{"id":3397,"date":"2025-08-20T00:09:44","date_gmt":"2025-08-19T22:09:44","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=3397"},"modified":"2025-08-20T12:34:58","modified_gmt":"2025-08-20T10:34:58","slug":"different-but-compatible-approaches-to-international-sports-arbitration-comparing-semenya-ecthr-with-royal-football-club-seraing-cjeu","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/different-but-compatible-approaches-to-international-sports-arbitration-comparing-semenya-ecthr-with-royal-football-club-seraing-cjeu\/","title":{"rendered":"Different but compatible approaches to international sports arbitration: comparing Semenya (ECtHR) with Royal Football Club Seraing (CJEU)"},"content":{"rendered":"\n

Within a single month, both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) – acting through their Grand Chambers – issued judgments regarding dispute resolution in professional sports<\/strong>. These cases focused on the roles played by the Court of Arbitration for Sport<\/strong> (CAS) and the Swiss Federal Supreme Court<\/strong> (FSC).<\/p>\n\n\n\n

In Semenya v. Switzerland<\/a> <\/em>(10934\/21, 10.7.2025), the ECtHR adjudicated the case of an international-level South-African athlete<\/strong> who complained about a set of regulations issued by World Athletics (\u201cthe DSD Regulations\u201d) requiring her to decrease her natural testosterone level in order to be allowed to take part in international competitions in the female category.<\/p>\n\n\n\n

Royal Football Club Seraing<\/a> <\/em>(C-600\/23, 1.8.2025), decided by the CJEU, concerned a Belgian football club which had concluded financing agreements with a Maltese company. The F\u00e9d\u00e9ration internationale de football association (FIFA)<\/strong> found these agreements to be in breach of the prohibition on third parties holding players\u2019 economic rights<\/strong> and therefore imposed several sanctions on the club.<\/p>\n\n\n\n

Pursuant to the regulations applicable to international sports competitions, which establish the CAS as having mandatory and exclusive jurisdiction<\/strong> in respect of disputes arising in this area, both cases were first brought before the CAS, the awards of which were subsequently challenged, by way of a civil-law appeal, before the Swiss Federal Supreme Court<\/strong>, which dismissed both appeals. In both cases, the review by the FSC was limited to assessing whether the CAS award was \u201cincompatible with public policy<\/strong>\u201d, a concept which under Swiss law is even more restrictive than that of arbitrariness (Semenya<\/em>, \u00a7 226).<\/p>\n\n\n\n

In Semenya<\/em>, the ECtHR found inter alia <\/em>that the FSC had breached Article 6 \u00a7 1 <\/strong>of the Convention (right to a fair trial<\/strong>). Because of its proximity with RFC Seraing<\/em>, this finding will be the focus of the following developments.<\/p>\n\n\n\n

In RFC Seraing<\/em>, the CJEU ruled, in substance, that in circumstances as in the case at hand, where the dispute is linked to the pursuit of a sport as an economic activity<\/strong>, no<\/strong> authority of res judicata<\/em><\/strong> and no probative value<\/strong> could be conferred within the territory of a Member State on an award made by the CAS<\/strong>.<\/p>\n\n\n\n

*              *              *<\/p>\n\n\n\n

With the two European Courts pronouncing upon the same international arbitration system \u2013 one that plays an important role in the world of international sports \u2013 the question arises as to what these rulings have in common<\/strong>, and how domestic courts should handle them<\/strong>.<\/p>\n\n\n\n

A first common feature of these two rulings is the understanding shown for the particularities of litigation in international sports<\/strong>, which may justify certain restrictions on the common procedural rights<\/strong> (Semenya<\/em>, \u00a7\u00a7 195-199; RFC Seraing<\/em>, \u00a7 84). However, there are limits to these restrictions<\/strong>, not least because of the structural imbalance<\/strong> which often exists between sportspersons and the bodies which govern their respective sports, and because these sportspersons have no choice<\/strong> other than submitting to the compulsory arbitration<\/strong> of the CAS. It is on the definition of these limits<\/strong> that the two European Courts follow different approaches. While the Luxembourg approach is more formal<\/strong>, the Strasbourg approach is more substantial<\/strong>.<\/p>\n\n\n\n

