Advocate General opinion presents seismic challenge to the existing order of sports arbitration

A landmark advocate general opinion proposes a potentially seismic shift in sports arbitration by opening door to EU court review of CAS awards where rights under EU law are invoked.

The framework of sports arbitration will face a significant challenge if a recent Advocate General opinion is followed by the Court of Justice of the EU. Most international sports federations require any disputes to be resolved before the Court of Arbitration for Sport (CAS).

However, the approach taken by the Advocate General creates the potential that more sports disputes will be brought before national courts across the EU, either at first instance or as a challenge to a CAS award, which will inevitably create inconsistencies in how disputes are resolved due to differences in applicable laws, languages and time frames. 

FC Seraing’s legal challenge to FIFA advances to the CJEU 

FIFA amended its Regulations on the Status and Transfer of Players (STP Regulations) in 2015 to prohibit third party ownership (TPO) of players. TPO is ownership by commercial entities other than the player's existing club or the club they are proposing to transfer to. FC Seraing entered into agreements with Doyen Sports (Doyen), a third party, where it was agreed Doyen would own a percentage of the economic rights of named players. FIFA deemed that these agreements were in breach of FIFA's STP Regulations and imposed a fine and a ban from registering players. FC Seraing unsuccessfully appealed this decision to the Court of Arbitration for Sport (CAS) and to the Swiss Federal Tribunal.

Doyen separately brought court proceedings in Brussels on the basis that the STP Regulations on TPO were unlawful under EU law. FC Seraing added as a party to the case.

The Brussels Commercial Court refused jurisdiction on the basis that the matter had already been decided by CAS and affirmed by the Swiss Federation Tribunal. That decision was appealed and a preliminary reference was ultimately made to the Court of Justice of the European Union (CJEU) and Advocate General issued an opinion in 2025.

Preliminary reference under Article 267 TFEU

The Belgian court asked the CJEU if determining that a CAS award was final (granting it res judicata effect) and not subject to review by courts authorised to refer matters to the CJEU, aligns with EU law. The key issue was whether EU law required a CAS award to be subject to effective judicial review in EU national courts where rights under EU law are invoked.

The Advocate General contends that the judicial safeguarding of rights established by the EU must be guaranteed by a court that meets the criteria of a "court or tribunal" as outlined in Article 267 TFEU. Neither the CAS nor the Swiss Federal Tribunal, which has the authority to review CAS decisions, qualify as such courts. Therefore, the evaluation by CAS of whether FIFA's rules align with EU rights does not fulfil the requirement for effective judicial protection under EU law.

The Advocate General further stated that the scope of review should not be limited to public policy (as had been suggested by the CJEU in a previous decision) but should include all relevant EU law provisions. The Advocate General differentiated between sports arbitration and commercial arbitration in outlining the rationale for the opinion.

Firstly, FIFA's rules make it mandatory for all parties involved in football to arbitrate under its disciplinary structures, with CAS having exclusive jurisdiction over all challenges. This limits the purpose of both parties having free will to enter into an arbitration. By contrast, parties to an arbitration have freely entered into an arbitration agreement whereby they agree to arbitrate any dispute that arises, i.e., they have a choice.  

Secondly, FIFA can enforce arbitration awards without the need to bring enforcement proceedings in court by sanctioning the players and clubs. A primary distinction with commercial arbitration lies in the enforcement process, where if one party fails to comply with an award, the other party must seek enforcement through national courts that recognise arbitration procedures, such as under the New York Convention in Ireland.

Implications for international federations, subject to CAS

The opinion of the Advocate General is not binding. However, the opinion is followed more often than not.

If the Advocate General's opinion is followed, it could significantly alter the way sports disputes are handled, potentially leading to more cases being taken to national courts across Europe. This could introduce inconsistencies in how disputes are resolved due to differences in applicable laws, languages, and timeframes. International sports federations may consider amending its rules to allow for arbitration in EU member state courts, such as Ireland, though CAS itself is not obligated to change its procedures to align with EU law.

UEFA has already revised its Authorisation Rules to make it possible for the moving party to elect Dublin as the seat of CAS arbitration for disputes regarding the authorisation of its international club competitions. However, the effect of the UEFA amendment appears to conflict with the CAS Code by allowing for a seat of arbitration other than the mandatory seat of arbitration prescribed in Lausanne. This has not arisen for consideration to date.

Further reading

For more on Dublin's election as the alternative seat for the Court of Arbitration for Sport, read our article by clicking here.

For more information on UEFA's selection of Ireland for this role, see our article in the Law in Sport publication here.

How Ogier can help

The Sports legal team in Dublin can advise on any queries you may have regarding arbitration in Ireland and related sports law advice. Please contact our team via their details below.

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This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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