On the 1st August 2025, the Court of Justice of the European Union (‘CJEU’) delivered its preliminary ruling in the names Royal Football Club Seraing v Fédération Internationale de Football Association (FIFA), Union Royale Belge des Sociétés de Football Association ASBL (URBSFA), Union européenne des Sociétés de Football Association (UEFA) and Doyen Sports Investment Ltd (Case C‑600/23) concerning the compatibility of FIFA’s arbitration system with the principle of effective judicial protection under EU law. This judgement follows the opinion of Advocate General Ćapeta delivered on the 16th January 2025.

The dispute originated from a contractual agreement between Royal Football Club Seraing (‘RFC Seraing’) and Doyen Sports, a Maltese investment fund, involving the transfer of economic rights in football players. These arrangements are commonly referred to as third-party ownership arrangements and are prohibited under FIFA’s regulations. In 2015, following disciplinary proceedings, FIFA imposed sanctions on RFC Seraing for breaching its Regulations on the Status and Transfer of Players¹, which sanctions were upheld by the Court of Arbitration for Sport (‘CAS’) and subsequently confirmed on appeal by the Swiss Federal Supreme Court.

In tandem with the FIFA disciplinary proceedings and relevant Swiss proceedings, Doyen Sports and RFC Sérésien (a non-profit association established under Belgian law which runs RFC Seraing) filed proceedings against, FIFA, UEFA and URBSFA before the Brussels Commercial Court. Subsequently, RFC Seraing intervened in the proceedings as an interested party requesting the Court to:

• Declare the total prohibition on the practices of third-party influence and third-party ownership laid down in the FIFA Regulations on the Status and Transfer of Players was incompatible with EU law, namely the provisions regarding competition law², freedom of movement of workers³, freedom to provide services⁴ and free movement of capital⁵;
• Declare the invalidity of any provision laying down such a total prohibition;
• Issue a number of injunctions against FIFA, UEFA and the URBSFA; and
• Award it the provisional sum of EUR 500 000 by way of compensation for the various losses that it claimed to have suffered as a result of the application these rules.

The Brussels Commercial Court held that it had no jurisdiction to examine the requests made by RFC Seraing and subsequently, the Brussels Court of Appeal dismissed all of the claims made by RFC Seraing predominantly on the basis that the arguments concerning the infringement of EU law had already been raised by that RFC Seraing before the CAS, in the context of the dispute between the club and FIFA, and had been rejected in the CAS award, which award was deemed to have: (i) the effect of res judicata between the parties and (ii) probative value vis-a-vis third parties to the CAS Award (in this case URBSFA).

Subsequently, RFC Seraing filed an appeal on a point of law before the Belgian Court of Cassation which then referred the matter to the CJEU for a preliminary ruling. In brief, the questions referred concerned primarily whether, having regard to EU law the national courts or tribunals may be prevented, pursuant to the principle of the authority of res judicata, from reviewing an arbitral award made by the CAS and upheld by the Swiss Federal Supreme Court, which, as a non-Member State Court, does not have the ability to refer questions to the CJEU for a preliminary ruling.⁶

In her opinion, AG Ćapeta acknowledged the unique nature of sports arbitration, which differs significantly from commercial arbitration, namely due to the mandatory nature of the former. In fact, in a standard commercial context, parties would typically enter into arbitration voluntarily by means of an agreement and thus, such arbitration proceedings are then subject to the fundamental principle of party autonomy. In contrast, FIFA’s arbitration system is mandatory, meaning that clubs (such as RFC Seraing) and players must accept that any such dispute be referred to the CAS.

Furthermore, AG Ćapeta considered that the dispute settlement system established by the FIFA statutes is characterised by its self-sufficient nature, meaning that FIFA can enforce the arbitral award on its own, without the need to turn to a Court for such enforcement. Needless to say, this is a very different position to the one available to a party to a commercial arbitration, which will need to turn to a Court for the purposes of enforcing an arbitral award. This distinction is amplified when the arbitral award in question has a cross-border element and thus might require the recognition and enforcement in various countries under international instruments such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the ‘New York Convention’).

