PORTUGAL Trends and Developments Contributed by: Miguel Santos Almeida, Maria Novo Baptista, João Saúde and Julieta Ricciardi, Sérvulo & Associados
preliminary ruling of the ECJ on whether EU law pre - cludes the application of such national provisions to an arbitral award that has been reviewed solely by a court of a state that is not a member state of the EU (ie, Switzerland). The ECJ decided that direct access to a full judicial review by a national court against any and all rules of EU law must be available to EU sport actors that are subject to FIFA’s system of dispute settlement, and therefore concluded that a final CAS award issued by a state that is not an EU member state shall be subject to review by a court of a member state on compliance with EU law. The decision reached by the ECJ was sustained on two grounds: • FIFA’s sports arbitration clauses are mandatory, which means that the parties did not freely accept to being subject to an arbitral award that cannot be reviewed; and • unlike in civil and commercial arbitration, FIFA can enforce the arbitral award on its own without resorting to an enforcement proceeding, which means that it is highly unlikely that compliance of the decision with EU law would ever be analysed by a judicial court. This ruling introduces a new paradigm in balancing sports autonomy, private arbitration and respect for the EU legal framework. First, clubs, athletes and other sports stakeholders are now recognised as having an internal judicial avenue to challenge arbitral decisions rendered within bodies such as the CAS whenever rights or principles pro - tected under EU law are at stake.
Second, sports federations, including FIFA, will need to review any regulations that mandate exclusive arbitration at the CAS, with the risk that such deci - sions could be annulled or rendered unenforceable by national courts. The CAS itself may also be required to reconsider its procedural rules to ensure compliance with EU law. Finally, the ruling has broader implications for sports arbitration in general. The fact that the CAS is based in Switzerland and that its decisions are tradition - ally regarded as final is no longer sufficient to con - fer “immunity” from the EU legal order. A practical effect may be an increase in litigation in member state courts, especially in sensitive areas such as transfer bans, disciplinary sanctions or, as in the present case, the prohibition of TPO. The decision has thus revived the debate on the legal - ity of FIFA’s TPO ban, putting the issue back on the sports law agenda, while reaffirming that any restric - tion on an economic freedom must be subject to adequate scrutiny by EU courts under the Treaties. The ruling did not declare the TPO ban illegal, but it opened the door – and created legal tools – for its compatibility with EU law to be reassessed. The Seraing case represents an earthquake in the worldwide sports ecosystem, with further conse - quences for the Portuguese case.
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