Arbitrato e lex sportiva: la giurisdizione del TAS come rafforzamento di una violazione del diritto della concorrenza dell’Unione europea

The article analyzes the complexities deriving from the International Skating Union judgment issued by the Court of Justice at the end of a long judicial saga. According to the Court, the exclusive jurisdiction of CAS on sports-related disputes reinforces a violation of EU competition law, as a CAS award could be challenged only before a non-Member State judge, who is not obliged to apply EU public policy and is not allowed to make a preliminary reference to the Court of Justice. In doing so, the decision marks a new step against arbitration, this time when seated in a non-Member State; however, the distinctive features of lex sportiva might justify the Court’s approach and the need to provide athletes and clubs with an effective judicial review against decisions taken by sports governing bodies, as Member-State judges cannot give a “second look” to sports awards, which do not require exequatur proceedings. The direction taken by the Court is partially in line with Eco Swiss, Achmea and an extensive interpretation of Ingmar. As to the practical effects of the decision, the concept of “reinforcement” is elusive and shadows the possible consequences stemming from the judgment. Whilst the exclusive arbitration clause in favor of Lausanne-seated CAS seems to realize a procedural violation of EU law and obliges the ISU to change its arbitration rules, it seems difficult to conclude that the judgment determines the invalidity tout court of CAS arbitration clauses. However, the judgment represents the clear sign of a future disruptive interference between the need for an effective judicial review, and the autonomous nature of lex sportiva, leading to a radical change in sports arbitration.