Editor’s Note: Etienne Gard graduated from the University of Zurich and from King's College London. He currently manages a project in the field of digitalization with Bratschi Ltd., a major Swiss law firm where he did his traineeship with a focus in international commercial arbitration.

1. Prelude

On the 10^th of June, 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the “New York Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now reach 157 signatory countries, turning the New York Convention into the global recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the New York Convention is both the Best Thing since sliced bread and also whatever was the Best Thing before sliced bread replaced it as the Best Thing.”[2]

However, among the overall appraisal regarding the New York Convention, some criticisms have been expressed. For instance, some states use their public policy rather as a pretext not to enforce an award than an actual ground for refusal.[3]  A further issue is the recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application of the New York Convention take place in front of State authorities, for the most part in front of courts of law, according to national proceeding rules. This usually leads to the retaining of a local law firm, the translation of several documents, written submissions and one, if not several hearings. Hence, the efficiency of the New York Convention as a recognition and enforcement mechanism comes to the expense of both money and time of both parties of the arbitral procedure.

In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case.

2.  Facts of the Case

The dispute at hand involved a football club affiliated with the United Arab Emirates Football Association (“UAEFA”) and a player’s agent. The club at hand owed a commission to the agent following the completion of a player’s transfer. The agent ultimately won the case before the CAS and the latter awarded him monetary compensation against the football club.

Shortly thereafter, means of enforcement against the club were sought.

It is widely recognized that the awards rendered by the CAS do qualify as awards under the New York Convention and may thus be subject to the classic enforcement provided therein.[5]

Whilst this is to be welcomed because it offers alternatives to the prevailing party seeking recognition and enforcement of the arbitral award, the following will show that another route exists, which may prove just as effective whilst saving both time and money.

Indeed, though the United Arab Emirates did ratify the New York Convention, the general critics mentioned above also applied in the case at hand. This meant that going down the route of direct enforcement against the UAE-based football club would have had several drawbacks. First, the translation workload in order to comply with the local procedural rules was significant. Second, since the recognition procedure was due to take place in front of national courts, a local law firm would have had to be retained. Finally, there was no clear timeline as to when exactly the due compensation would effectively be paid.

3. The Indirect Enforcement

Luckily, the world of football organizations provides for an alternative path, which proved to be highly effective at hand. Indeed, as a result of the deep-rooted integration of CAS and of its decisions in effectively all organizational layers of national and international football, the New York Convention is not the only global enforcement mechanism available to a prevailing party in that field. Although it requires to take steps outside that Convention and, as a result, of the entire ‘state-supported’ enforcement system, the indirect enforcement described below nonetheless proves to be a viable alternative for parties involved in football-related arbitration.

3.1 The Statutory Basis of Indirect Enforcement

It all starts with art. 15 para. 1 let. f of the FIFA Statutes which stipulates that the statutes of the member associations shall ensure that, inter alia, all relevant stakeholders must agree to recognize the jurisdiction and authority of CAS.[6] Art. 23 para. 1 let. f provides for a similar obligation with regard to the confederations’ statutes.[7]

Pursuant to art. 61 para. 1 of the Statutes of the Asian Football Confederation (“AFC”), to which the UAEFA is a member, the AFC recognizes the CAS to resolve disputes between, inter alia, clubs and intermediaries.[8] Further, according to art. 62 para. 1 of said Statutes, the member associations, among which the UAEFA, shall agree to recognize CAS as an independent judicial authority and to ensure that their members and clubs comply with the decisions passed by CAS. Any violation of these provisions will trigger a sanction on the breaching party, according to art. 62 para. 3 of the AFC Statutes.

Finally, art. 19 para. 4 of the UAEFA Statutes provides that each club, upon application for affiliation, shall provide a declaration whereas it undertakes to accept and implement the decisions rendered by the CAS.[9]

In light of the above, the rules of football organizations put in place a terraced indirect enforcement mechanism regarding CAS awards, whereas each club undertakes to comply with such awards vis-à-vis its home association, each such association being in turn similarly obligated vis-à-vis FIFA and its own Confederation. The latter finally has the duty to ensure that its affiliated associations recognize the authority of CAS, thereby closing the loop.

