In the summer of 2013, a Belgian amateur football club, the Royal Football Club (RFC) Seraing, underwent a change of management with the goal of "being able to strengthen its position in sporting and financial terms" in order to return the club "to the Belgian or even the international elite". Twelve years later, the club is competing in Belgium's second division and is also at the center of a potentially ground-breaking decision involving several football governing bodies, including FIFA, UEFA, and the Royal Belgian Football Association (URBSFA).

At the heart of this conflict ― on which Advocate General Ćapeta recently delivered her Opinion¹ ― is FIFA’s prohibition of third-party ownership (TPO) of players’ economic rights in its 2015 "Regulations on the Status and Transfer of Players" (STP Regulations). TPO refers to agreements in which entities other than the player and their clubs own a stake in the player’s economic value, particularly in transfer fees. This practice, which was widespread in South American during the 1990s, has also been developed in European football since the early 2000s, primarily as a way to provide financial supportto smaller clubs,enabling them to compete with larger ones.

While the concise nature of this commentary precludes a thorough exploration of the remarkably intricate facts, it is nonetheless possible to outline the keypoints: In January 2015, RFC Seraing entered into a TPO agreement with Doyen Sports, a Maltese company specialized in providing financial support to football clubs.² The agreement granted Doyen Sports partial ownership of the economic rights of specific players. A second similar agreement followed in July 2015. FIFA determined that these agreements violated the STP Regulations, which had phased out TPO agreements through transitional rules. Consequently, FIFA sanctioned RFC Seraing with a two-year ban on registering new players and a fine of CHF 150,000.

RFC Seraing appealed FIFA’s decision internally and subsequently before the Court of Arbitration for Sport (CAS). CAS upheld FIFA’s TPO prohibition deeming it consistent with Swiss Law, the European Convention on Human Rights, and EU Law, and reduced the registration ban to three transfer periods. In addition, RFC Seraing pursued legal action in Belgium, arguing that the TPO ban violated the foundations of EU Law. However, the Belgian courts ruled that the CAS award, confirmed by the Swiss Federal Supreme Court, carried the force of res judicata. This precluded further examination of the compatibility of FIFA’s rules with EU Law by Belgian courts, including the Court of Appeal in Brussels, which dismissed RFC Seraing’s claims in 2019. The court reasoned that FIFA’s mandatory arbitration system prevented national courts from independently assessing whether FIFA’s rules complied with EU Law.

The appeal brought by the RFC Seraing led the Belgian Supreme Court to refer to the Court of Justice of the European Union (CJEU) for a preliminary ruling, primarily because it raised doubts about the compatibility of FIFA’s mandatory arbitration system with the principle of effective judicial protection under EU Law. The Court questioned whether the recognition of the CAS award as having the force of res judicata was consistent with EU Law, particularly given that the CAS, as a private arbitration body, and the Swiss Federal Supreme Court, as the national court of a non-EU Member State, lack the competence to submit preliminary questions to the CJEU under Article 267 TFEU (as well as the subsequent case-law since Dorsch Consult Criteria). This situation effectively excluded EU courts from reviewing the compatibility of FIFA’s rules with EU Law. The Supreme Court expressed concerns that this limitation might prevent individuals from fully exercising their EU-based rights, such as the free movement of capital, workers, and services, by depriving them of access to an independent court empowered to interpret EU Law. It also sought clarification on whether attaching res judicata to an arbitral award reviewed solely by non-EU bodies undermines the fundamental rights guaranteed by Article 47 of the EU Charter of Fundamental Rights, which ensures effective judicial protection for individuals whose rights are infringed.

Ultimately, the crux of the matter is what to do with awards made by bodies such as the CAS, which are subject to Swiss judicial review but cannot refer preliminary questions to the ECJ when their rulings involve EU Law. FIFA, UEFA, and several governments that submitted observations (such as Belgium and France) argue that awards like those issued by the CAS can indeed be subject to judicial review by EU Member State courts, but only in relation to public policy issues, drawing on case law concerning commercial arbitration, such as the Eco Swiss judgment. However, sports arbitration under CAS differs significantly from commercial arbitration (see International Skating Union, C‑124/21 P): Firstly, commercial arbitration is voluntary, whereas FIFA regulations impose CAS arbitration as exclusive and mandatory. Secondly, sports arbitration is self-sufficient, therefore contrast to commercial arbitration, which requires court intervention, FIFA can enforce a CAS award autonomously without the judicial involvement. These differences justify varying degrees of judicial oversight between the two systems. Moreover, public policy is not a central issue in this case.³ AG Ćapeta addresses these distinctions convincingly in her Opinion and rightly dismisses the applicability of the Achmea case law to this proceeding.

Therefore, the limited judicial oversight in commercial arbitration seems to be insufficient within the framework of FIFA’s mandatory and exclusive arbitration system, as the national judiciary (in this case, the Belgian Supreme Court) must be able to exercise control over the conformity of FIFA’s rules with EU Law, without any CAS award being an obstacle; and this cannot be limited to questions of public policy, but to all applicable provisions of the EU legal order. Otherwise, the self-enforcing nature of FIFA’s arbitration system would restrict the guarantee of effective judicial protection against a CAS award that could violate the rights guaranteed by EU Law, particularly Article 47 of the Charter. Thus, attributing res judicata effect to an arbitral award regarding its declaration that EU Law has not been violated would contradict the principle of effective judicial protection (pars. 106-108 of the AG’s opinion).

At this juncture, and as long as institutions such as CAS or FIFA have their headquarters outside the EU, it is undoubtedly pertinent to reconsider whether some sort of direct challenge should be implemented to assess the compatibility with EU Law of awards made in cases such as the present one, where arbitration is mandatory. The answer is most likely affirmative: Claiming damages does not negate the lack of direct jurisdictional actions, as evidenced by the International Skating Union case (par. 201) and as the AG rightly points out (pars. 102-105).

Given the AG's highly accurate opinion, the CJEU's verdict is eagerly awaited. There are compelling reasons to be optimistic that the judgment will align with the arguments set out in the previous paragraphs. While this could potentially result in the validation of agreements such as the one signed with Doyen Sports, it would ensure a more stringent review of FIFA and CAS decisions in the future, safeguarding fundamental rights and aligning with the EU legal system.

The relationship between football and EU Law has grown increasingly close, particularly since the landmark Bosman case. Over the past year, this relationship has become significantly more strained. On one hand, there is the Lass Diarra case (C-650/22), which ruled that certain FIFA regulations on the transfer of professional players are incompatible with EU competition law. On the other hand, there is the (potential beginning of the) Superleague saga (C-333/21). At this time, the RFC Seraing judgment will undoubtedly mark another turning point in this complex interaction between the claimed autonomy of sports regulations and the treatment of sport as an economic activity, then subject to common rules of oversight and dispute resolution. As economic forces exert greater control over football, EU Law could provide an opportunity to uphold principles of transparency, fairness and, above all, equality, thereby steering the game towards a democratic future that puts the many (and the modest) before the few (and the elite).