Therefore, AG Ćapeta held that such an arbitral award (on the basis of the mandatory nature of such dispute settlement mechanism) must be subject to full judicial review by a national court to assess the compatibility thereof with any and all rules of EU law.

In its decision, the CJEU also distinguished between voluntary and mandatory arbitration, and re-affirmed that in the context of the former, and in line with the principle of party autonomy, parties are free to waive certain rights secured by the European Convention on Human Rights. Subsequently, the Court confirmed that when an arbitration is to be implemented within the EU, such arbitration must be compatible with the judicial architecture of the EU and more specifically, EU public policy (‘ordre public’). On this note, the Court seemingly clarified that even if the seat of arbitration is located outside the EU, the arbitral award must still be amenable to review within the EU, although such review is solely limited to compliance with EU public policy (‘ordre public’).

The CJEU concluded that in line with Article 47 of the European Convention on Human Rights, Article 19(1) of the Treaty of the European Union and Article 267 of the TFEU, Member States cannot automatically confer res judicata status or probative value on arbitral awards made by the CAS in disputes  linked to the pursuit of sport as an economic activity within the EU, unless such awards have first been subject to effective judicial review by a court or tribunal of an EU Member State which is authorised to refer questions to the CJEU for a preliminary ruling.

Further to the above, both the opinion of AG Ćapeta and the judgement of the CJEU shed light on key aspects concerning the notion of EU public policy. In fact, in its opinion, AG Ćapeta states that although the precise meaning and scope of EU public policy is not clearly settled, it does not seem to relate to all rules of EU law, but only to those rules of higher public importance.

Specifically in the context of arbitration, namely the public policy exclusion found under the New York Convention, AG Ćapeta suggests that for the purposes of the New York Convention, the EU principle of effective judicial protection (as a rule of public policy), requires, in cases of mandatory arbitrations, full judicial review of the arbitral award, thereby not limiting such review solely on public policy grounds but on the compatibility of the award with EU law in general.

However, the CJEU ultimately confirmed that in the context of CAS awards, these must be subject to effective judicial review to ensure their consistency with EU public policy and therefore it did not follow AG Ćapeta’s line of reasoning that CAS awards must be subject to a ‘full review’ which is not solely limited to public policy grounds.

Furthermore, the CJEU also made very interesting remarks on the concept of EU public policy in general. Firstly, it reaffirmed previous CJEU case-law which confirmed that Articles 101 and 102 TFEU, dealing with EU competition law, form part of EU public policy. Secondly, the CJEU went a step further and confirmed that the freedom of movement for workers, the freedom to provide services and the free movement of capital also form part of EU public policy. Specifically, the CJEU stated that:

“The freedom of movement for workers, the freedom to provide services and the free movement of capital guaranteed by Articles 45, 56 and 63 TFEU, respectively, also form part of EU public policy. Those three articles, which are the only ones at issue in the main proceedings, also have direct effect (see, as regards Article 45 TFEU, judgment of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 136 and the case-law cited, and, as regards Article 63 TFEU, judgment of 10 March 2022, Grossmania, C‑177/20, EU:C:2022:175, paragraph 44 and the case-law cited). They form part of the foundations of the internal market comprising an area without internal frontiers referred to in Article 26 TFEU.”

The underlying rationale for this extension of the principle of public policy seems to be based on the importance of safeguarding the EU internal market which is built upon the four freedoms and the rules protecting EU competition law, which are effectively, two sides of the same coin.

¹ https://digitalhub.fifa.com/m/620d0240c40944ed/original/Regulations-on-the-Status-and-Transfer-of-Players-October-2022-edition.pdf

² Articles 101, 102 TFEU.

³ Article 45 TFEU.

⁴ Article 56 TFEU.

⁵ Article 63 TFEU.

⁶ ‘(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?’