The Court of Arbitration for Sport and EU Law

Publication Date01 Apr 2015
AuthorAntoine Duval
DOI10.1177/1023263X1502200205
SubjectArticle
224 22 MJ 2 (2015)
THE COURT OF ARBITRATION
FOR SPORT AND EU LAW
Chronicle of an Encounter
A D*
ABSTRACT
At the time when the Bosman case was decide d, nearly twenty years ago, few could have
predicted that one of its main institutional l egacies would be the transformation of the Cour t
of Arbitration for Sport (CAS) in Lausanne into a true ‘Supreme Court of World Sport’. In
fact, the use of arbitration has proven to be a ver y successful legal s trategy to curb access
to national courts and to curtail the rea ch of EU law in the sporting world. Neverthel ess,
the legal relationship between EU law and the CAS remain s largely uncharted. However,
resort to the CAS for many of today’s biggest sporting di sputes raises numerous questions
regarding both its handling of EU law and its status unde r EU law.  ese question s will be
addressed here, with the pur pose of providing a preliminary roadmap to cr itically grasp
the interaction between the CAS and EU law.  e rst part of thi s article will introduce the
general traits of the interaction between EU law and arbitration (Section 2). In the second
part, I will tackle the way the CAS ha s been dealing with EU law in its proceedings (Section
3). Finally, in a third part, I will consider how CAS awards can be challenged on the basi s of
EU law (Section 4). I will conclude by calling for the imposition of what I coined a ‘Solange’
formula on the CAS.
Keywords: arbitration; C ourt of Arbitration for Sport; EU law; lega l pluralism; lex
sportiva
* Senior Research er in International a nd European law at the A SSER Institute i n  e Hague. I wish
to thank Ben Van Rompuy, Tanja Ehner t, Marco van der Harst and Eri ka Hassler for their precious
comments and sug gestions.
e Court of Arbit ration for Sport and EU Law
22 MJ 2 (2015) 225
§1. IN TRODUC TI ON
At the time when the Bosman1 case wa s decided, nearly twenty years ago, few could have
predicted that one of its main institutional legacies would be the tran sformation of the
Court of Arbitration for Spor t (CAS) in Lausanne into a true ‘Supreme Cour t of World
Sport’.2 Back then, the doomsayers were anticipat ing the apocalypse: the sur vival of the
beautiful game was at stake.3 In spite of this pessimism, football is still, and in fact,
more t han e ver, the most suc cess ful g lobal sport i n term s both of econ omic re venues a nd
social appeal.Many others, e specially in t he academic world, were hoping for the end
of the transfer system,4 but that d id not happen either. Today, the transfer system is still
alive and kick ing. As o en in human history, the unanticipated prevailed.  e Bosman
ruling cha nged the face of European sport for good, but just not in t he expected way.
is special issue discusses those t ransformations and tackles the new frontiers of the
interaction of EU law with sport a nd the lex sportiva.
e relationship between EU law a nd the CAS is one of these new frontiers.  e CAS
was created long before the Bosman ruling. I n the early 1980s, the IOC President at the
time, Juan Antonio Sama ranch, decided to sponsor the creation of a speci c arbitra l
tribunal for sport.5 He rightly perceived the risk of protracted legal disputes in f ront of
national courts as a p otential threat to the autonomy of Sports Governing Bod ies (SGBs).
Moreover, the commercialization of sport led by the IOC’s drive to recruit sponsors a nd
sell the broadcasti ng rights for the Olympics,6 necessarily heightened the risk of lega l
disputes. Hence, arbitration was to be t he magic weapon insulating spor ts from the
national courts.7 e statutes of the CAS were dra ed in 1983 and entered into force in
1984. However, from 1984 to 1995, the CAS issued only a very limited number of awa rds
(in the ten years between 1986 and 1995, 38 awards).8 e newly c reated tribunal was
1 Case C-415/93 Union royale belge des s ociétés de football as sociation ASBL v. Jean-Marc Bosman, Ro yal
club liégeois SA v. Jean -Marc Bosman and other s and Union des assoc iations europée nnes de football
(UEFA) v. Jean-Marc Bosman, EU:C:1995:463.
2 is quote is o en attributed to former IO C President Juan Antonio Samaranc h. See for example R.
MacLaren, ‘Twenty-Five Years of the Cou rt of Arbitration for Spor t: A look in the rear-view m irror’, 20
Marq. Sports L. R ev. (2010), p.306.
3 Lennart Joha nsson, president of UEFA, arg ued that the Eur opean Union was tr ying ‘to kil l club football
in Europe’, see B. Ga rcia, ‘UEFA and the European Union: From Con frontation to Co-operation?’, 3
Journal of Conte mporary European Resea rch (2007), p.202.
