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The limits of the CAS’s umbrella: at EU level

Whatever one’s normative perspective on the virtue of sporting autonomy secured through the relative immunity from scrutiny of the rulings of the CAS, the strong, if not absolute, protection which is provided—both in Switzerland and in the many states which are parties to the New York Arbitration Convention—forms an important part of the descriptive understanding of the profile of the contractual route to securing the autonomy of the decisions and practices of sporting bodies from review by the ordinary courts.

But some sports-related disputes are not channelled through the CAS, while others cannot be, for want of material or personal jurisdiction. Cases involving parties who have not agreed to participate in the network of arrangements that confer exclusive jurisdiction on dispute settlement procedures that are internal to sport and ultimately on the CAS are routed through the ordinary courts. Those involving broadcasters are an important instance. Such cases are not contractually tied into the lex sportiva: they escape the limits of the largely closed internal world of sporting regulation.

In the particular case of the EU, many cases have arisen without any involvement of the CAS. The landmark rulings in Walrave and Koch[1] and Bosman[2] [3] [4] [5] pre-date the establishment of the CAS. The more recent Karen Murphy case involved broadcasting rights and so lies beyond the jurisdiction of FIFA and the CAS.66 Even where a ruling of the CAS is at stake, EU law tends to assume the jurisdiction of the Court of Justice and of national courts of the Member States to examine the matter. Meca-Medina andMajcen v Commission arose out of a ruling of the CAS which confirmed (though shortened) a period of suspension imposed on swimmers by the sport’s governing body, FINA, for violation of anti-doping rules.67 That ruling had not been appealed to the Swiss Federal Supreme Court. But the litigation that reached the Court was not a direct challenge to that ruling of the CAS. Instead it was founded on alleged violation of EU competition law and in particular it concerned the role of the Commission, which had rejected the applicant swimmers’ complaint that they were the victims of a violation of those Treaty provisions.6® The matter was considered at length and in very different ways by (what are now) the General Court and, on appeal, the Court of Justice, and it was ultimately decided that no violation of EU competition law had been demonstrated. This is explored in Chapter 5. But this conclusion was reached only after a careful (and controversial) examination of the proper interpretation of EU law in this (sporting) context. At no stage did either Court treat the matter as closed by the earlier ruling of the CAS. And no reference at all was made to the New York Convention. In similar vein the Commission’s treatment of UEFA’s rule forbidding multiple ownership of clubs, which will be examined more fully in Chapter 5.2, notes that the dispute had previously been addressed by the CAS,[6] but shows not the slightest reluctance to examine the matter in the light of EU competition law and, in conducting its legal assessment, ignores the CAS’s view entirely—even though in fact the CAS’s assessment, favourable to the rule, draws heavily on EU competition rules and largely coincides with that reached by the Commission.[7]

On this evidence EU law has scant respect for the autonomy of the process of arbitration in general and for the lex sportiva in particular. EU competition law comes first. The objection to this approach insists on its tendency to fragment the consistent and even global application of the lex sportiva. The answer, such as it is, is that it does not so fragment it—provided that the lex sportiva meets the basic requirements of EU law. And if it does not meet those requirements, then it does not serve a high enough value to claim hierarchy, and must yield. That, of course, is a perspective that makes perfect sense as a means to defend the coherence of the EU’s legal order. But it is much less attractive from the perspective of governing bodies in sport.

One can readily feel the force of this objection when seen from within sports governance—the global system applies in the EU only in so far as the EU permits it to. That risks fragmenting the lex sportiva. In one part of the world, the EU, its application is conditional on compliance with the peculiarities of local laws. And this is the heart of the inquiry into how legitimate the lex sportiva is: should it be allowed priority over ‘ordinary’ law? Is the claim to specific expertise and global reach strong enough? The counter is exactly that the lex sportiva is dangerous because of its devotion to sporting expertise and the exclusion of other proper social and political concerns of ‘ordinary’ law; and also that the aspiration to global reach is precisely what is a source of concern, for it envisages a zone of such immense power for sports bodies.

This is a tension to return to later in this book, for full assessment requires insight into how far EU law truly goes in setting aside sporting autonomy in favour of its own particular expectations. That is, it must be asked how genuine and real is the conflict between EU law and the lex sportiva.

  • [1] Case 36/74 [1974] ECR 1405. See Ch 4.
  • [2] Case C-415/93 [1995] ECR I-4921. See Ch 4.
  • [3] Joined Cases C-403/08 and C-429/08 [2011] ECR I-9083. See Ch 11.8.
  • [4] CAS 99/A/ 234, 99/A/235, unreported.
  • [5] Case C-519/04P [2006] ECR I-6991. See Ch 5.
  • [6] CAS 98/200 AEK Athens and Slavia Prague v UEFA.
  • [7] COMP 37.806 ENIC/UEFA, IP/02/942, 27 June 2002. The rejection decision is availableat accessed29 November 2016.
 
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