the following subjects (and more): 

  • The governance of the world anti-doping regime
    • The public-private nature of this governance
    • The transparency of this governance
    • The legitimacy of this governance
    • The participatory nature of this governance
    • The role of scientific experts in this governance
  •  The normative content of the WADC and the international standards
    • The strict liability principle 
    • The privacy rights of athletes under the WADC
    • The sanctioning policy under the WADC
    • The role of the international standards in implementing the WADC
    • The compatibility of the WADC with human rights
  • The glocal implementation of the WADC
    • The role of local institutions (NADOs/Labs/NOCs) in the implementation of the WADC
    • The tension between global (WADA) and local (NADOs/Labs/NOCs) in the implementation of the WADC
    • The role of the IFs in the implementation of the WADC
    • The role of the ITA in the implementation of the WADC
    • The role of judicial bodies (national courts, disciplinary committees of IFs, CAS) and their jurisprudence in the implementation of the WADC 
  • The effectiveness of the world anti-doping regime
    • The evaluation and evolution of the effectiveness of the world anti-doping regime in preventing doping
    • The role of the media in unveiling the ineffectiveness of the world anti-doping regime
    • The role of states in hindering the effectiveness of the world anti-doping regime
    • The world anti-doping regime as a regime with a variable geometry of effectiveness
  •  The future of the world anti-doping regime: Revolution, reform or more of the same?
    • Do we need a world anti-doping regime? 
    • If we do, should it be reformed? How? 


Abstracts of 300 words and CVs should be sent no later than 1 June 2025 to a.duval@asser.nl. Selected speakers will be informed by 30 June 2025. The selected participants will be expected to submit a draft paper by 15 October 2025. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. The Asser Institute will provide a limited amount of travel and accommodation grants (max. 350€) to early career researchers (doctoral and post-doctoral) in need of financial support. If you wish to be considered for a grant, please indicate it in your submission.  


Zoom-In Webinar - The Aftermath of the Diarra Judgement: Towards a New FIFA Transfer System? - 20 November - 16:00-18:00 CET

On 4 October, the Court of Justice of the European Union shook the world of football with its Diarra ruling. The decision questions the compatibility of a key provision of the FIFA Regulations on the Status and Transfer of Players (RSTP) with European Union internal market law. The RSTP, and in particular its article 17, are the bedrock of football’s transfer ‘market’ and regulate the conditions for the transnational movement of players between clubs. In 2023, based on FIFA’s numbers, 21 801 players were transferred internationally (of which 3279 with a fee) for transfer fees amounting to USD 9.63 bn. In short, this is a market that affects a considerable number of players and is linked with the movement of large sums of money between clubs and other actors (such as intermediaries).

Register HERE

Join us on 20 November from 16:00 to 18:00 CET to take stock of the ruling's impact and discuss the steps ahead in a free Zoom-In webinar in which there will be time for a Q&A session with the speakers. The ruling has already been much commented on (see hereherehere, and here), and this zoom-in webinar will be an opportunity for participants to engage with two experts on the economic and legal intricacies of the regulation of labour relations in football. We will mostly focus on the aftermath of the judgment and the question, 'what comes next?'

Moderator: Marjolaine Viret (Université de Lausanne)

Speakers: 


Register HERE

Free Webinar - The impact of the Diarra case on the football transfer system - 18 October 2024 - 15:00 CET

The Court of Justice of the European Union has recently handed down its judgement in the Lassana Diarra case (C-650/22 FIFA v. BZ).

Given the importance of this case to the sports industry, LawInSport, the Asser Instituut and the Association for the Study of Sport and the EU (Sport & EU) are hosting a joint webinar to bring together experts to unpack and provide clarity on the complex legal, regulatory & commercial issues stemming from this case. This free webinar will be hosted from 14:00 UK time (15:00 CET) on 18 October 2024.


Register HERE 


Speakers

Our expert speakers come from academia, law and sport. Our confirmed speakers are:


Register HERE 

Conference - ISLJ Annual Conference 2024 - 24-25 October - Asser Institute - The Hague

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

Register HERE

Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

Download the full programme 

Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

Register HERE

Speakers 


Register HERE


Asser International Sports Law Blog | Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

 

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 herehere 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 aliaCAS 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. FRFCAS 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 CodeIn 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.

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