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The practice of sanctions

A final practical point about EU law’s relatively eager tendency to disrespect the contractual sanctity of arbitral proceedings, including those conducted by the CAS, may be added. It was explained earlier that some governing bodies in sport supplement the contractual network which ties participants into the dispute resolution system foreseen by the lex sportiva and which excludes recourse to the ordinary courts by providing for the imposition of sanctions in the event that this channelling is disregarded. So, in principle, a national association which allows its disputes to leak into the domain of the ordinary courts—through its own action or by failing to assert a grip on a club within its jurisdiction which pursues such action—could find its team(s) suspended from participation in international competitions.

The threat is usually enough: there is no need for execution. Practice is in any event erratic, not to say chaotic. It was revealed in 2014, and confirmed by detailed production of documents in 2015, that the Irish FA’s threat to take legal action against FIFA as a result of a refereeing error at a crucial moment in a World Cup qualifying match against France in 2009 had resulted in a payment by FIFA to the Irish FA of some ?5 million.[1] [2] It is scarcely feasible that the action would even have been heard by a court given the commitment to arbitration made by the Irish FA within the lex sportiva, let alone that it might enjoy the slightest chance of success (in the absence of any suggestion of fraud), and it reveals much about FIFA’s puzzling system of governance under Sepp Blatter that payment was made in preference to relying on the Irish FA’s contractual obligation not to pursue such litigation. In other circumstances, however, governing bodies have been more aggressive in defence of contractually agreed commitment to the autonomy of arbitration and, through that, to the preservation of a lex sportiva unfragmented by local jurisdictional variations. For example, in 2011 the Swiss football federation, itself under pressure from UEFA, imposed sanctions on one of its members, FC Sion, in consequence of Sion having taken an objection to its treatment by UEFA to the ordinary Swiss courts. Sion reluctantly terminated the litigation.102 Even if a litigant were more stubborn it is easy to imagine that a national judge aware of a possible consequence, such as expulsion of the national team from UEFA and FIFA competitions, would be wary in assessing his or her jurisdiction to hear a case in which it is argued that jurisdiction lies exclusively within the lex sportiva.

None of this applies to the EU. It does not trouble the Court or the Commission. The EU’s team cannot be excluded from the World Cup. There is no EU team.

Conclusion—the limits of the contractual solution as a means to protect sporting autonomy

In conclusion, there is plainly a great deal more to EU sports law than the CAS alone. Cases reach the ordinary courts notwithstanding the arrangements made to place a priority on internal dispute settlement. Some sports-related litigation simply does not fall within the scope of the CAS’s jurisdiction and/or it does not involve parties that are within the contractual network which privileges and protects arbitration.

So sports bodies must move beyond their first strategy of requiring participants to contract in to the lex sportiva and to agree not to solve sporting disputes before

‘ordinary’ courts. The second strategy for maximizing sporting autonomy is the legislative solution.

  • [1] FAI Statement 05/06/15 accessed29 November 2016.
  • [2] See McArdle (n 46) 27. Sion had no success before the CAS: CAS 2011/O/2574 UEFA vFC Sion.
 
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