Landmark decisions by the Court of Justice of the European Union will reshape transnational sports governance

Published 21 December 2023

@Court of Justice of the European Union

Three landmark decisions in the International Skating Union (ISU), the European Super League (ESL), and Royal Antwerp cases by the Court of Justice of the European Union (CJEU) redefine the relationship between EU law and sports in the most important intervention of the Court in the sport sector since its Bosman ruling in 1995. The Asser Institute had a specific involvement in this important day, as Antoine Duval, head of the Asser Institute’s Sport Law Centre, and former colleague Ben Van Rompuy (now at Leiden University) were at the origin of today’s decision of the Grand Chamber of the CJEU in the ISU case.

Duval and Van Rompuy drafted the original complaint submitted to the European Commission (EC) by two Dutch speed-skaters, Mark Tuitert and Niels Kerstholt, against the International Skating Union (ISU), which led to the first decision of the European Commission finding that an international sports governing body had violated EU competition rules. After ISU appealed the decision, the case led to a ruling by the Fourth Chamber of the General Court that confirmed the EC’s decision.

Antoine Duval and Ben Van Rompuy at the Grand Chamber of the Court of Justice of the European Union

Far-reaching implications for Court of Arbitration for Sport (CAS)
In the complaint and during their exchanges with the EC (and afterwards in the cross-appeal), Duval and Van Rompuy challenged the mandatory CAS arbitration clause in particular. The CJEU decision affirmed their argument that the CAS is not a suitable venue to ensure an effective access to remedy for claimants in cases involving EU competition law. As the CAS is the linchpin of the current structure of transnational sports law, the implications of this ruling could have an impact beyond the context of ISU.

‘The specific implications are difficult to identify at this point, but it could potentially force the CAS to re-locate to an EU Member State, or lead national courts to disregard CAS arbitration clauses when EU law is invoked to challenge decisions of international SGBs,’ says Duval.

The three rulings will reshape transnational sports governance
The ISU case was not the only one decided today, as the Grand Chamber also rendered its decisions in the European Super League (ESL) and the Royal Antwerp case. The ESL ruling received a lot of attention, as it challenged UEFA’s grip over club competitions in Europe. However, Duval stressed that ‘while the decision seems to side with the promoters of the ESL, in reality it is much more nuanced than is made to believe in the press release of the Court. In fact, the court recognises that UEFA and FIFA could seek to protect merit-based competitions, as well as financial redistribution, through a transparent, objective and non-discriminatory authorisation system.’

The future of sport
More EU competition law challenges against international SGBs are still pending at the CJEU, such as the disputes over the FIFA’s regulation of agents (C-209/23: RCC Sport vs FIFA and C-428/23: ROGON and others vs Deutscher Fußballbund). In the years ahead, the Asser Institute will remain at the forefront of cutting-edge research and education at the intersection of EU (competition) law and the transnational regulation of sport. Our involvement in the ISU case demonstrated how the Institute’s researchers combined academic excellence and societal impact in pushing the European institutions to ensure that the transnational authority of SGBs is not without checks and balances.

Webinar: Court (CJEU) judgements in the European Super League, ISU & Royal Antwerp cases

Given the importance of these cases to the sports industry LawInSport, the Asser Institute and the Association for the Study of Sport and the EU (Sport & EU) hosted this webinar analysing the Court (CJEU) judgements in the European Super League, ISU & Royal Antwerp cases.

Read more
Antoine Duval analyses what is at stake in the ISU and ESL cases facing the CJEU in 'Playing the final in Luxembourg: The Court of Justice and the future of transnational sports governancepublished in the Maastricht Journal of European and Comparative Law.

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Dr Antoine Duval LL.M.