An­other case, an­other Bos­man?

World Soccer - - The World -

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.

Chal­lenge...CaS head­quar­ters in Lau­sanne

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