In recent weeks, the media has reacted rather dramatically to the decision handed down by the Brussel’s Court of Appeal on 28 August 2018, in a case brought by Belgian football club RFC Seraing (Seraing). The precise impact of the decision remains to be seen although it is unlikely that this represents the fall of international sports arbitration as we know it. In fact, the CAS has been here before – in 2016 the German Supreme Court upheld a CAS arbitration agreement in the Pechstein case.
The coverage has centred around the Court’s finding that “enforced arbitration” clauses contained in the FIFA, UEFA and Royal Belgian Football Association (URBSFA) Statutes and Regulations which give jurisdiction to the Court of Arbitration for Sport (CAS), may be challenged. This is on the basis that such clauses may be too general and do not concern a “specific legal relationship”.
In 2015, Belgian football club RFC Seraing and Doyen Sports (Doyen), an investment fund in support of third party ownership, challenged a transfer ban issued by FIFA, which held Seraing to be in breach of the FIFA Third Party Ownership (TPO) rules found is section V of the FIFA Regulations on the Status and Transfer of Players (RSTP). Seraing were consequently banned from registering players in four (4) consecutive registration periods. Seraing appealed the FIFA decision before the CAS, resulting in a decision dated 9 March 2017 (TAS 2016/A/4490). In that decision, the Panel partially modified FIFA’s ruling reducing the ban on registering players to three (3) consecutive registration periods:
“RFC Seraing is prohibited from registering players, both nationally and internationally, during the three (3) complete and consecutive registration periods following notification of this arbitration award.”
Unhappy with the ruling, Seraing and Doyen appealed the decision before the Swiss Federal Tribunal in proceedings marked 4A 260/2017. The judgment dated 20 February 2018 made reference to the Lazuntina and Pechtein cases and inter alia: upheld the independence of the CAS as an arbitral institution, upheld the basis of FIFA’s TPO rules rejecting the argument that it interfered with the economic freedom of clubs and rejected the appellant’s dis-proportionality argument in relation to the penalty on the basis that such a claim was not admissible before the Federal Tribunal.