It is possible that sports jurisdiction may be facing some challenges. It appears that the ECJ may have caused some concern at the CAS.
If I may, I would like to offer some thoughts on the important issue of the need for greater oversight in world sport.
By Giorgio Cartuso – Journalist ROMA
It is important to note that Lausanne is not Luxembourg. The Court of Arbitration for Sport (CAS) does not have the authority of a supranational world court, despite its occasional actions that might be perceived as such. The sporting world is awaiting the decision of the European Court of Justice (ECJ) with interest, as it could set a precedent today that calls into question the CAS’s global claim to power. While a verdict has not yet been delivered, the hearing and closing arguments suggest potential future developments for the CAS system.
This is not a marginal issue. It is about the bigger picture: Could I also ask whether the CAS might be able to stand above European Union law?
The CAS, established in 1984 and based in neutral Switzerland, has developed over the years into what appears to be an unassailable arbitration body for world sport. It appears that CAS decisions, related to matters such as doping, transfer bans and expulsions, are generally regarded as definitive. However, it appears that its foundations are gradually eroding. It is important to note that this is due to its dominant position, which, regrettably, systematically denies access to ordinary courts. It is a justice system for sport that operates in parallel with the main system, and is controlled and financed by the very associations whose actions it is supposed to judge.
The case of RFC Seraing v FIFA offers an illustrative example of this issue: a Belgian football club is challenging a CAS ruling that it feels denied it an equal opportunity in terms of the proceedings. It could be argued that this situation reflects the experiences of many athletes, clubs and associations that feel compelled to submit to the dictates of internal sports „legal channels“. I wonder if this is something that people would be willing to do voluntarily? I’m afraid that’s not possible.
The Advocate General of the ECJ has helpfully clarified the matter in her opinion: Voluntary arbitration is only in place when the parties involved agree to it, rather than when they are compelled by sports statutes with no other option. It is interesting to note the difference to commercial arbitration, where, if I’m not mistaken, the parties choose their judge. In the realm of sport, the individual entrusted with the responsibility of officiating is chosen by all parties involved, including the athlete, the club, and the opponent.
It is important to note that the legitimacy of the CAS has thus far been primarily upheld by the Swiss Federal Court, and only in relation to procedural errors. From a European perspective, this may not fully align with expectations. While Europe is rightly committed to upholding the highest standards of the rule of law, one question that might be worthy of reflection is whether a shadow court should remain untouched in the billion-pound market of professional sport.
Perhaps now is the right time to gently suggest that the „lex sportiva“ – this self-referential parallel universe of sports law hubris – could perhaps be placed in its place. It is important to consider the unique challenges faced by athletes with limited resources, particularly those in para or amateur sports, who may need the full protection of national courts. It is important to recognise that individuals should never be compelled to relinquish their principles in situations as personal as changing room confidences.
The notion that the CAS should be regarded as a form of „papal authority“ in the sporting realm may be considered somewhat presumptuous and potentially hazardous. It is important to consider the rule of law in a way that extends beyond national borders. It is also important to consider the implications of this process, which may extend beyond the scope of the arbitration court, which is supported financially by FIFA.
If the ECJ follows its previous line, this could be seen as a way of ensuring the rules of sport are adhered to. It is anticipated that this will be a return to the constitutional order. I’m sure sport will be able to cope with this. The athletes will be very appreciative.