The broad sanction mechanism at every stage leaves considerable discretionary powers to the competent bodies in order to appropriately pressure the breaching stakeholder, on whichever link in the chain the latter may be, into complying with CAS decisions.

3.2 The Indirect Enforcement Procedure

The FIFA Statutes do not provide for any particular body directly tasked with the enforcement of CAS awards against FIFA’s affiliates and their stakeholders. Nor is there any particular procedure enshrined in the FIFA Statues as to how the indirect enforcement of CAS awards shall take place. In particular, art. 64 FIFA Disciplinary Code only applies to CAS decisions in appeal arbitration proceedings regarding the decisions of FIFA and not to CAS decisions rendered in an ordinary arbitration procedure.[10]

However, art. 45 of the FIFA Statutes does provide that the Member Associations Committee shall deal with relations between FIFA and its member associations as well as the member associations’ compliance with the FIFA Statutes. The same is true at the level of the AFC, whereas art. 54 of its Statutes provide that the Associations Committee shall be responsible for relations between the AFC and its Member Associations as well as Member Association’s compliance with FIFA and AFC Statutes and Regulations.

In other words, both at FIFA and AFC level, a standing committee is responsible for ensuring that the Members comply with the applicable statutes and thus, inter alia, with awards rendered by CAS.

Based on the above, we concluded that in order for the competent FIFA and AFC standing committees to examine the case of a club not complying with a CAS award, they needed to be first convinced that (i) a final and binding CAS award had been rendered against a club affiliated with a member association and that (ii) such club refused to comply with said award. Second, the above-mentioned committees would need to be shown that the national football association has been notified of such occurrence and been asked to take appropriate actions against the club according to its own statutes.

From this point in time onwards, the FIFA and AFC standing committees will have been notified that a member’s association has been asked to remedy a matter of non-compliance of an affiliated club with a CAS award and thus such association is now under a statutory obligation to ensure compliance from the club, as described above, or else may itself be found to have breached the FIFA and/or AFC Statutes and sanctioned accordingly.

4. Epilogue and Conclusion

Shifting the focus back to the case that prompted the idea of this blog, once the route leading to indirect enforcement was mapped, we proceeded with gathering the evidence needed, i.e. that the CAS award was final and binding upon the football club.

Section 193 of the Swiss Private International Law Act – which applies to international CAS proceedings – enables the parties to request an enforceability certificate from the competent state court regarding an award rendered by an international arbitral tribunal with its seat in Switzerland. This document certifies that the award in question is final and that no appeal can be filed against it. In the case of the CAS, the state court competent for the issuance of an enforceability certificate is the Tribunal cantonal, in Lausanne.

Once this certificate was obtained, we filed it together with a copy of the award to the competent national association, the UAEFA, urging the latter in writing to request from the club that it complied with the CAS award, or else the club would be sanctioned. Both the competent standing committees of the FIFA and of the AFC received a copy of that letter.

From this moment onwards, the machinery of the indirect enforcement mechanism was switched on and we knew that leverage existed at every level, up until FIFA, to ensure that each stakeholder, be it the UAEFA or the AFC, pressures its affiliated bodies, and, ultimately, the club, into complying with the CAS award.

In the case at hand, this method proved to be successful. Indeed, as a result of the aforementioned steps, the AFC promptly contacted the UAEFA, requesting this matter to be solved and the football agent received the awarded compensation from the club within a few weeks after the UAEFA, the AFC and the FIFA were notified as described above.

This case shows how operating outside the New York Convention can prove both cost- and time-effective. When used properly, the indirect sanction mechanism put in place by football organizations proves to be a proper alternative to classic enforcement proceedings and shall in any event be considered as a viable option under similar circumstances.

[1] Flannery/Merkin, Arbitration Act 1996, 5th Ed., Oxon, 2014, p. 356.

[2] V.V. Veeder, Is There a Need to Revise the New York Convention - Key note speech, in: ‘The Review of International Arbitration Awards – IAI Forum’, International Arbitration Institute, 2008, p. 183 et sqq., p. 186.

