Sport, arbitration and EU law: the RFC Seraing ruling and the end of CAS/TAS “immunity”?

SÉRVULO PUBLICATIONS 06 Aug 2025

“For good or bad, few passions are as widely and as profoundly shared around the globe as the passion for sport. Its symbolism is often awesome. It brings out the noblest human qualities (good sportsmanship, the quest for excellence, a sense of community), and the basest (chicanery and mob violence). It is also big international business. Its capacity to motivate vast populations is nothing less than fabulous, and so naturally exercises a powerful attraction on those who would use its magic for their own ends. The appetite for political influence and for money moves the heart inside the business suit with a force as primal as that of the dreams of glory that swell the distance runner’s tunic. […] And at the heart of the issue of control is that of ultimate authority to establish norms and to settle disputes. At stake in this case is the question of control: more specifically, the relationship between Fédération Internationale de Football Association’s (FIFA) system of dispute resolution before the Court of Arbitration for Sport (CAS) and the principle of effective judicial protection under EU law.”^[1].

1. Introductory remarks 

The Court of Justice, of the European Union (“Court of Justice” or “ECJ”), in the formation used, inter alia, in more relevant cases (the so-called Grand Chamber), delivered, on August 1, 2025, a judgment with profound implications for the current model of international sports arbitration, addressing directly the status of decisions of the Court of Arbitration for Sport based in Lausanne (“CAS/TAS”). In case C-600/23, Royal Football Club Seraing v. FIFA^[2], the Court of Justice had to rule on whether the CAS rules comply with the fundamental principles of European Union law, in particular articles 19 of the Treaty on European Union (“TEU”) and 47 of the Charter of Fundamental Rights, and the principles underpinning the public policy of the European Union.

In doing so, the Court of Justice issued a clear ruling on the compatibility of the current procedural model applied in CAS with European Union law.

2. Background to the Judgment 

In 2015, Belgian club Royal Football Club Seraing (“RFC Seraing”) entered into financing agreements with Maltese firm Doyen Sports Investments, which included the transfer to Doyen Sports Investments of a share of the economic rights of certain players belonging to the Belgian club, a practice known as third-party ownership (TPO).

The agreements in question were subsequently considered by FIFA to be in violation of the prohibition imposed on third parties from holding economic rights over players, as set out in Articles 18-bis and 18-ter of the then FIFA Regulations on the Status and Transfer of Players (“RSTP”). As a result, FIFA imposed several sanctions on RFC Seraing, including a ban on registering new players during several registration periods, and a fine of 150,000 Swiss francs (CHF).

The Belgian club appealed FIFA’s decision before the CAS, the international body responsible for settling sports disputes. The sanctions were upheld both by CAS[3] and, subsequently, the Swiss Federal Court[4] (both courts established in a country that is not an European Union member State)^[5].

However, RFC Seraing and Doyen Sports Investments were not satisfied and brought an action before the Belgian courts seeking a ruling declaring the absolute prohibition of practices prohibited by article 18 of the RSTP to be unlawful under European Union law. They argued that such a ban constituted a violation of EU law fundamental rules, such as the principle of free movement of capital, the freedom to provide services, the free movement of workers and competition law rules^[6].

The Cour d’appel de Bruxelles (Brussels Court of Appeal), called upon to rule on the matter, handed down a judgment in which it found that the CAS arbitral ruling had become final and binding, acquiring the force of res judicata, and therefore declared itself unable to rule on the matter^[7].

Dissatisfied, RFC Seraing appealed that judgment to the Cour de cassation de Belgique (Court of Cassation of Belgium), the referring court, which, given the existing doubts — notably the conformity of the sports arbitration system with the public policy principles of the EU the binding force of an arbitral decision confirmed in a non-EU member State, and the possibility of ensuring a preliminary ruling by the ECJ in a context of statutorily imposed arbitration — decided to refer the following questions to the Court of Justice under preliminary ruling mechanism:

«1) Does Article 19(1) [TEU], read in conjunction with Article 267 [TFEU] and Article 47 of [the Charter], preclude the application of provisions of national law such as Article 24 and Article 171[3](9) of the [Judicial Code], laying down 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 of the European Union for a preliminary ruling?

(2) Does Article 19(1) [TEU], read in conjunction with Article 267 [TFEU] and Article 47 of [the Charter], preclude the application of a rule of national law according probative value vis-à-vis third parties, subject to evidence to the contrary which it is for them to adduce, 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 of the European Union for a preliminary ruling?»

3. The Court of Justice’s analysis 

In essence, the issue was whether the courts of member States can consider arbitration decisions issued by a court of a non-European Union member State to be binding, even when the parties involved did not have the opportunity to fully exercise their rights under European Union law.

It should be noted that, in this case, the CAS decision originated from an arbitration mechanism imposed unilaterally by an international sports federation—FIFA—responsible for the regulation of football. The existence of an arbitration mechanism that is mandatory rather than voluntary (i.e., not resulting from a freely entered into agreement between the parties) is a recurring feature in disputes arising from sporting activities, as the Court of Justice itself acknowledges. In this context, the Court pointed out that a distinction must be made between mandatory and voluntary arbitration.

