On August 31, 2018, on the occasion of the case regarding TPO filed by Doyen, Seraing e.a. versus FIFA, UEFA, Belgian FA and FIFPro, the Brussels’ Court of Appeal (“Court”) has decided that the arbitration clause establishing the competence of the Court of Arbitration for Sport (“CAS”) set forth in the articles of association of both FIFA and UEFA is not valid under Belgian law and, hence, cannot prevent Belgian state courts to be competent in disputes between, on the one hand, clubs and, on the other hand, FIFA and UEFA.
FIFA and UEFA have reserved the exclusive competence of CAS to decide on every type of dispute, regardless of the object, and have prohibited any recourse to state courts. The Belgian law on arbitration, however, provides that an arbitration agreement must refer to a defined legal relationship. The Court has considered that the generality of FIFA’s and UEFA’s arbitration clause fails to establish a defined legal relationship, and, hence, is not valid under Belgian law. Consequently, FIFA and UEFA cannot impose the jurisdiction of CAS to Seraing and Doyen and, hence, the Court is competent to decide on the case.
The most interesting part of the Court’s decision pertains to its possible scope: is this strictly limited to Belgium? Maybe not: the Court stated that the Belgian law on arbitration is based on two international conventions, being the European Convention providing a Uniform law on Arbitration and on the New York Convention on the recognition and Enforcement of Foreign Arbitral Awards, that also refer to the same concept of “defined” legal relationship.
Hence, in any other country where the law on arbitration is also based on those two conventions, state courts could decide to follow the reasoning of the Court and by setting aside the arbitration clause establishing the competence of CAS set forth in the articles of association of both FIFA and UEFA and accepting their own jurisdiction. Evidently, this would significantly jeopardize CAS’ competence in football matters.