4 R. Blanpai n, e Bos man case:  e End of the Transfer Syst em? (Sweet & Maxwell, 1996).
5 An o cial historiogr aphy of the birth of the Cour t of Arbitration for Sport is avail able on the CAS’s
website, www.tas-cas.org/en/general-information/history-of-the-cas.html.
6 A turn harsh ly criticized by the fa mous sociologist Pierre Bourd ieu in the early ninetie s, P. Bourdieu,
‘Les Jeux Olympique s. Programme pour une a nalyse’, 103 Les actes de la rec herche en sciences soci ales
(1994), p.102–103.
7 J. Anderson, ‘“Tak ing Sports Out Of  e Cour ts”: Alternative Dispute R esolution and the Inter national
Court of Arbit ration for Sport’, 10 J. Legal Aspec ts Sport (2000), p.123.
8 See general statistics provided by CAS, www.tas-cas.org/ leadm in/user_upload/CAS_Statistics_2013.
pdf.
Antoine Duval
226 22 MJ 2 (2015)
in limbo and largely ir relevant in practice.9 e 1994 Pa ris Agreement reforming the
CAS’s institutional fra mework was seen as a fresh star t, but the reluctance of sporting
federations to submit their internal d isputes to its review was still not entirely overcome
(th e Fédération Internationale de Football Association (FIFA) in particular, was st ill
resisting). And then ca me Bosman.
e European Cour t of Justice’s (as it was then described) judgment on 15December
1995 sent a shockwave through the world of sport.  e prevalent feeling a mongst SGBs
of being untouchable, out of reach of the eart hly laws, was shattered at once.  is led to
a prise de conscience, and the need for the CAS a s a necessary evil beca me obvious. In
the years a er Bosman, all t he Olympic federations, and the most important amongst
them, FIFA, decided to include an arbitration clause i n their statutes designati ng
CAS as the competent forum to deal with appeals aga inst their internal de cisions.
Statistical ly, the change was dramatic. In the ten yea rs following Bosman, from 1996 to
2005, the CAS issued 631 awards.10 In the post-Bosman world, the CAS is omnipresent,
but not only because it is cheaper, faster and more knowledgeable a s some may, rightly
or wrongly, belie ve.11 Recourse to arbitrat ion has been a very successf ul legal strateg y
to curb access to national courts and to curta il the reach of EU law in the sport ing
world.
Historically t he success of the CAS and EU law’s intervention in sport are intimately
related, but their legal relationship has ver y rarely been the subject of doctr inal
scrutiny.12 Indeed, recourse to the CAS for many of today’s biggest sporting disputes
raises numerous quest ions regarding both its handli ng of EU law and its status under EU
law.  ese questions wi ll be addressed here, with the pur pose of providing a preliminary
roadmap to better grasp t he interaction between the CAS and EU law.  e rs t section
of this art icle will address t he general traits between EU law and arbitration (Section
2). In a second part, I will tac kle the way the CAS has been de aling with EU law in its
proceedings (Section 3). Finally, in a third par t, I will consider how CAS awards can be
challenged on the basis of EU law (Sect ion 4).
9 ough it did gain academic relevance.  e rst academic commentaries included some of the most
renowned names in t he  elds of intern ational law and internation al arbitration: B. Sim ma, ‘ e Cou rt
of Arbitration for spor ts’, in K.-H. Böckstiege l (ed.), Law of nations, law of inter national organizat ions,
world’s economic law. Festschr i für Ignaz Sei ld-Hohenvelder n (Heymann, 1988), p.573; and J. Pauls son,
‘Arbitration of Internationa l Sports Disputes’, 9 Arbitration International (1993), p.359–369.
10 On the quasi-uni versal recourse to CAS in intern ational sports, see M. Mai sonneuve, L’arbitrage des
litiges sportifs (L.G.D.J, 2011), p.23–24.
11 is commonly held view is summed up by Yi: ‘And unlike domestic courts, the CAS is fast, cheap,
and e cient.’ D.H. Yi, ‘Turning Medals into Me tal.Evaluatin g the Court of Arbitrat ion of sport as an
international t ribunal’, 6 Aspe r Rev. Int’l Bus. & Trade L. (2006), p.313.
12 We know only of M. Coccia, ‘Applicable law in CAS proceedings: what to do with EU law?’, in A.
Bernasconi a nd A. Rigozzi, Spor ts Governanc e, Football Disp utes, Doping (Edit ions Weblaw, 2009),
p.69–93.

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