Yash Pathak & Hussain Hashmi

Abstract: This article argues that CAS’ jurisdiction remains fundamentally contractual, while the exercise of its authority remains constrained by mandatory public law. Examining recent Swiss and European Union jurisprudence, it demonstrates how public law limits lex sportiva’s reach. Rather than signaling decline of sporting autonomy, these developments locate CAS within the constitutional boundaries of supranational legal orders.

INTRODUCTION

On 27 May 2026, the Attorney General of New York and New Jersey subpoenaed FIFA. The investigation targets Fédération Internationale de Football Association’s (“FIFA”) “dynamic pricing” model for the 2026 World Cup, under which ticket prices allegedly increased by an average of 34% across more than ninety matches between October 2025 and April 2026 ,while some supporters were reassigned to seating categories different from those they had purchased. California’s Attorney General sent a parallel information request weeks earlier. None of this required FIFA’s cooperation as a matter of contractual grace, as it proceeded under each state’s own consumer protection statute, and FIFA’s arbitration clause had nothing to say about it.

The juxtaposition is striking. On paper, FIFA is one of the most arbitration-oriented organisations in world sports. Statutes channel almost every dispute involving clubs, players, and member associations to the Court of Arbitration for Sport [“CAS”] in Lausanne. Yet, the two regulators best positioned to discipline FIFA’s ticketing conduct never went near CAS because neither had ever agreed to. The immediate question, therefore,  is  not simply why these investigations are proceeding before public authorities rather than CAS. The investigations expose a broader question: What are the jurisdictional limits of CAS despite its position as the “Supreme Court of World Sports”?

This article argues that the answer lies in the contractual foundations of arbitration, and constitutional limits imposed by mandatory public law. Part II examines the institutional architecture that has made CAS the dominant forum for international sports disputes. Part III demonstrates that arbitration remains rooted in party consent by analysing CAS’s  recent jurisprudence on jurisdiction. Part IV then turns to public law limits of sport arbitration through consumer protection, competition law, human rights, and criminal law. Part V considers whether these developments undermine the idea of lex sportiva as an autonomous transnational legal order, while Part VI engages with principal arguments advanced in defence of sporting autonomy before the conclusion reflects on what this emerging trend means for the future of CAS.

CAS & THE ARCHITECTURE OF LEX SPORTIVA

CAS’s dominance is engineered, not accidental. Established in 1983 as a specialised forum to secure uniformity, expertise, and speed in the resolution of international sports disputes, it has grown into the centerpiece of modern sports arbitration. FIFA’s Statutes require federations, clubs and players to submit a wide range of disputes to CAS. The Code of Sports-related Arbitration channels appeals from internal tribunals of sporting bodies to its Appeals Arbitration Division. CAS awards are seated in Lausanne, where they are subject only to the limited review available under Article 190 of the Swiss Private International Law Act (“PILA”), and the New York Convention (“NYC”), which gives those awards near global enforceability.

Therefore, it is  unsurprising that the European Court of Human Rights (“ECtHR”) described CAS as the “supreme judicial authority for world sports” in Mutu and Pechstein v. Switzerland (Mutu, ¶ 109). The ECtHR went a step further by recognising that for many elite athletes, recourse to CAS constitutes compulsory arbitration rather than a matter of genuine contractual choice, as participating in organised sports frequently depends upon accepting its jurisdiction (Mutu, ¶ 149). As the CAS itself recognised in Guillermo Cañas v. ATP Tour (CAS 2005/A/951), its appellate jurisdiction exists only “insofar as the statutes or regulators of the said body so provide or as the parties have concluded a specific arbitration agreement” (Cañas, Revised Award,  ¶ 6.1).

Unlike constitutional or public courts, CAS exercises no inherent judicial authority. Its reach may be global, but its jurisdictional authority remains contractual. The distinction is more than conceptual. The coming sections of the article demonstrate the limits of what CAS can actually decide and whom it can validly bind.

