SPORTS ARBITRATION AND EU LAW: THE RFC SERAING JUDGMENT AWAITED
The recent Opinion (Opinion) of Advocate General Ćapeta in Case C-600/23, RFC Seraing v FIFA, reopens complex questions about the interface between international sports arbitration and European legal principles, particularly the right to effective judicial protection under Article 47 of the Charter of Fundamental Rights of the EU (Charter).
Whilst the final judgment of the Court of Justice of the European Union (CJEU) is still pending, the Opinion invites us to reflect on the legitimacy, structure, and accessibility of the current CAS/FIFA dispute resolution system. Its implications may reach far beyond Europe, potentially unsettling the global equilibrium of sports arbitration and raising questions about the long-term coherence of transnational sports justice, particularly as successfully administered, since 1984, by the Court of Arbitration for Sport (CAS).
RFC Seraing, a Belgian football club, was sanctioned by FIFA in 2015 for breaching its prohibition on third-party ownership (TPO) of players‘ economic rights. In 2016, the FIFA Appeal Committee dismissed the Royal Football Club Seraing appeal against that decision. The Club then appealed the decision to the Court of Arbitration for Sport (CAS), arguing that the FIFA regulations violated EU competition law and free movement principles. The CAS rejected the appeal in 2017.
In parallel to these arbitration proceedings, Doyen Sports initiated litigation before the Brussels Commercial Court in April 2015, later joined by RFC Seraing in July 2015. They alleged that the FIFA prohibition of third-party ownership (TPO) violated EU law, including the freedom of capital, the freedom to provide services, the free movement of workers, and EU competition law. After the CAS award of March 2017 and its confirmation by the Swiss Federal Supreme Court in February 2018, the Belgian Courts, applying domestic rules on res judicata, declined to review the merits of the CAS award, as it had already been confirmed by the Swiss Federal Supreme Court. The case reached the Belgian Court of Cassation.
In the context of the proceedings brought by RFC Seraing, the Belgian Cour de Cassation decided to stay the case and referred two preliminary questions to the CJEU of the European Union. The core legal issue raised concerns the compatibility of national rules on res judicata and evidentiary value with the right to effective judicial protection under EU law.
Specifically, the first question asks whether Article 19(1) TFEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the EU, precludes the application of national provisions that attach res judicata effect to an arbitral award validated by a Court in a third country (in this case, Switzerland), which lacks the power to refer questions to the CJEU. The second question concerns whether the same EU provisions preclude the application of a national rule granting rebuttable probative value vis-à-vis third parties, subject to evidence to the contrary which it is for them to adduce, to an arbitral award rendered in a non-EU jurisdiction and thus not subject to preliminary reference procedures under Article 267 TFEU.
In her Opinion, Advocate General Ćapeta proposes a differentiated legal approach to mandatory sports arbitration, such as that imposed by FIFA through its statutes requiring disputes to be submitted to CAS.
In response to the first question, she considers that national laws attaching res judicata effect to arbitral awards confirmed by non-EU courts (such as the Swiss Federal Supreme Court) are incompatible with Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter, insofar as such awards escape any potential review by courts empowered to make a preliminary reference to the CJEU. She, therefore, advocates for an interpretation requiring full access to judicial review of CAS awards in the EU, extending beyond the traditional limits of review in commercial arbitration and encompassing all relevant EU law provisions.
As for the second question, the Advocate General takes a more moderate stance: she concludes that a national rule granting rebuttable probative value to such an arbitral award vis-à-vis third parties does not, in itself, violate the principle of effective judicial protection, provided that national courts retain the ability to assess the compatibility of the award with EU law and to submit a reference to the CJEU, if necessary.
Building on this reasoning, the Advocate General calls for a specific approach to mandatory arbitration in sport. She distinguishes it clearly from commercial arbitration on two main grounds: the lack of freely given consent by athletes and clubs, and the self-executing nature of CAS awards under the FIFA internal enforcement system. In this context, the absence of judicial control by EU courts raises systemic concerns, particularly when awards deal with the compatibility of sports regulations with EU law.
Her Opinion does not challenge the usefulness of sports arbitration per se. It recognises that the CAS has played a central role in resolving international sporting disputes and delivering decisions that are generally perceived as fair and efficient. However, she insists that EU law cannot be set aside where it applies, and that effective judicial protection must remain available when the rights of EU-based individuals are at stake.
The CAS, in a public statement issued on 28 March 2025 (see the Editorial of the CAS Bulletin 2025/1 published on the CAS website), acknowledged the significance of the Opinion whilst emphasising the importance of preserving an international dispute resolution system that is cost-effective, swift, and globally accepted. The CAS statement also raised concerns about potential fragmentation and imbalance between European and non-European stakeholders if access to the CAS becomes subject to diverging standards across different jurisdictions.
At the heart of the debate is the difficult challenge of reconciling the autonomy of global sports governance with the legal guarantees provided by the EU internal order. Whilst the Advocate General’s call for reform is grounded on the principles of EU law, it opens the door to broader reflections on the future of international sports arbitration, its legitimacy, and its capacity to adapt without losing coherence.
The RFC Seraing case exposes a structural friction between the logic of global sports governance and the constitutional guarantees of the European Union. Advocate General Ćapeta’s Opinion introduces a novel and carefully reasoned perspective by suggesting the creation of a dedicated legal framework for mandatory sports arbitration, one that would strengthen judicial oversight within the EU legal system and reaffirm the primacy of EU judicial control where fundamental rights are at stake.
Whilst this approach is grounded on the legitimate aim of safeguarding fundamental rights and ensuring effective judicial protection under EU law, it could also weaken a long-standing international framework that has traditionally favoured procedural efficiency and legal certainty.
This perspective invites a broader reflection on the evolving interaction between the European Union legal order and the global architecture of sports arbitration. As the EU strengthens its judicial guarantees, questions arise as to how far this influence should extend beyond its borders, particularly when it concerns an arbitral institution seated in a third country yet widely recognised and relied upon by sporting stakeholders worldwide.
Increased judicial scrutiny of CAS awards within the EU could, over time, prompt a strategic distancing from the European legal space. Rather than reinforcing the system, such developments may risk contributing to its fragmentation and diminishing its international coherence.
Whilst the Advocate General’s Opinion brings important concerns to light, its broad and ambitious interpretation of effective judicial protection under EU law may ultimately prove counterproductive, particularly if it destabilises a system that, despite its imperfections, remains the cornerstone of international sports arbitration.
The forthcoming judgment of the CJEU will not only clarify the status of CAS awards within the EU legal order but will also shape the delicate balance between European judicial guarantees and the global legitimacy of international sports arbitration.
For further information, advice and legal representation in European Union sports legal issues, please e-mail Dr Estelle Ivanova, the Head of our French Desk, at ‘ivanova@valloni.ch’.