RFC Seraing v FIFA: Compulsory Arbitration, Judicial Review, and a move to Dublin?

 

Saksham Agrawal, student at National Law School of India University, Bangalore

Photo credit: Court of Arbitration for Sport in Lausanne, by Fanny Schertzer via Wikimedia Commons

 

Introduction

In its Grand Chamber judgment in RFC Seraing v. FIFA (‘RFC Seraing’), the Court of Justice of the European Union (‘CJEU’) entered terrain historically defined by institutional restraint: the internal regulation of international sport. Yet the Court’s decision does not merely reinforce the primacy of Union law in a domain often cordoned off by arbitral exceptionalism; it articulates a principle of constitutional embeddedness for systems of private adjudication whose effects extend to protected market rights. The ruling demands that arbitration which is functionally mandatory and materially public, such as proceedings before the Court of Arbitration for Sport (‘CAS’), must remain permeable to fundamental guarantees embedded in the EU Treaties. Those guarantees include effective judicial protection, access to national courts, and interim relief (paras. 85–87, 91, 96).

The facts themselves are unremarkable. FC Seraing, a Belgian football club, entered into an economic rights agreement with Doyen Sports, a private investment firm. That arrangement ran afoul of FIFA’s regulatory framework prohibiting third-party ownership (‘TPO’), prompting sanctions which were subsequently upheld by the CAS (paras. 29-36). The applicants sought annulment of the CAS award before the Swiss Federal Supreme Court (‘SFSC’), which declined to intervene, and eventually was also disposed of by the Belgium Court of Appeal. (paras. 37-59). It was then brought in front of the Court of Cassation in Belgium, which then referred questions about the dispute to the CJEU. The CJEU found merit in their argument that the enforcement of the CAS award would contravene rights guaranteed under EU law, notably Articles 16 and 47 of the Charter of Fundamental Rights.

What distinguishes the CJEU’s reasoning is its resistance to false dichotomies. It does not require a renunciation of sports arbitration; nor does it retreat into deference. Instead, it recasts CAS not as an autonomous space insulated by Swiss procedural law, but as an adjudicative body whose awards must conform to EU public policy when they affect persons within the EU (paras. 89–91). While recourse to compulsory arbitration may serve the goal of uniform application, that goal cannot override the constitutional requirement of effective judicial protection (paras. 94-96). The CAS, situated outside the EU’s judicial architecture and lacking the capacity to make preliminary references under Article 267 TFEU, cannot serve as the terminus of legal review where EU rights are at stake (para. 125).

This analysis places RFC Seraing in jurisprudential continuity with the ECtHR’s judgments in Mutu and Pechstein v. Switzerland and the very recent Semenya v. Switzerland. In both cases, the ECtHR emphasised that the formal voluntariness of arbitration in elite sport masks coercive structural conditions. That posture is echoed in Seraing, where the CJEU held that the CAS mechanism, despite its formal appearance of consent, was effectively unilaterally imposed (paras. 92–93).

What emerges, then, is not a rejection of sports arbitration but a redefinition of its limits. The question is no longer whether private adjudication in sport is legitimate, but whether it can claim legitimacy while operating beyond the supervisory jurisdiction of courts charged with upholding fundamental rights. RFC Seraing affirms that it cannot.

This article situates RFC Seraing within the broader jurisprudence on arbitration and EU constitutional law, and argues that the decision marks a recalibration of the enforcement of arbitral awards within the EU when such awards affect rights guaranteed under EU law. It contends that the CJEU conditions recognition of CAS awards on their reviewability under Article 267 TFEU and conformity with EU public policy. While affirming the role of sports arbitration, the judgment rejects the insulated finality long conferred by Swiss-seated proceedings and invites institutional realignment within the EU framework.

The article proceeds by first analysing Seraing alongside Mutu and Pechstein and Semenya to examine its implications for arbitral finality under the CAS. Second, it considers a structural response capable of aligning the seat of CAS with the requirements of EU law set by the CJEU.

Unpacking RFC Seraing

At the centre of the RFC Seraing judgment lies a jurisprudential shift: arbitration may not derogate from the core guarantees of EU law merely because it arises from a private ordering framework or claims finality under foreign law. The CJEU’s reasoning is clear as it draws a precise boundary between legitimate regulatory autonomy and illegitimate adjudicatory insulation (paras. 85-99).

The Court holds that recourse to arbitration proceedings, such as those at issue in the main proceedings, does not, in principle, raise any objection (para. 94). However, where such arbitration proceedings have a mandatory nature, that objective of uniformity cannot justify undermining the requirement of effective judicial protection of the rights which individuals derive from EU law” (para. 95).

Even when parties have formally accepted arbitration as a condition for participating in regulated sport, they must retain access to judicial review before courts in a Member State. A national rule which confers the authority of res judicata, in the context of the recognition and enforcement of an arbitral award that has been made in another Member State or in a third country, on a decision which has not been subject to review by a court or tribunal of a Member State which is entitled to make a reference for a preliminary ruling under Article 267 TFEU, should be disapplied by the national court if that award is inconsistent with the principles and provisions which form part of EU public policy (para. 108).