CONSENT AS THE JURISDICTION: CAS’s “OWN” ADMISSIONS

Arbitration derives its authority from an arbitration agreement rather than sovereign power, although, in organised sport, that agreement does not always reflect freely exercised consent. An arbitral tribunal may determine the scope of its own jurisdiction through Kompetenz-Kompetenz, and the arbitration agreement remains autonomous under the doctrine of separability. However, neither creates jurisdiction where no agreement exists. The irony is that CAS reached this conclusion first. In AEK Athens and SK Slavia Prague v. UEFA (CAS 98/200), the CAS accepted that a Swiss-seated tribunal may give effect to foreign overriding mandatory rules when they are closely connected to the dispute and safeguard fundamental public interests (AEK Athens, ¶¶ 10-11). The public law opening did not begin with Seraing. The CJEU merely walked through a door that CAS had left open for decades. AEK Athens matters here not because it concerns CAS’s jurisdictional basis, but because it shows that even an established arbitral mandate operates within constraints imposed by mandatory law.

In A v. FC B (SFT 4A_64/2025), a Hungarian player terminated his employment contract and brought proceedings before the FIFA Dispute Resolution Chamber, which assumed jurisdiction under Article 22 of FIFA Regulations on the Status and Transfer of Players (“RSTP”). On appeal, however, CAS declined jurisdiction, holding that clause 49 of the contract assigned labour disputes exclusively to the Hungarian Administrative and Labour Court. As an appellate body, CAS could not exercise powers beyond jurisdiction available at first instance. Upholding that approach, the Swiss Federal Tribunal (“SFT”) confirmed that Article 22(1)(b) of RSTP is not absolute or exclusive, but remains subject to parties’ contractual choice of forum, including state courts. The tribunal reached the same conclusion in FC A v. B (SFT 4A_92/2025),  affirming the exclusive jurisdiction of Hungarian Labour courts in an international football dispute. Together, these decisions do not establish the same proposition. A v. FC B and FC A v. B address whether CAS possesses jurisdiction in the light of the forum chosen by the parties, whereas AEK Athens concerns the constraints that mandatory law may impose on the exercise and the legal effect of arbitral authority even where jurisdiction exists. Therefore, their common premise is  narrower. CAS possesses no sovereign jurisdiction of its own. Its authority derives from agreement, and legal orders remain governing that agreement which determines both the scope of the authority conferred and  the limits on its exercise.

THE PUBLIC LAW BOUNDARY

I. Consumer Protection

The FIFA ticketing investigations are the clearest illustration available today. The claims under scrutiny of misrepresentation of seating categories and pricing conduct that may mislead consumers arise under state consumer protection statutes. No consumer signed a CAS arbitration agreement, and none needed to. Article II(1) of NYC applies where “parties undertake to submit to arbitration” their disputes, while Article II(3) requires the court to refer “the parties” to arbitration only where they “have made an agreement within the meaning of this article.” NYC presupposes that an agreement between parties before the referral obligation arises. The U.S. Supreme Court confirmed in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC that the convention is silent on the enforcement of arbitral agreements on by non-signatories and leaves this question to domestic law. As Justice Sotomayor’s concurring opinion emphasised, arbitration under Federal law remains “a matter of consent, not coercion.” A ticket-buying customer does not satisfy any of these requirements, and FIFA’s private rulebook cannot oust a state Attorney General’s investigatory power. CAS has no more claim to this dispute than to any other transaction between a private company and the general public.

Article 190 of the PILA does not change this position as it only governs the annulment of arbitral awards rendered, and no CAS award exists because the dispute never reached CAS. Neither of the instruments supplied a basis for binding the consumer to CAS arbitration.

Competition Law

The roots of this development can be traced back to  Union Royale Belge des Sociétés de Football Association ASBL & Ors. v. Jean-Marc Bosman & Ors. (“Bosman”), where the Court of Justice ([“CJEU”) held that Article 48 of European Economic Community Treaty, which is now Article 45 of Treaty on the Functioning of the European Union (“TFEU”), preclude rules under which a professional footballer on the expiry of his contract could not move to a club in another Member State unless that club paid a transfer fee to his former club (Bosman, ¶14). In the ruling’s aftermath, the European Commission opened an investigation into the RSTP.

