Introduction
On 16 January 2025, AG Ćapeta delivered the Opinion in Seraing v. FIFA et al., holding that EU lawprecludes “the application of […] the principle of res judicata, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice for a preliminary ruling” (para. 136.1). This Opinion has been construed either as a deliberate attack on arbitration or genuine willingness to improve the transparency of the Court of Arbitration for Sport (“CAS”). After summarizing the Opinion (II), this post suggests that the AG’s approach can alternatively be viewed as an “overreactive” attempt by the CJEU ecosystem to protect the autonomy of EU law and preserve EU integration (III). This attempt, however, entails systemic risks for sports arbitration, which may not be worth taking, considering the availability of public policy as a safeguard for fundamental EU law principles and objectives (IV).
A “Red Card” to the CAS/ISF Arbitration System: the AG’s Concerns about “Mandatory” Arbitration and “Self-Sufficient” Enforcement
Seraing concerned a preliminary reference by the Belgian Court of Cassation, inquiring the CJEU whether “an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling”, can have res judicata effects. The underlying dispute pertained to a CAS award involving FIFA.
The Opinion begins with the principle of effective judicial protection which, for the AG, requires States to “ensure that an individual who claims that his or her EU-based right is infringed has access to an independent court previously established by law, and with the power to make a reference to the Court under Article 267 TFEU”; the CAS, naturally, has no such power (paras. 42-44).
The AG then states that, while the CJEU’s Eco Swiss judgment discussed the review of “regular” arbitral awards by national courts on EU public policy grounds, Seraing was different: it involved “mandatory” arbitration rules and a system of “self-sufficiency” as regards enforcement, namely, FIFA’s internal execution system for CAS awards, which involves sport sanctions for non-compliance (paras. 68-76).
Specifically, citing the ECtHR’s Mutu and Pechstein ruling, the AG reasons that CAS arbitration involving international sports federations (“CAS/ISF arbitration”) does not reflect a party’s true choice to exclude access to an EU court and preclude the application of EU rules (para. 75). By contrast, “it may be considered [in commercial arbitration] that the parties voluntarily excluded the application of some rules of a legal system” (para. 111). CAS/ISF arbitration is self-executing because of its internal system of sport sanctions, leaving little room for scrutiny by EU courts (paras. 76-78).
The AG, finally, questions the applicability of the New York Convention (“NYC”) to CAS/ISF arbitration, given the absence of genuine consent. The AG also suggests that, even if the NYC applies, its provisions should not preclude national courts from reviewing CAS awards for compliance with EU law, since the principle of effective judicial protection constitutes public policy within the sense of Article V(2)(b) (paras. 120-122). The AG concludes that EU national courts must be able to review CAS awards for compliance with any EU rule, not just public policy (para. 114). Importantly, while it has been suggested that this conclusion refers to “vertical” CAS/ISF disputes, the AG broadly references “CAS arbitration under the FIFA Statutes” in various parts of the Opinion, thereby targeting both vertical and horizontal CAS/ISF disputes.
The “Game” of the CJEU ecosystem: could Disintegration, through Reduced Autonomy, be the True Adversary?
The above-presented analysis largely relies on the ECtHR’s judgment in Mutu and Pechstein and the CJEU’s judgment in ISU. But as noted here, in Mutu and Pechstein, the ECtHR merely highlighted the importance of public hearings and the principles of independence and impartiality in CAS arbitration. Moreover, in ISU, the CJEU required that access to EU courts remain available for violations of EU competition law, not all of EU law.
Further, there is no consistent doctrine supporting the notion that “mandatory” arbitration (whether in sports statutes, GTCs or otherwise) is not “arbitration” under the NYC. In turn, the finding that all of EU law, under the guise of effective judicial protection, constitutes public policy, leaves minimal scope for global automatic enforcement.
Finally, while CAS/ISF awards will, in most cases, not require the assistance of the NYC for the purposes of enforcement, in some cases, such as those involving defunct clubs, sport sanctions might not suffice. “Self-sufficiency”, therefore, does not fully support the distinction drawn by the AG between CAS/ISF and commercial arbitration.
If the AG’s approach in Seraing appears unusually bold, it is likely to be motivated by profound concerns about the CAS/ISF arbitration system. Although underdiscussed, one of these concerns seems to hold significant explanatory power not only about Seraing, but more generally about the course CJEU case law has taken vis-à-vis sports law in recent years: the threatened autonomy of the EU legal order.
Specifically, it is well established that the CJEU has a mandate to preserve the autonomy of the EU legal order (as affirmed in Achmea). According to the CJEU’s President, Koen Lenaerts, autonomy is in turn “a sword that contributes to defining what European integration is all about”. But EU integration and EU law autonomy have faced significant challenges in the past decade.
Indicatively, during the EU sovereign debt crisis, the CJEU was requested to validate EU macroeconomic measures (see here and here) against scepticism in “frugal” States. Next, there was Brexit, followed by the 2015-2016 migration crisis. Soon thereafter, concerns were raised about the EU’s perceived inability to enforce the rule of law against individual States, CETA was limited to the status of provisional application, and TTIP negotiations failed.
