RFC Seraing v. FIFA and the Problem with Forced Sports Arbitration in England

Much has been written about the important recent decision of the CJEU in Case C‑600/23 RFC Seraing SA v. FIFA (1 August 2025) (ECLI:EU:C:2025:617), but naturally from the perspective of the law of the European Union that the Court applied. The Court made further inroads into the insulation of sports arbitration, and bodies like the Court of Arbitration for Sport in Switzerland (‘CAS’) from judicial review by the courts. This article considers the impact of the case, if any, on sports arbitration in England.

In RFC Seraing, following and expanding upon other recent cases, both of the European Court of Human Rights (ECtHR, 2 October 2018, Mutu and Pechstein v. Switzerland, (Applications nos. 40575/10 and 67474/10), and the CJEU (International Skating Union v Commission, C‑124/21 P) the Court recognised the special “forced” nature of sports arbitration: the agreement to arbitrate is essentially imposed by the sports association on the individual beforehand (paras 92, 93 and 96 of the decision). That included the FIFA arbitration clause before the Court that provided for an exclusive appeal to the CAS.

The Court found the “forced” nature of sports arbitration requires effective judicial review of arbitral awards affecting individuals’ fundamental rights (para 98). In particular it required: (i) the ability to review an arbitral award to ensure consistency with EU public policy (para 100); (ii) that such review must be comprehensive and not light touch where fundamental principles of EU policy arise – such as competition law and free movement rights (para 101); (iii) the court must offer effective remedies, such as in damages (paras 102-103); and (iv) interim injunctive relief (para 105).

In short, final arbitral awards of bodies such as the CAS must be reviewable by national courts with what one might describe as an enhanced level of review where fundamental EU rights arise. All very welcome in my respectful opinion.

But how does this affect judicial review of sports arbitral awards in England? Since Brexit, disputes arising in England, unless they contain a European element which goes through an EU national court, cannot go to the CJEU. The ability to review national sports arbitral awards is governed by English law.

English law is behind European law in this respect. Not only do most sports arbitral agreements in England preclude the type of enhanced judicial review of awards the CJEU now requires, there is, in most cases, no right to judicial review on a point of law at all. Section 69 of the Arbitration Act 1996, which permits a party to an arbitration agreement to appeal to the national court on a point of law, not only imposes a high standard of review (the decision of the tribunal must be “obviously wrong” or “the question is one of general public importance and the decision of the tribunal is at least open to serious doubt”) but also the parties may agree to exclude the right to appeal to the court from the arbitration agreement.

Sports associations in England routinely require the exclusion of judicial review on a point of law in their rules. In professional football in England, for example, each of the main governing bodies exclude the right to appeal to the court on a point of law - see Rule X.38 of the English Premier League Rules (2025/26), Regulations 91.6 and 104.2 of the EFL Regulations (2024/25), and Rule K1.5 of The FA Rules (2024/25).

Imagine a football player has been banned for life by a decision of The FA for some disciplinary breach, or a football club has had a points deduction that materially affected it for breach of financial rules. The final decision of the football body would not be reviewable on a point of law by any court in England – a position that is in stark contrast with the situation in Europe now, following Pechstein and RFC Seraing in particular, where not only would the decision be reviewable but, where fundamental rights such as the right to work, or competition law issues arose, those decisions would be subject to enhanced review. The recent decision of the Grand Chamber of the ECtHR in Semenya v Switzerland (Application no. 10934/21) seems to reinforce this requirement for a particularly high standard of review where fundamental rights are involved (see the summary here).

In the author’s respectful opinion, there is no justification for this distinction. Sports participants in England ought to have the same rights to access to justice as those in Europe. Given the non-applicability of European law since Brexit, this means that (absent some unlikely legislative intervention) the English common law ought to adapt, in the way it has so often done, to recognise the reality of forced sports arbitration.

As various European courts have now found, sports arbitration agreements are unlike standard commercial arbitration agreements where parties freely choose to have their disputes determined outside of the courts. If you are a football player, and wish to play professional football in England, you have no choice but to accept The FA Rules, including the requirement to arbitrate and the exclusion of your right to appeal to the courts on a point of law. You either accept that rule, or you cannot be a registered player and play football. If you are a club promoted from the Championship to the Premier League you cannot say, “we are happy to compete in the Premier League, but we don’t accept your arbitration rule.” You either take it or leave it. In the real world this is forced arbitration, and as such the idea that a party has freely waived their rights to access to the courts is a fiction.

In two relatively recent sports arbitration cases the English courts have touched on these questions, but have thus far followed the conventional approach, not recognising the special forced nature of sports arbitration.

The first is Newcastle United Football Company Limited v The Football Association Premier League Limited [2021] EWHC 349 (Comm). In that case, my client applied to have proceedings that involved a challenge to an arbitrator heard in public. HHJ Pelling rejected the application, finding that the underlying dispute between the parties - which involved allegations of breaches of rules and taking into account irrelevant considerations to prevent a club take over - was “from beginning to end a private dispute between private parties in relation to private contractual arrangements, powers and duties and is not and never has been a public law dispute … It is simply incorrect to suggest that PLL performs a regulatory function in any public law sense. Its relationships with its members are entirely contractual.” (para 24).

The second is Manchester City Football Club Limited v The Football Association Premier League Limited [2021] EWHC 628, where Moulder J. went further, rejecting the Club’s reliance on the decision in Pechstein for the argument that it had no effective choice but to accept the arbitration rules because in order to play at the top level of football it had to accept all the PL Rules. The judge found (at para 149) that since 2001 the Club had signed up to the PL Rules and has been able to participate as a shareholder in the amendment or annual reapproval of those Rules, such that “there was a voluntary, informed and unequivocal election by the Club to the disciplinary and dispute process” (para 150).

Perhaps it shall take a case on stronger, more obvious facts, such as a player who cannot in any real sense be said to have a choice whether to agree to or vary an arbitration clause, or perhaps it will take a more serious engagement with the basis for the developments we have seen on a European level, but I expect it is inevitable that we shall soon see that the blanket exemption from proper legal review that sports associations in England have been so keen to cling on to shall be seriously challenged.