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The Sports Lawyer: ‘There is precedent for civil courts overturning governing bodies – but tough to see Sion winning’

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THE SPORTS LAWYER is actually a posse of Britain’s brightest lawyers, from the Sport & Media team at the UK law firm, Thomas Eggar, who will be contributing features, analysis and insight on a regular basis on the key sports law issues of the day. In TSL’s latest column, Andrew Nixon discusses the FC Sion appeal against UEFA.

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By Andrew Nixon

1 November 2011

Swiss team FC Sion has been told that the Court of Arbitration for Sport (CAS) will hear its appeal against UEFA’s decision to replace the club in this year’s Europa Cup with Celtic on 24 November. UEFA reached its ruling because FC Sion fielded ineligible players in the play-off match with Celtic. The club’s appeal to UEFA was rejected.

FC Sion has however attempted to seek reinstatement not via CAS but via the Swiss Civil Court in the Canton of Vaud. The club holds the view the CAS is not sufficiently independent of UEFA to provide a ruling.

UEFA has made it clear that CAS is the only authority it will recognise and that CAS is the only body that has jurisdiction to provide a determination. The case is an interesting one as it raises again the concept of whether or not members of governing bodies should be allowed to bring sporting matters before civil courts, rather than before designated sporting arbitration tribunals.

Comment

There is a general acceptance that sport has the necessary expertise to self regulate – this is the concept of the specifity of sport and it encourages much debate.

Historically, the courts have been reluctant to overturn decisions of governing bodies for want of fair or rational decisions. There are many examples of this, particularly when it comes to the application of anti-doping regulations. In the Gasser and the Wilander and Novacek cases, despite not being entirely comfortable that anti-doping regulations were operated on the basis of strict liability, the courts accepted that sport should be entitled to create its own doping rules, used in application to protect the integrity of sport.

However, the law of the land is prepared to utilise its supervisory jurisdiction if deemed necessary, with restraint of trade, European Laws of Free Movement and competition law providing strong basis for private law challenges.

In the seminal case of Meca-Medina the Court of Justice overturned the European Commission’s decision to reject the attempts of two swimmers to challenge a doping ban handed down by Fédération Internationale de Natation (FINA) on the basis that anti doping rules are necessary for sport to protect its integrity. Although the court concluded that the doping ban was proportionate, it rejected the ‘sporting exception’ argument; stating that rules of GBs must be assessed in light of competition law and must be justified in the same way as any other body that governs an occupation.

So there is precedent for civil courts overturning governing body decisions; however, in this case it is difficult to see how a court would be prepared to intervene.

Firstly, UEFA has an independent disciplinary process and if the decision is not accepted the matter will be finally determined by CAS: the jurisdiction of CAS is a contractual obligation, built into the rules of the governing body and the rules of the competition.

Secondly, the speed at which the civil court process operates does not make it suitable for the majority of sporting matters, where decisions often need to be made quickly.

Thirdly, the rules on player legibility are fundamental for the fair running of the competition and ensuring that there is level playing field for all teams. That is perhaps the key point. The analysis of Meca-Medina is that although sports rules fell to be considered against EU free movement and competition laws those rules would survive that review if they were necessary for the organisation of the sport and pursued a legitimate aim, and protecting the sanctity of competition is a legitimate aim.

Whilst the actions of FC Sion raise an interesting point of debate, provided UEFA has correctly applied its own rules it is unlikely that the civil court from which the club is seeking a ruling will be prepared to intervene.

Andrew Nixon is an Associate in the Sport and Media Group at Thomas Eggar.

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