PORTUGAL Trends and Developments Contributed by: Miguel Santos Almeida, Maria Novo Baptista and João Saúde, Sérvulo & Associados
account the damage suffered, having regard for the individual circumstances of each case and with due consideration of the law of the country concerned (under the previous rule, compensation was to be calculated with due consideration of the law of the country con - cerned, the specificity of sport and any other objective criteria); • in the event of termination without just cause, the new club of the player will only assume such liability if it is proven that it induced the unlawful termination (the original rule provid - ed that the new club was automatically liable); • the application of sporting sanctions to the new club depends on the former club proving that the new club induced the breach of con - tract (previously, the new club was presumed to have induced the breach of contract); and • the former club’s national association cannot reject the issuance of the International Trans - fer Certificate (ITC) – the original rule provided that the national association of the former club was able to withhold the ITC if there was a dispute over the termination of the playing contract. Considering the interim measures adopted by FIFA, it is clear that the Diarra case will lead to a major overhaul of the transfer system. The Seraing Case In the first few days of 2025, another relevant development in the sports market involved the ECJ: the Advocate General offered the ECJ her opinion on the Seraing case, which may revolu - tionise sports arbitration. The Seraing case originates in a contract entered into by a Belgian football club, Royal Football Club Seraing, with Doyen Sports for the transfer of the economic rights of several football play - ers. FIFA’s disciplinary committee found that
this arrangement breached FIFA’s rules on third- party ownership (TPO) prohibition and imposed certain disciplinary measures on the club, as confirmed by the Court of Arbitration for Sport (CAS) and the Swiss Federal Supreme Court. Following CAS’s decision, Doyen Sports filed a complaint presented before the Belgian courts claiming that FIFA’s TPO prohibition, as imple - mented by UEFA and the Royal Belgian Football Association ( La Union Royale Belge des Socié - tés de Football Association ), was not valid. The Belgian courts declined jurisdiction on the basis that Belgian law attributes the force of res judicata to certain types of commercial arbitra - tion awards, including CAS awards. The claimant appealed the decision to the Bel - gium Court of Cassation, which referred the mat - ter for a preliminary ruling of the ECJ on whether EU law precludes the application of such nation - al 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 Advocate General considered that direct access to a full judicial review by a national court against any and all rules of EU law must be avail - able to EU sport actors that are subject to FIFA’s system of dispute settlement, and therefore con - cluded that a final CAS award issued by a state that is not a member state shall be subject to review by a court of a member state in compli - ance with EU law. The conclusions reached by the Advocate Gen - eral are sustained on two grounds: (i) FIFA’s sports arbitration clauses are mandatory, which means the parties did not freely agree to be sub - ject to an arbitral award that cannot be reviewed; and (ii) unlike in civil and commercial arbitration,
200 CHAMBERS.COM
Powered by FlippingBook