Abstract

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One of the least visible and yet potentially most consequential findings in the trio of decisions related to transnational sports governance rendered by the Grand Chamber of the Court of Justice of the European Union (CJEU) on 21 December 2023 concerns the Court of Arbitration for Sport (CAS). It is relatively easy to overlook, as it is tucked away in the much-less scrutinized International Skating Union (ISU) judgment of the Court. Yet, as will be argued at the end of this article, the CJEU’s conclusions regarding the bindingness of CAS arbitration are consequential and will limit the function of the CAS as a kind of safety valve for the Olympic Movement. First, the article traces how the CAS became part of the ISU case in the original decision of the European Commission (EC). Thereafter, I discuss why the General Court (GC), when reviewing the ISU decision, annulled the part dedicated to the CAS, as well as the position of Advocate General (AG) Rantos in his Opinion, which mostly endorsed the GC’s findings. This section is followed by a discussion of the main tenets of the ruling of the Grand Chamber. The final part provides a general assessment of the impact of the decision on the CAS and on the future of transnational sports governance.

Introduction

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One of the least visible and yet potentially most consequential findings in the trio of decisions related to transnational sports governance rendered by the Grand Chamber of the Court of Justice of the European Union (CJEU) on 21 December 2023 concerns the exclusive jurisdiction of the Court of Arbitration for Sport (CAS). It is relatively easy to overlook for untrained eyes, as it is tucked away in the much-less scrutinized International Skating Union (ISU) judgment of the Court. Unsurprisingly, therefore, it has until now triggered only a limited number of commentaries, mostly restricted to some blogs.

Yet, as I will argue at the end of this piece, this part of the judgment is consequential and will impact on the function of the CAS as a judicial safety valve for the Olympic Movement. First, I will retrace the place of the CAS in the original decision of the European Commission (EC). Second, I will discuss why the General Court (GC), when reviewing the ISU decision, annulled the part dedicated to the CAS. Third, I will briefly outline the position of Advocate General (AG) Rantos in his Opinion, which mostly endorsed the GC’s findings. Fourth, I will explain the main tenets of the ruling of the Grand Chamber reaching the conclusion that the GC had erred on this point. Finally, I will conclude with a general assessment of the impact of the decision on the CAS and the future of transnational sports governance.

The EC’s original challenge to the CAS arbitration clause included in the ISU rules

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It is the EC in its ISU decision that first challenged the impact of the role of the CAS by concluding that:

“the hurdles that the Appeals Arbitration rules impose on athletes in obtaining effective judicial protection against potentially anti-competitive ineligibility decisions of the ISU reinforce the restriction of their commercial freedom and the foreclosure of ISU’s potential competitors as set out in Sect. 8.3 and 8.4, since those rules protect potentially anti-competitive decisions of the ISU Council issued under the Eligibility rules by curtailing the reach of EU/EEA competition law to those decisions.”

More specifically, the EC expressed specific doubts regarding the capacity of the CAS to properly interpret and apply EU competition law in cases put before it. These worries were compounded by the fact that, “in case of doubts about the interpretation of Union competition rules, neither the CAS nor the Swiss Federal Tribunal can make a preliminary reference to the Court of Justice.” Furthermore, for the EC, these wants cannot be counterbalanced by the fact that CAS awards could potentially be challenged ex post before the national courts of the Member States. Indeed, international sports governing bodies (SGBs) have the capacity to enforce CAS awards through their members via the exercise of their private powers. Hence, they do not require the recognition of the award by national courts, which makes it extremely costly and arduous to resist the implementation of CAS awards. In the words of the EC, “it is precisely the practical hurdles involved in such actions that may discourage athletes from seeking judicial redress against anti-competitive ineligibility decisions.” Similarly, the fact that one could potentially submit a competition law complaint to a NCA or the EC is also deemed insufficient to guarantee access to justice, as “they have limited resources and cannot prioritise all complaints.”

Ultimately, the EC concluded that “in combination with the Eligibility rules, the Appeals Arbitration rules [of ISU] reinforce the restriction of their commercial freedom and the foreclosure of ISU’s potential competitors” and required that they be amended, but without providing specific guidelines on what those changes should look like.

The General Court’s downplaying of the impact of the CAS on the effectiveness of EU law

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When the ISU decided to challenge the decision of the EC before the GC, it specifically targeted its reasoning on the CAS arbitration clause in its sixth plea.^Footnote11 Arguing that “the Commission wrongly concluded that the arbitration rules made effective judicial protection against a potentially anticompetitive decision of the applicant more difficult” and that “that section is not relevant in so far as the Commission does not consider that recourse to the CAS arbitration procedure constitutes an infringement of Article 101 TFEU.”^Footnote12

In its assessment, the GC referred to the Mutu and Pechstein v. Switzerland^Footnote13 judgment of the ECtHR to support the view that “the binding nature of arbitration and the fact that the arbitration rules confer exclusive jurisdiction on the CAS to hear disputes relating to decisions on ineligibility made by the applicant may be justified by legitimate interests linked to the specific nature of the sport.”^Footnote14 Further, it stressed that the ECtHR had recognized that it is “clearly in the interest of disputes arising in the context of professional sport, in particular those involving an international dimension, that they could be submitted to a specialised court which is capable of adjudicating quickly and economically.”^Footnote15

Turning to the specifics of the case, the GC emphasized that “while it is true that the arbitration rules do not permit skaters to bring an action before a national court for annulment of an ineligibility decision which infringes Article 101(1) TFEU, the fact remains that skaters may bring, if they so wish […] an action for damages before a national court.”^Footnote16 In such cases, a “national court is not bound by the CAS’s assessment of the compatibility of the ineligibility decision or the refusal of authorisation with EU competition law and, where appropriate, may submit a request for a preliminary ruling to the Court of Justice under Article 267 TFEU.” ^Footnote17 Additionally, the GC also pointed out that “skaters and third-party organisers who have been the subject of an ineligibility decision or a refusal to grant authorisation contrary to Article 101(1) TFEU may also lodge a complaint with a national competition authority or the Commission, as the complainants have done in the present case.”^Footnote18 Any decision of these authorities could in turn land before EU courts in the context of an action for annulment or a preliminary reference. In short, the judges considered that there are sufficient avenues available for athletes to challenge ex post a CAS award (and the underlying decision of an international SGB) on the basis of its incompatibility with EU competition law.

Accordingly, the ruling concluded that the “use of the CAS arbitration system is not such as to compromise the full effectiveness of EU competition law.” ^Footnote19 This lead the GC to insist that “the fact that the arbitration rules conferred on the CAS exclusive jurisdiction to review the legality of ineligibility decisions and that the arbitration in the present case is binding do not constitute unlawful circumstances which make the infringement found in the present case more harmful, as the circumstances listed within the meaning of point 28 of the 2006 Guidelines do”^Footnote20 and to annul the EC decision on this point.^Footnote21

The Opinion of Advocate General Rantos: an embrace of the need for the CAS

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The CJEU’s Grand Chamber distrust in CAS and the Swiss Federal Supreme Court

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Transnational sports governance after binding CAS arbitration

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Conclusion

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