[3] V.V. Veeder, p. 191.

[4] Gaillard, ‘The Urgency of Not Revising the New York Convention’, in: The New York Convention at 50, 2008, p. 689 et seqq., p. 690.

[5] Nafziger/Ross, Handbook on International Sports Law, Edward Elgar 2011, p. 40; Rubno-Sammartano, International Arbitration Law and Practice, 3^rd Ed., JurisNet, 2014, p.1709; Nolon, Arbitration and the Olympic Athlete, in: McCann, ‘The Oxford Handbook of American Sports Law’, OUP 2017, p. 444.

[6]Art. 15 para. 1 let. f of the FIFA statutes reads as follows: “Member associations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters: […] all relevant stakeholders must agree to recognise the jurisdiction and authority of CAS and give priority to arbitration as a means of dispute resolution […].

[7] Art. 23 para. 1 let. f of the FIFA statutes reads as follows: “The confederations’ statutes must comply with the principles of good

governance, and shall in particular contain, at a minimum, provisions relating to the following matters

[8] Art. 61 para 1 of the Asian Football Confederation Statutes reads as follows: “The AFC recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between the AFC and the other Confederations, Member Associations, Leagues, Clubs, Players, Officials, Intermediaries and licensed match agents.”

[9] Art 19 para 4 of the UAEFA Statutes reads as follows (tentative translation): “Each applicant should provide the following documents: […] A declaration that it will to accept and implement the resolutions and decisions issued by the Court of Arbitration for sport in Lausanne (CAS).”

[10] Art. 64  para 1 of the FIFA Disciplinary Code  reads as follows (emphasis added): “Anyone who fails 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 or an instance of FIFA or a subsequent CAS appeal decision (financial decision), or anyone who fails to comply with another decision (nonfinancial decision) passed by a body, a committee or an instance of FIFA, or by CAS (subsequent appeal decision): […].”

Editor's note: Robby Houben is a professor at the University of Antwerp, specializing in sports enterprise law and corporate law. He founded the University of Antwerp’s Football College, championing good governance in professional football. He is editor of the Research Handbook on the Law of Professional Football Clubs (Edward Elgar Publishing 2023). Siniša Petrović is a professor at the University of Zagreb, specializing in sports law and corporate law.

Mid-March, the YouTube channel The Overlap released an interview with Aleksander Čeferin, the current president of UEFA. Asked about the Super League’s court case against UEFA, Čeferin referred to it as ‘mainly symbolical’. This statement reveals a deep trust in the status quo. In this short note we assess if such trust is justified. On the basis of advocate general (AG) Szpunar’s recent opinion in a case on home grown player rules, we argue it is not. 

What is it about? On 9 March, AG Szpunar of the Court of Justice of the EU (‘CJEU’) delivered his opinion in the case of Royal Antwerp FC against the Royal Belgian Football Association (‘RBFA’) and the European Football Association UEFA. The case relates to the so-called ‘home grown players’ rule (‘HGP rule’). This rule requires clubs to include at least 8 locally trained players in the list of 25 players that make the A team. According to Szpunar, this likely amounts to an indirect nationality discrimination and, at least, to a restriction of the free movement rights of football players under Article 45 of the Treaty on the Functioning of the EU (‘TFEU’). Nevertheless, the AG considers the HGP rule valid as such, as, according to him, it serves the legitimate aims of stimulating the training of youth players and increasing the competitive balance between clubs. Only insofar as it allows that home grown players includes players trained by another club in the same league (under the UEFA HGP rule, 4 out of 8 home grown players), instead of by the club itself, the HGP rule is not suitable to achieve these aims. His recommendation to the court is, hence, to partially invalidate the HGP rule. He would likely find a (future) HGP rule requiring home grown players to be trained only at the club compatible with EU law. 