More recently, during the COVID pandemic, doubts surrounded the EU’s procurement framework and the use of legal gymnastics to issue common EU debt. The EU’s reluctance to formalize a common defence policy was questioned, the New Migration Pact was criticized, freedom of movement came under pressure, and enlargement into the Western Balkans stalled.
With the principles of autonomy and integration under strain due to geopolitical dynamics, arbitration might appear increasingly problematic from the perspective of the EU judicial system: arbitral tribunals are delocalized and thus not expected to prioritize EU law autonomy and integration; yet still, they interpret EU law outside the CJEU’s control, thereby indirectly affecting these principles.
The CJEU had so far associated this perceived loss of control over the EU legal order primarily with investor-state arbitration. But “quasi-regulatory” sports bodies, such as FIFA and UEFA, have been highly active in determining financial, competition, and labour-related matters in the EU market. Their measures affect the behaviour of EU consumers and businesses, interact with EU laws and even influence regulatory developments in EU States. Judicial control over such measures still formally falls outside the CJEU ecosystem, resting with CAS panels and the Swiss Federal Tribunal (“SFT”). The above-discussed concerns can help explain bold judgments such as Diarra, ESL, ISU, and Antwerp, where the CJEU appears increasingly sceptical of transnational “quasi-regulation” by sports bodies in the EU market; crucially, they can also explain the AG’s Opinion in Seraing, which opens with the explicit statement: “[a]t stake in this case is the question of control” (para. 2). The AG could not have been clearer.
The “VAR”: might the CJEU Disallow the Opinion’s Own Goal, yet still Preserve Autonomy and Integration?
The CJEU is expected to render its judgment soon. Statistically speaking, it is likely to confirm the AG’s (otherwise non-binding) Opinion. This would require federations to foresee in their statutes access to EU courts or EU-seated tribunals (such as an “Irish CAS”), or remedy the “mandatory” nature of the current system by introducing directly negotiated arbitration agreements.
The first scenario could reinforce claims of Eurocentrism, and gradually de-harmonize sports law through the application of differing procedural rules to EU and non-EU arbitrations. This scenario also risks a misalignment between substantive and procedural law: to recall, Swiss law, in the system’s current structure, will often govern both procedure and merits in a typical federation-related dispute. A shift toward non-Swiss procedural law could also limit the relevance of existing CAS jurisprudence on various fundamental procedural matters, impacting predictability.
The second scenario can create transactional uncertainties: since the “mandatory” nature of CAS/ISF arbitration is not defined in the Opinion (although the CJEU will likely elucidate this point), it is unclear how federations should formulate their arbitration offers to athletes and clubs, and how much negotiating freedom they should afford in each case, so that arbitration is not deemed “mandatory”. Similarly, it is unclear how large sports events can practically accommodate individual negotiations of arbitration clauses.
Of course, federations can simply neglect the judgment, continuing to rely exclusively on traditional, Swiss-seated CAS/ISF arbitration. Under this scenario, parties on the losing end of CAS/ISF arbitrations might seize EU courts, claiming that the dispute involved EU law questions with no res judicata effects. Respondents might also seek “anti-CAS” injunctions from EU courts. Violations of the NYC and the ECHR, increased national court caseloads, damage to the EU’s reputation as an arbitration-friendly jurisdiction, inconsistent decisions, and high legal costs associated with multi-forum litigation might ensue.
As another option, the CJEU could frame the issue as one of arbitrability, allowing CAS tribunals to refer EU law questions to EU courts, while deciding other aspects of a given case. However, the SFT might vacate such awards, considering the fact that it recently suggested that it is not bound by foreign non-arbitrability determinations.
A third option suggested in scholarship is a Solange-style judgment, whereby the CJEU could state that CAS awards lack res judicata effects “as long as” the “CAS fails to ensure that international [sports federations] respect European public policy”. Yet if public policy encompasses effective judicial protection, which is allegedly undermined whenever EU law issues arise in “mandatory” CAS arbitration, the Solange-style approach would lose its practical significance.
The above-discussed risks could, of course, be overstated. Federations might, in the end, seamlessly incorporate EU seats into their arbitration agreements or find other ways of offering forum flexibility. Lawyers might exercise restraint in EU law-based challenges, and tribunals might treat Swiss case law as part of lex sportiva. Sports law, overall, might require minor adjustments and undergo but a brief period of uncertainty after Seraing.
However, even a brief period of adjustment or uncertainty should preferably be avoided. To better serve the principles of autonomy and integration, the CJEU could instead clarify that (i) res judicata does not apply to awards that violate EU public policy, and (ii) effective judicial protection does not require the availability of EU courts for matters beyond the scope of EU public policy. This clarification would suffice, as the main threats to these principles largely coincide with areas already addressed by EU public policy, such as competition, labour, anti-corruption, health, and non-discrimination. As demonstrated in ESL, Diarra, and Antwerp, the CJEU remains fully capable of reviewing such issues; it need not risk losing the “championship” to win a “match”.
Panagiotis A. Kyriakou is an independent legal scholar and associate at Archipel, with a PhD in international law from the Geneva Graduate Institute.