In its ruling, the Court of Justice stated that it cannot be accepted that, through recourse to arbitration, individuals can evade the principles and provisions of primary or secondary Union law that are essential to the judicial architecture of the Union and to the safeguarding of its public order, which must always be upheld. This is precisely the case with competition rules (Articles 101 and 102 of the Treaty on the Functioning of the European Union – TFEU) and provisions on free movement, which have direct effect (Articles 45, 56, and 63 TFEU).

The Court of Justice emphasized that, in cases where a judgment has been rendered in the context of a dispute concerning the practice of sport as an economic activity within the territory of the member States of  the Union, and where no direct appeal against that judgment is available before a court of a member State, individuals concerned must have the possibility, at least incidentally, of obtaining effective judicial review by a court of a member State as to whether the arbitral award in question is compatible with the principles and provisions that form part of the Union’s public order.

Following this line of reasoning, the Court concluded that, in the absence of such judicial review, or where such review lacks effectiveness, the effective judicial protection of the individuals concerned is not guaranteed.

In addition, the Court of Justice stressed that national courts not only can, but must, adopt effective provisional measures to ensure the full effectiveness of EU law and—particularly importantly—must also ensure that private arbitration does not exclude the possibility of referring preliminary questions to the ECJ, as provided for in Article 267 TFEU.

Two fundamental legal principles emerge from this ruling by the Court of Justice.

First, the reaffirmation that the public order of the European Union encompasses not only the right of access to an independent court, but also the provisions of the TFEU relating to competition and the free movement of goods, services, persons, and capital. The Court made it clear that these principles cannot be derogated from by arbitration agreements or statutory clauses, even when enshrined by international bodies based outside the Union. The primacy of Union law prevails even over the authority of res judicata arising from decisions of courts in third countries outside the Union.

Second, the defense of the preliminary ruling mechanism as an essential tool for ensuring the uniform interpretation of EU law. According to the Court, it is essential to preserve the possibility of using the mechanism provided for in Article 267 TFEU. If an arbitration system effectively prevents this possibility, this constitutes a violation of Article 267 TFEU and therefore justifies the setting aside of the rules underpinning such mechanism.

In conclusion, the Court of Justice ruled that the provisions of Belgian national law that confer res judicata effect on CAS arbitral decisions, and as a result preventing such decisions from being reviewed under EU law, are incompatible with EU law, insofar as the application of such rules deprives the parties concerned of the possibility of obtaining effective judicial review of such decisions by the courts of the member States under Union law

The Court of Justice's judgment does not annul the CAS arbitration decision, but it does remove its res judicata effect, making it subject to appeal before the Belgian courts. So, individuals concerned can now invoke the alleged violation of principles and provisions of EU law, such as the free movement of capital, the freedom to provide services, the free movement of workers, and competition, before the Belgian courts.

4. Implications for sports and arbitration

This ruling introduces a new paradigm in the balance between sporting autonomy, private arbitration, and the respect for the EU legal framework.

Firstly, clubs, athletes, and other sports agents will now be able to rely on domestic courts to challenge arbitral decisions handed down by bodies such as the CAS, whenever rights or principles protected by EU law are at stake.

Secondly, sports federations, including FIFA, may have to review their regulations that exclusively impose arbitration before CAS to mitigate the risk of their decisions being annulled or unenforceable by national courts. CAS itself may also be forced to rethink its rules of procedure to ensure compliance with EU law.

Finally, the ruling has significant implications for the practice of arbitration in sports. The fact that CAS is based in Switzerland and that its decisions are recognized as final is no longer sufficient to grant them “immunity” from the EU legal order. A practical effect could be an increase in litigation in the courts of member States, especially in sensitive areas such as transfer bans, disciplinary sanctions, or, as in the case under review, the prohibition of third-party ownership.

The decision thus revives the debate on the legality of FIFA’s ban on TPOs, placing the issue back on the sports law agenda by reaffirming, in this regard, that any restriction on economic freedom must be subject to appropriate scrutiny by the courts of the Union and in light of the rules of the TFEU. The ruling did not declare the ban on TPOs to be illegal, but it did open the way — and created the tools — for its compatibility with EU law to be re-examined.

5. Conclusion

The RFC Seraing v. FIFA ruling represents a turning point in how EU law interacts with the arbitration model in international sports. By underlining the centrality of EU public order and the principle of effective judicial protection, the Court of Justice lifts the protective veil that has surrounded the CAS system for decades. For sports industry operators, clubs, athletes, federations, and lawyers, a careful reassessment of existing regulations, arbitration agreements, and litigation strategies is required. Arbitration remains an essential tool in global sports, but it cannot be seen as a haven immune to European judicial scrutiny, much less as a violation of effective judicial protection. 

Miguel Gorjão-Henriques | mgh@servulo.com

Miguel Santos Almeida | msa@servulo.com

Maria Novo Baptista | mnb@servulo.com

Miguel Máximo dos Santos | mxs@servulo.com