The basic principles underlying the current structure of the RSTP were agreed with the European Commission in March 2001, under considerable regulatory pressure. That history established the regulatory provenance of the transfer regime. It does not, by itself, establish the scope of CAS’jurisdiction to interpret or apply those rules, a distinction taken up in Part V.  EU competition enforcement has shaped this development since the late 1990s.

The recent trajectory of judgments continues that pattern with sharper teeth. In European Superleague Company, SL v FIFA and Union of European Football Associations (C-333/21), the CJEU confirmed that FIFA and Union of European Football Association (“UEFA”) remain “undertakings” for the purposes of Articles 101 and 102 of TFEU notwithstanding their regulatory functions because they organise competitions while commercially exploiting the rights arising from them (Superleague Company, ¶¶ 112-115). The CJEU held that their powers to approve rival competition and sanction participating clubs or players are compatible with EU competition law only where they are governed by objective, transparent, and proportionate criteria (Superleague Company, ¶¶ 135-136, 147, 151).  The CJEU reinforced this in FIFA v. BZ (Lassana Diarra, C-650/22), holding that key provisions of FIFA’s RSTP were capable of restricting both the free movement of workers under Article 45 of TFEU and competition under Article 101 of TFEU (BZ, ¶¶ 114, 158).

Two recent judgments refine this further and specifically concern the regulation of agents rather than clubs. In ROGON GmbH & Ors. v Deutscher Fußballbund (C-428/23), the CJEU held that a national federation’s rule governing players’ agents, although directed in part at non-members, may benefit from the Wouter/Meca-Media exception to Article 101 of TFEU only where they pursue a legitimate public interest objective, do not constitute a restriction by object, and are appropriate, necessary and proportionate to achieving that objective (ROGON, ¶¶ 36-38, 62, 64).

The furthest reaching of all is Royal Football Club Seraing v. FIFA & Ors. (C-600/23), where the CJEU reaffirmed that CAS awards cannot be insulated from review where they concern EU public policy. This is because CAS is not a “Court or Tribunal” entitled to make references under Article 267 of TFEU, as Member State courts must remain free to examine the compatibility of such award with Articles 101 and 102 of TFEU, irrespective of a res judicata effect or national procedural rules (RFC Seraing, ¶¶ 85, 88, 100, 102).

Human Rights

Mutu remains the anchor. The ECtHR held that CAS arbitration, which is nominally consensual, is in practice compulsory for any athlete who wishes to compete and that this compulsion imports the fair trial guarantees under Article 6 of the European Convention on Human Rights (Mutu, ¶¶ 95, 115). This finding was not unanimous, as two judges filed a joint dissenting opinion disputing that CAS possesses the structural independence the majority assumed, a reminder that even the CAS’ own bench was divided on how far institutional trust in CAS should extend (Mutu, Dissenting Opinion, ¶¶ 5-17).

Germany’s Federal Court of Justice independently reached a closely related conclusion almost two years earlier. In Pechstein v. International Skating Union (KZR 6/15), the Court recognised that an elite athlete’s acceptance of CAS arbitration is effectively imposed by the federation’s monopoly over participation, which is an instance of Heteronomie (externally determined consent). The Court upheld the arbitration agreement as objectively justified by the need for a uniform system of international sports adjudication (Pechstein, ¶¶ 57, 63). Two apex courts, by applying different bodies of law, arrived at the same diagnosis of CAS consent from opposite directions. In summation, the compulsion is real even where the arbitration survives review.

The Grand Chamber of the ECtHR in Semenya v. Switzerland (App no. 10934/21) both extends and complicates the Pechstein line. The Court held that because Caster Semenya’s challenge to World Athletics’s DSD eligibility regulations touched her bodily integrity and could only be pursued through compulsory CAS arbitration. The SFT was required to undertake a “particularly rigorous” review of the award, a standard it failed to meet, thereby violating Article 6(1) of the ECHR. Yet the Grand Chamber’s ruling reveals something more precise than a question of geography. The Court held that Article 1 jurisdiction is “essentially territorial” (Semenya, ¶ 119). It found no sufficient link between Switzerland and the adoption of the regulations by the Monaco-domiciled federations, which had drafted and applied them without Swiss involvement (Semenya, ¶¶ 98, 127). The Federal Supreme Court had jurisdiction over the fairness of that appeal under Article 6 as Semenya had appealed. This followed the settled principle that bringing a civil action before a state’s courts establishes a jurisdiction link irrespective of where the underlying facts occurred (Semenya, ¶¶ 123, 130-135 applying Markovic and Ors. v. Italy). The Court nevertheless refused to extend that procedural link to Semenya’s substantive claims. It held that the Federal Supreme Court’s review was insufficient to establish jurisdiction under Article 8 and Article 14 of the ECHR (Semenya, ¶ 145). Article 6 concerns procedural rights alone, and that distinction explains why an appeal before a state’s court can establish jurisdiction under Article 6 without doing the same for substantive Convention rights (Semenya, ¶¶ 143-144).

