UEFA recently implemented significant changes to the Authorization Rules governing International Club Competitions. One of the changes in the regulation has to do with sports arbitration under UEFA, particularly with the introduction of Dublin, in Ireland, as an alternative venue for an arbitration, complementing Lausanne, Switzerland, which is the official headquarters of the CAS.

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UEFA Circular 33/2024, paradigm shift?

From the perspective of international arbitration

The selection of the venue is one of the most relevant decisions when negotiating and agreeing on an arbitration agreement. The seat determines the law applicable to the arbitral proceeding, the relationship of the arbitral tribunal with the courts for judicial assistance and control during the arbitral process, and most importantly, determines the process related to the annulment of the arbitral award.[1]

When comparing the approach to arbitration in Ireland and Switzerland, differences arise that can be critical to resolving a dispute. Switzerland has a reputation as one of the preferred venues for international arbitration as its arbitration law offers a flexible legal framework and shares fundamental similarities with the Model Law. Ireland, for its part, reformed its arbitration law in 2010, adopting the 2006 Model Law, with a few changes and additions to the rule, in order to make Ireland much more attractive as an arbitral seat.

However, it is necessary to highlight some elements of arbitration in Ireland relevant when it comes to this being a seat of CAS in sports arbitration disputes.

First, it has to do with the applicable law in the arbitration. In the absence of an agreement between the parties, the court in Ireland must apply the relevant substantive law based on the conflict of laws rules it deems applicable. In Switzerland, the Court will decide in accordance with the legal rules with which the case has the closest connection.

Secondly, it concerns public policy. Public policy is a limit to arbitral proceedings, in Switzerland the courts have decided that "there is a breach of public policy when the recognition or enforcement of a foreign award intolerably offends Swiss concepts of justice."[2] This makes it particularly difficult to invoke Swiss public policy as a basis for the annulment of an arbitral award, however, in Ireland, the assessment of the violation of public policy must include all European Union regulations.

Thirdly, it has to do with the action for annulment of the arbitral award. Ireland's arbitration law sets a strict term for when annullability must be filed in the country's courts. Article 12 provides that "Notwithstanding the provisions of Article 34(3), an application to the High Court to set aside an award on the ground that such award is in conflict with the public policy of the State shall be made within 56 days from the date on which the circumstances giving rise to the application became known or reasonably ought to have known to the party interested." This time limit is significantly stricter than that established by the Model Law, and which applies to the other grounds for annulment of an arbitral award, namely: "... [A]n application for annulment may not be made after three months have elapsed from the date on which the party making the application has received the award or, ...". However, these terms are even less stringent if the seat is Switzerland, since the Swiss Federal Law on Private International Law (LDIP), specifically in Article 190, which sets out the grounds on which an arbitral award can be challenged before the Swiss Federal Court and which must be filed within 30 days of notification of the award. Therefore, the selection of the seat has a relevance in terms of the right to seek review or annulment of an award within the context of annulment, since the term may become more beneficial if it is Ireland or Switzerland.

From the perspective of sports law

Sports regulation is not alien to international regulations, but it has its own guiding principles. The Jurisdiction of the CAS is based on the recognition that the court itself has since the International Olympic Committee, which in 1984 created it with the intention of becoming a Supreme Court of Sport, to bring together and unify a sports regulation as varied as federations and countries exist under the umbrella of the Olympic movement.

Thus, one by one, the federations have been adopting in their statutes a submission to the jurisdiction of the CAS as the court of last resort to decide their controversies, whether related to internal disciplinary matters or disputes between member organizations.

The CAS Code states that in order to obtain jurisdiction over a dispute, the parties must either voluntarily submit to CAS through a contractual clause (ordinary procedures) or through the statutes of the relevant federation, which must recognize its jurisdiction (appeal procedures). In the case of UEFA, we are faced with the second case.

UEFA's statutes establish in its articles 7bis and 59 the obligation of UEFA members to comply with the awards issued by the CAS and the recognition of the jurisdiction of the CAS. Article 64 of the statutes establishes that the legal forum shall be Lausanne when the case under the statutes is submitted to the jurisdiction of the CAS. This submission to CAS is repeated in other UEFA codes such as the Disciplinary Code.

For its part, the CAS establishes in its article S12 that the jurisdiction of the CAS reaches disputes between parties that voluntarily submit through contractual clauses, disputes relating to anti-doping procedures, voluntary mediation processes and appeal processes where the federations or sports entities have established the CAS as the body to resolve them.

Article S1 establishes that the seat of arbitration is Lausanne, and Article R28 establishes that the seat of each Arbitral Tribunal will be Lausanne, regardless of whether the hearing may be held elsewhere.

The CAS code, honoring the concept of arbitration, allows the parties a lot of flexibility when establishing the rules of the conflict, including the possibility of choosing the law applicable to the merits of the matter (R45 and R58), the language (R29), where the hearing will be held, etc., however, one freedom that it does not grant is the modification of the seat of arbitration.

The absence of this possibility, in theory, prevents UEFA from unilaterally modifying something as important as the law to which an Arbitral Tribunal is subject, due to the consequences that this implies, and that beyond the doctrine on the seat of arbitration that we have explained above, would oblige the CAS, in the specific case,  to have in-house lawyers specializing in Irish law to conduct proceedings in accordance with the law to avoid claims before the ordinary courts.

It seems clear that the modification is forced by the latest decisions of the European authorities, in particular the decisions issued by the Court of Justice of the European Union on December 21, 2023, regarding (1)European Super league Company, SL v FIFA and UEFA (Case C-333/21);(2)UL and SA Royal Antwerp Football Club v Royal Belgian Union of Football Societies Association ASBL (Case C-680/21) and (3)International Skating Union (ISU) v. European Commission – Case C-124/21. And in which the CJEU was very critical of the obligation to submit disputes to arbitration in a venue outside the EU, where the decisions of the Arbitral Tribunal affected spheres of the public sphere in a manner contrary to union law, and that submission to Swiss law prevented access to the review of awards under the prism of European public law.

The UEFA Circular only modifies the venue for cases of appeals against decisions issued within the framework of the regulations of the rules for Authorizations relating to international club competitions held in the territory of UEFA, which is even more striking considering that the UEFA Statutes also do not allow the deviation of the jurisdiction of the CAS in their wording. In this sense, the doctrine of the normative hierarchy prevents the modification of a rule of a statutory nature through a rule of lower rank, which would invalidate the modification established in this regulation.

It remains to be seen what UEFA intends with this modification, perhaps to explore the possibility of triggering a broader reform of CAS, but in the opinion of the authors, today, the scenario that UEFA has created is more of a problem than a solution.