The CJEU draws the line where matters relating to EU public policy<\/strong> are involved. These matters include the competition rules<\/strong> and the freedoms of movement<\/strong> (\u00a7\u00a7 88-89). I such cases, the second sub-paragraph of Article 19(1) TEU<\/strong>, read in conjunction with Article 267 TFEU<\/strong> and Article 47 of the EU-Charter<\/strong>, requires full respect <\/strong>of the right to an effective judicial review<\/strong>. In concrete terms, this means that any domestic court of a Member State called on to give effect to an arbitration award<\/strong> such as the one by the CAS in the present case, must review <\/strong>that award for consistency with EU public policy<\/strong> and have the possibility to refer questions for a preliminary ruling by the CJEU<\/strong>, pursuant to Article 267 TFEU.<\/p>\n\n\n\n

By contrast, the judgment of the ECtHR, which is directly reviewing the judgment of the FSC, follows a more substantial approach<\/strong>. Considering the case under Article 6 \u00a7 1 of the Convention, the ECtHR first notes the nature and importance of the \u201ccivil rights\u201d invoked<\/strong> by the applicant, which are in fact fundamental rights<\/strong>, notably the rights to privacy, bodily integrity and dignity<\/strong> (\u00a7\u00a7 215, 217).<\/p>\n\n\n\n

This fact, in addition to the compulsory but private nature of the arbitration<\/strong> at stake, along with the restrictions it imposed on the rights<\/strong> being invoked, lead the ECtHR to hold that Article 6 \u00a7 1 required the FSC to carry out a \u201cparticularly rigorous examination<\/strong>\u201d (\u00a7 216) and an in-depth review<\/strong> (\u00a7 238) of the civil-law appeal<\/strong> lodged with it by the applicant. Since the FSC failed to do so<\/strong> in respect of some key arguments<\/strong> of the applicant, even though the CAS itself had expressed serious concerns<\/strong> as regards some of the applicable DSD Regulations, the ECtHR concluded that before the SFC Ms Semenya had not benefitted from the safeguards<\/strong> provided by Article 6 \u00a7 1 (\u00a7 238).<\/p>\n\n\n\n

*              *              *<\/p>\n\n\n\n

What should be retained from this comparison?<\/p>\n\n\n\n

The Luxembourg approach is limited in scope<\/strong>, as it applies only when a) EU law applies<\/strong>, b) the dispute is linked to the pursuit of a sport as economic activity<\/strong>, and c) matters relating to EU public policy<\/strong> are at stake. But when that is so, it requires full respect <\/strong>of the right to an effective judicial review<\/strong>, regardless of the concrete issues. To this extent, the Luxembourg approach is more formal<\/strong> but at the same time more comprehensive<\/strong> and more conducive to legal certainty<\/strong>.<\/p>\n\n\n\n

By contrast, the Strasbourg approach is not limited in scope<\/strong> and more substantial<\/strong>, as it takes the importance and weight of the issues <\/strong>at stake before the CAS and the FSC as criterion and justification of the requisite intensity of the FSC\u2019s scrutiny<\/strong>. To this extent, it is more facts-based,<\/strong> more selective<\/strong> and less conducive to legal certainty<\/strong>. The focus is on the essential issues<\/strong> in each case, which may vary<\/strong> in light of the concrete circumstances.<\/p>\n\n\n\n

What does that mean for domestic judges? The good news is that while different, these two approaches seem compatible<\/strong> with each other. This is because, when applicable, the Luxembourg approach requiring full respect of the right to an effective judicial review would appear to represent a higher standard<\/strong> than the Strasbourg \u201cparticularly rigorous examination\u201d, the scope and intensity of which might moreover vary from case to case. Yet, it is well-known that the Strasbourg standard is only a minimum which may be raised<\/strong> (Art. 53 of the Convention).<\/p>\n\n\n\n

The bad news, on the other hand, is for the FSC who is being told by RFC Seraing <\/em>that however compliant with Article 6 \u00a7 1 of the Convention its review of CAS awards might be in the future, it cannot legally replace within the territory of the European Union a review by a court of a Member State authorised to make a reference to the CJEU for a preliminary ruling.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Within a single month, both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) – acting through their Grand Chambers – issued judgments regarding dispute resolution in professional sports. These cases focused on the roles played by the Court of Arbitration for Sport (CAS) and the Swiss […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,22,19],"tags":[],"class_list":["post-3397","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-european-court-of-human-rights","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3397","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=3397"}],"version-history":[{"count":3,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3397\/revisions"}],"predecessor-version":[{"id":3403,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3397\/revisions\/3403"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=3397"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=3397"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=3397"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}