Is sport so special that it deserves special treatment? On the basis of Wouters and Meca-Medina it is widely accepted that restrictions of competition in sports can be justified if they proportionately pursue legitimate aims. Interestingly, in his assessment of the proportionality of the HGP rule, AG Szpunar seems to do Wouters away as a peculiar case. He finds ‘it difficult to deduce a general principle … according to which private entities bound by Article 45 TFEU would have a greater discretion than that of Member States in comparable situations’. Moreover, he argues, such greater discretion may be warranted in matters transcending classical economic policy, but the HGP rule has a strong economic component and is not such a matter (paras 76-78). As a result, Szpunar sees no reason ‘to afford UEFA and the RBFA a wider discretion than would be the norm for a Member State to justify a restriction of Article 45 TFEU’ (para 78). So, no specific exceptions for football that do not apply to other economic sectors! Wrong, because, at the same time, the AG allows to justify the HGP rule in view of legitimate aims, in this case youth development and competitive balance. Hence, while closing the back door for exceptional treatment of football in his assessment of proportionality, he opens the front door for such exceptional treatment as a matter of principle quite widely - without really underpinning why, nor providing evidence of why football is so special compared to let’s say universities or hospitals, who educate youngsters too, undoubtedly for the public good, and don’t enjoy such special treatment. 

But let’s assume sport is somehow special and deserves a special treatment. Does the HGP rule serve both the aim of youth development and increasing competitive balance? Probably not. It seems the aims are conflated here. Yes, the HGP rule serves the aim of encouraging the training of players (at professional football clubs that is), and arguably it makes sense to incentivize clubs to train players. But it is unlikely that this will contribute to more competitive balance between clubs. This has to do with the territorial model of football: ‘domestic’ competitions are organized along national borders. Clubs from larger countries logically have a larger talent pool to recruit young players from than clubs from smaller countries, and therefore they likely have a competitive advantage. Moreover, assuming the pool of talented young players is larger in bigger countries, it is likely that these youngsters will add sporting value to the A-team. That’s a win-win. In smaller countries, clubs will typically have a tougher job recruiting domestic top talent, simply because the pool is smaller. Adding to that is that the real top youngsters of smaller countries will probably sign their first professional player contract with a club of a top tier foreign competition, leaving only the ‘best of the rest’ for the local clubs. At the age of 16, the next Kevin De Bruyne will of course become a ‘club-trained’ local player somewhere, but not in a Belgian club. Cutting a long story short, from the perspective of fair competition, the HGP rule is not neutral and favors clubs that happen to reside in larger countries. 

Overboard with domestic borders then? That is what small Luxemburg club Swift Hespérange claims. Swift argues its free movement rights and free competition is infringed because it has to play football within the Luxembourg borders. As a result, it cannot grow and become competitive with clubs from surrounding leagues. Szpunar’s opinion provides food for thought for this case too, as he recognizes that the territorial model of football favors clubs in larger countries more than clubs in smaller countries (paras 68 and 70). His opinion therefore seems to accord with Swift’s intuition. 

How could a HGP rule become more neutral in a territorial model of football, with club football organized along domestic borders? Arguably, the rule could concentrate on the under 21 teams, and/or under 23 teams, where training actually takes place, allowing clubs to compose their A-teams with the best players, regardless of where they were trained. Talented club-trained young players will make their way to A-teams on the basis of merit. Clubs could be incentivized to field club-trained players in their A-team through increased solidarity payments from centralized earnings. Such an approach could serve both the aims of stimulating the training of players and increasing (or better: not deteriorating) the competitiveness of local clubs. 

Is this THE solution? We don’t know, and we don’t pretend to know. We raise it to illustrate a point: the importance of alternative systems to the HGP rule in the Antwerp case. AG Szpunar rightly asserts that the burden of proof to evidence that a rule is proportionate in view of legitimate aims, so that it can be upheld instead of invalidated, lies with the claimant of such exception, in the Antwerp case UEFA and the RBFA (para 61). Remarkably, the proportionality of the HGP rule is subsequently simply assumed. Moreover, alternatives brought forward by Antwerp, whereas the burden of proof lay with UEFA and the RBFA, were put aside as more restrictive, and considered not to be equally effective without much consideration (paras 79-81). Is it not more in line with logic that when the burden of proof falls upon a party, if it fails to discharge it then its claim is simply denied? More fundamentally, if rules are simply assumed to pursue legitimate objectives instead of evidenced to do so, is this not an open invitation for ‘sports washing’, the equivalent of green washing in sports? Of course, judges are not industry experts. As a result, we may not reasonably expect too much. Regulators must have leeway to make choices. But judges can and should perform oversight, assuring: i) rules are at least aiming for the target, ii) the regulator effectively considered alternatives, iii) there are good reasons for the regulator to prefer the chosen solution over another. If the questioned rule fails this test, it should be declared invalid – and the regulator should be sent back to the drawing board.[1]