This doctrinal position responds to a structural asymmetry in international sports governance. The CAS, as a private body domiciled in Switzerland and bound by the Swiss Private International Law Act, issues awards subject only to the narrow annulment criteria in Article 190(2). Among those, only subsection (e) ‘the award is incompatible with public policy’ provides a potential entry point for fundamental rights claims. However, the ECtHR has already held this threshold to be inadequate. In Semenya v. Switzerland, the ECtHR held that review by the Federal Supreme Court had not satisfied the requirement of particular rigour on account of its very restrictive interpretation of the notion of public policy. (Semenya, paras. 230–233).

Semenya further insisted on the requirement of a “particularly rigorous examination”, given the CAS’s mandatory and exclusive jurisdiction” (Semenya, paras 209, 216-217). In this context, the ECtHR acknowledged that the CAS was generally imposed on sportspersons by the governing body which exercised structural control over the international sports arbitration system (Semenya, para. 209). That coercive structure, combining formal consent with functional compulsion, directly mirrors the system scrutinised in RFC Seraing.

Earlier, in Mutu and Pechstein, the ECtHR found that one of the applicants was obliged to accept the arbitration agreement in order to be able to take part in competitions organised by the ISU (the International Skating Union) and to earn her living. She had not accepted this clause freely and in a non-equivocal manner (Mutu and Pechstein, paras. 113-115). Moreover, the Court drew attention to the institutional imbalance within the arbitral system. It noted that “the ICAS [the International Council of Arbitration for Sport] was itself entirely composed of individuals who had come from those sporting bodies, which indicated the existence of a certain link between ICAS and the organisations likely to challenge athletes in potential disputes, particularly those of a disciplinary nature” (Mutu and Pechstein, para. 154) – although on the facts this was not sufficient to find a breach of the ECHR (rather the breach was a failure to hold a public hearing).

However, it is precisely this pattern of private adjudication functionally required for participation, and structurally designed by those wielding regulatory power, that RFC Seraing targets. The CJEU offers a concrete alternative. It held that it must, in any event, remain possible for the individuals concerned by such awards to obtain a review, by a court or tribunal meeting all the requirements arising from Article 267 TFEU, as to whether such awards are consistent with the principles and provisions which form part of EU public policy (paras 99-115).That review can occur, the Court suggests, where the seat of arbitration lies within a Member State, thereby enabling national courts to exercise EU-compatible oversight (para. 125).

Finally, the Court reaffirms continuity with global arbitration law. It does not displace the New York Convention, but reinterprets it. The judgment held that although that Convention is not binding on the European Union, all the Member States and, moreover, Switzerland, are parties to it. It requires States to ensure that parties can seek review of such awards for compatibility with national public policy. For EU Member States, this includes ensuring compliance with EU public policy.

A Turning Point for CAS?

The RFC Seraing judgement essentially amounts to a doctrinal rejection of unreviewable arbitration within the EU legal space. Recognition and enforcement of CAS awards is no longer a matter of formality; it is contingent upon compatibility with the Union's judicial structure.

In proposing a functional remedy, the Court notes that arbitration procedures, such as those at issue in the main proceedings, may also be conducted in a Member State of the EU. In that case, the award made at the end of such procedures may be subject to review by a court or tribunal of that Member State which is entitled to make a reference for a preliminary ruling under Article 267 TFEU (para. 99).

This reference is not merely hypothetical. UEFA's Authorisation Rules already allow for the option of appeals to CAS panels to be seated in Dublin, Ireland. That option, long available but rarely exercised, may now become the only path to avoiding fragmentation in award enforcement across Member States. It is not thus unreasonable to suggest that there might be a shift to Dublin soon.

The practical issue, then, is if CAS continues to render awards from a non-Member State seat, such as Switzerland, any decision that implicates Charter rights or economic freedoms may trigger divergent enforcement proceedings before multiple national courts. That would mark the end of CAS as a terminal forum in cases with EU implications. The alternative, suggested by the Court, is for CAS to seat panels within a Member State of the EU, thereby allowing for judicial review within a Member State system (para. 99). In this institutional reconfiguration, CAS retains its role, but only conditionally and subject to oversight, integration, and reform.

One understanding of RFC Seraing is that it is an attempt to position the CJEU alongside the Swiss Federal Supreme Court as a potential final reviewer of CAS awards, at least within the EU. Like the ECtHR in Mutu Pechstein and Semenya, the CJEU affirms the functional necessity of compulsory sports arbitration but subjects it to enhanced judicial scrutiny, this time under the rubric of EU public policy.

The CAS, as presently structured, is institutionally indispensable yet legally unsustainable in its current form. It must reform procedurally and jurisdictionally to accommodate EU legal standards, or risk marginalisation within the European legal order.

Conclusion

The RFC Seraing judgment draws a precise constitutional limit around the recognition of arbitral awards within the EU legal order. It does not repudiate sports arbitration but affirms its continued utility while insisting that awards affecting rights guaranteed by EU law must be reviewable by courts entitled to make references under Article 267 TFEU.

The CJEU’s reference to the possibility of conducting arbitral proceedings within a Member State (para. 99) points to an institutional realignment rather than rupture. That pathway already exists in UEFA’s Authorisation Rules, which allow for appeals to CAS panels seated in Dublin, Ireland. Seated within the Union, such panels would fall under the supervisory jurisdiction of EU courts, thereby enabling compliance with the requirements of effective judicial protection outlined by the Court.

RFC Seraing thus preserves the adjudicative role of CAS but subjects it to constitutional constraints when operating within the European legal space. The outcome is not a rejection of arbitral autonomy, but its subordination to fundamental rights protections under Union law.