Another case, another Bosman?
Whatever the pretences of the sport’s officialdom, football and the law share an uneasy existence. And 25 years on from the Bosman case, Belgium is once again the venue in a tussle for supremacy.
Two issues are at stake. The first is the right of the Swiss-based Court of Arbitration for Sport (CAS) to act as supreme court for all issues involving sporting entities – from players to clubs to national associations to international governing bodies. The second is the right of FIFA and UEFA to enforce the use of CAS to resolve all disputes, ranging from doping to transfers to contracts.
In the Bosman case, Belgian courts considered themselves inappropriate to rule on an international dispute because the player wanted to move from a Belgian club to a French club. Hence the case eventually went to the European Court of Justice – and the revolutionary outcome whose effects are still being felt.
Since then, a handful of other cases have shaken the CAS peace but without disturbing its overarching monopoly on sport-linked right and wrong.
One such case concerned the speed skater Claudia Pechstein. Another involved the lower-league German club SV Wilhelmshaven, while a third was about the right of UEFA to enforce its financial fairplay regulations.
The latest case concerns a complaint by RFC Seraing and the investment fund Doyen Sports against a four-window transfer ban imposed by FIFA and upheld by CAS for the Belgian club’s breach of a ban on third-party ownership.
Seraing and Doyen went to the civil courts, and the Brussels Court of Appeal ruled that the legality of CAS should be examined in relation to European law and the European Convention on Human Rights, as well as the “general prohibition on ordinary courts” which is a key clause in all football bodies’ statutes.
FIFA and CAS have both derided the assessment which held that arbitration could exist only if real consent existed between the parties. CAS opined that this was merely an issue of semantics.
The dispute raises further questions. While CAS may “own” the right to judge sports issues, how can it claim jurisdiction over contract law concerning business operations? And how can football bodies who are happy to enforce broadcasting and media rights contracts object when they fall foul of the same legal strictures?
Seraing and Doyen may become lost to sight in a European legal labyrinth, but football should be aware that this case is but a straw in an ever-stronger wind.