Tamara Capeta, an Advocate General for the European Court of Justice, wrote an advisory arguing that the Court of Arbitration for Sport (CAS) should not be the final word on sports law in EU countries. Instead, Capeta argues, the EU Courts should get the final word.
Since its creation in 1984, CAS has served as the sole conflict resolution entity between athletes or organizations and their sport’s governing bodies. In swimming, this means that conflicts with World Aquatics or the IOC must be resolved through the CAS. Many of the swimming world’s most controversial decisions get sent to the CAS, including World Aquatics’ restrictions on Lia Thomas and the IOC’s suspension of Russia.
It’s worth noting that in very rare cases, however, CAS cases are appealed to the Swiss Supreme Court, such as Sun Yang’s 2021 doping ban. Switzerland does not belong to the European Court of Justice as it’s not an EU country.
In Capeta’s non-binding advisory, however, she argues that the European Court system should have the final say-so when EU citizens or companies file complaints against governing bodies. She expresses concerns about CAS arbitration potentially denying EU citizens or companies their rights.
[W]hen a FIFA rule, or a decision based on such a rule, potentially infringes the right of an individual based on EU law, the constitutional system of the European Union bestows on that individual the right to effective judicial protection …
The advisory refers to FIFA because of the case that first brought this issue to the forefront. RFC Seraing, a Belgian football club, sought to bring a case against FIFA as well as the Belgian and European football governing bodies over player contracts. As of now, issues with FIFA can only be resolved under the CAS. RFC Seraing filed a complaint that this leaves them vulnerable to not being granted their EU rights, as a CAS decision doesn’t necessarily have to comply with EU or national law. According to The Sports Examiner, the sport with the most cases sent to CAS.
Capeta is one of eleven elected Advocate Generals on the European Court of Justice. Advocate Generals offer legal advice and opinions to the court, but they do not partake in the decision-making processes.
That last thing sport needs is the hand of judges picked by European bureaucrats hovering over it.