So, AG Szpunar’s opinion is not perfect. Yet, it certainly puts the finger on the sore spot of football governance: double hatting and the inherent conflicts of interest that brings. In this respect, AG Szpunar’s opinion seems to provide counterweight to AG Rantos’ opinion in the European Super League (‘ESL’) case (see the subtill ‘in this respect’ in fn 39 of Szpunar’s opinion). In essence, AG Rantos argues that UEFA’s potential design errors are irrelevant, as the ESL, because of its (at the time) semi-closed set-up, should have been rejected anyway. He even asserts that open sport competitions are a constitutional principle of EU law, enshrined in Article 165 TFEU. This is a (too) far stretch, notably not repeated by AG Szpunar. Moreover, Szpunar makes UEFA’s governance deficit so much more explicit than Rantos. Because UEFA is both the regulator and monopolist of European club football, Szpunar considers that conflicts of interest are ‘bound to arise’ (in the French official version: ‘inévitable’; in Dutch: ‘onvermijdelijk’ – so: inevitable). Moreover, confronted with such conflict, he believes UEFA and domestic football regulators will have a natural reflex to let their own commercial interests prevail over the public interest (para 58). 

AG’s Szpunar’s opinion is authoritative, and probably even more than usual. Szpunar is first advocate general, and primus inter pares. His opinion will weigh in on the other football cases pending before the CJEU too, especially the ESL case and the aforementioned Swift case. As such, it could serve as a ‘canary in the coalmine’ for what is still to come later this year. Anyway, if the CJEU judges in the ESL case follow Szpunar’s assessment of UEFA’s double hatting, those who were celebrating the status quo after the Rantos opinion might be in for a scare soon.  

2023 is a year of truth for the organization of professional football. Dissatisfaction with the status quo has led to a record number of football related cases before the CJEU. These cases are heard separately, but at the same time inevitably interconnected, because they run in parallel on similar subject matters. Szpunar’s opinion makes at least clear that all cards are still on the table and the status quo might not prevail. 

Courts can only do what they are allowed to: apply the law in a given case. They can’t solve football’s governance deficit. Only politicians can ‘save football from itself’ by regulating it and by tackling policy failures exposed by professional football’s commercial explosion fueled primarily by clubs and players. Stakeholders such as clubs and players deserve a seat at the decision-making table in a governance model for pro football 2.0. For example, it is not acceptable any more for football regulators with no skin in the game to continue to congest match calendars (40 or so more matches in the 2026 World Cup !) without consulting clubs and players. Furthermore, the cleanest way to resolve conflicts of interest once and for all would be to separate UEFA’s functions - at least to ensure that adequate procedures are in place to avoid, mitigate and make transparent conflict of interests (in that order), and allowing access to public courts for judicial scrutiny. To be meaningful, such action should be taken at EU level, so as to create a level playing field for clubs across Europe and – because of the ‘Brussels’ effect – beyond.  

We are not naïve. There is no political appetite for reforming football yet. That was made clear during the ESL hearing early July 2022, where more than 20 Member States intervened in support of UEFA and the status quo. But, one, two or three critical decisions of the CJEU might inspire politicians to take action. That way, this wave of court cases may trigger a much more profound reform of the governance of the beautiful game.    

[1] In that sense AG Szpunar seems to go too far when in his answer to the court he suggests to invalidate the current HGP rule and already advises how the new rule should look – the latter is more a matter for the regulator.