In January 2015, the Belgian football club Seraing signed an agreement with the investment Fund Doyen Sports to transfer to the Fund part of the economic rights to three players for 300,000 euros.
Doyen Sports received the right to 30% of the transfer amount for the future sale of each of the players.
Previously, in December 2014, FIFA banned the transfer (Third party ownership - TRO) of economic rights to players by article 18ter RSTP (FIFA Regulations on the Status and Transfers of Players). After the introduction of this rule, all agreements concluded for the transfer of such rights were illegal.
In September 2015, for violating the ban, FIFA imposed sanctions on the Seraing club in the form of a fine of 136,000 euros and a ban on registering new players for 4 transfer windows.
Seraing appealed to CAS to appeal the decision made by FIFA.
In a decision of 9 March 2017 (CAS 2016/A/4490, RFC Seraing V. FIFA), CAS agreed with the decision taken by FIFA, but the club's sanction of banning the registration of new players was reduced to 3 transfer windows, as this was the first such case of violation of the TPO.
The Belgian club tried to appeal the CAS decision to the Swiss Federal Court, but the complaint was rejected.
In parallel, Seraing challenged the validity of the arbitration clause contained in the FIFA Charter through the system of Belgian state courts.
The position of Seraing (Doyen) was that Belgian law, as well as the new York Convention of 1958, required that an arbitration clause contain a "reference to the legal relationship", that is, it would provide for a potential range of disputes that could arise between the parties.
The FIFA Charter provides for the following clause:
FIFA recognizes the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, intermediaries and licensed match agents.
The clause in the FIFA Charter is too broad and cannot be applied to any disputes, regardless of their subject matter. Consequently, in the applicants ' view, such a reservation is not in accordance with Belgian law.
The Belgian court of appeal, in its decision of 29.08.2018 (2016/AR/2048), said that the obligation of clubs to refer disputes to CAS is contrary to Belgian law, since it does not contain "an indication of a legal relationship". The need to" indicate a legal relationship " is important to prevent any disputes between the parties from being referred to arbitration, even when the parties did not intend to arbitrate the disputes. "Indication of the legal relationship" is a necessary condition for maintaining the balance of interests of the parties. That is, the stronger party should not impose its will (and the choice of the judicial body) on the weaker party. The clause contained in the FIFA Charter is too broadly worded, it does not clearly indicate which disputes it applies to, and therefore it is invalid.
Source: presentation "Court of Arbitration for Sport in Lausanne (CAS)" by Pryakhina M. Y. in the framework of the discipline "Dispute resolution system in sport" of the SPbSU master's program “Lawyer in sports law”