When should a CAS award be final on issues of EU law? The AG’s Opinion in Seraing v FIFA

The Advocate General (AG) has delivered an opinion in the long running case of Royal Football Club Seraing v FIFA and others C-600/23^[1] (the Opinion), stating that CAS awards in relation to FIFA rules or decisions should be open to review for any and all breaches of EU law, not just, as had been held until now, breaches of fundamental EU laws.

The power of FIFA to make rules or decisions, without court intervention, will soon be revisited by the Court of Justice of the EU. A rule or decision of FIFA may be reviewed by way of a final arbitration before the Court of Arbitration for Sport (CAS) based in Switzerland, from which there is only limited appeal to a Swiss court.  At stake is the extent to which the Court of Justice of the EU, or national EU courts, may reverse a CAS award by applying EU law even though the CAS award is expressed to be final.

Currently EU case law in such cases is that only fundamental laws of the EU (such as laws relating to competition or freedom of workers) must be applied. There has been a series of such cases, including the cases about the abortive European Superleague and the 10 million euro fine on footballer Lassana Diarra, referred to below.  However, the Opinion issued on 16 January 2025 by the Advocate General Capeta takes a different line, namely that EU law should be applied in respect of all and any breaches of EU law, whether fundamental or not. This article recaps the background to the Seraing case and then explores the significance of the AG's Opinion:

• Background to Seraing
• The essential question: when should a CAS award be final on issues of EU law?
• Does the EU principle of ‘effective judicial protection’ preclude ‘res judicata’
• The Advocate General’s Opinion
• Assessment and potential consequences