This ruling has significant implications for how federations structure themselves. A federation domiciled in Switzerland remains subject to the ECHR through ordinary territorial jurisdiction. A federation domiciled elsewhere may retain CAS’ institutional advantages, including its Swiss seat in Lausanne under CAS Code Article R28, without necessarily bringing its substantive rules within Strasbourg’s jurisdiction. The distinction is therefore between the “review of arbitral process” and the “review of the sporting rule” itself. Semenya shows that the former may fall within Swiss jurisdiction even where the latter does not. This creates a jurisdictional vulnerability for substantive ECHR scrutiny. Domicile is not an automatic shield since another sufficient territorial connection could still establish jurisdiction. However,  where such a connection is absent, a federation’s choice of domicile can separate the rule maker from the legal order capable of reviewing the rule. The public law boundary around CAS remains real but jurisdictionally contingent. That contingency has a limit of its own, however. Seraing demonstrates that domicile cannot provide the same insulation from EU law. Since,  CAS is not a court or tribunal capable of referring to Article 267 of TFEU, courts of the Member States must remain able to subject CAS awards to effective review for compliance with EU public policy, including Article 101 and 102 of TFEU. A federation may, depending on the circumstances, fall outside Switzerland’s territorial jurisdiction under Article 1 of ECHR, but relocation does not, by itself, remove the possibility of review under EU law where a Member State court is seized of the award.

Criminal Justice

CAS’ disciplinary jurisdiction and a State’s criminal jurisdiction operate independently, but SFT’s recent decision in A v.B (4A_268/2025) illustrates what happens when those two systems intersect. In a sole arbitrator CAS award of 8 August 2019 (CAS 2018/O/5735), a professional footballer was ordered to pay an agent approximately €84,900 in commission, accepting that the parties were bound by the representation agreements and rejecting the player’s claim that the underlying agreements were forged (A v. B, ¶ 5.2). The player then pursued criminal proceedings in Switzerland, which produced final judgments establishing that the agent had fabricated the representation contracts and forged the player’s email -misleading the CAS tribunal into awarding undue commission, which were confirmed by the Federal Tribunal’s Criminal Chamber (A v. B, ¶ 4.1.2).

Relying on those final judgments, the player sought revision before the Federal Tribunal under Article 190a(1)(b) of PILA, arguing that the CAS award had been influenced to his detriment by proven criminal conduct (A v. B, ¶ 5.1). The Tribunal held that the award had been influenced by the agent’s fraud and annulled the award in its entirety. The matter was also remitted to CAS for a fresh decision (A v. B, ¶ 5.2). It separately rejected the player’s argument that the award was absolutely null, saving that remedy for extreme cases (A v. B, ¶ 5.3.1-5.3.2).

This judgment is significant because revision remains an exceptional remedy. The SFT has consistently described it as une arme à manier avec prudence (“a weapon to be wielded with caution”), recognising that an expansive approach would undermine the finality on which arbitration depends. That caution should not be read as uniform deference to CAS awards. In Semenya, the ECtHR found that the SFT’s ordinary review of a CAS award under Article 190(2)(e) of the PILA, a different mechanism from revision proceedings at issue here, fell short of the “particularly rigorous examination” which Article 6 required (Semenya, ¶¶ 209, 216). It is precisely because CAS jurisdiction was mandatory,exclusive and the dispute concerned rights corresponding in domestic law to fundamental rights (Semenya, ¶ 209). The Court held that this standard was not met (Semenya, ¶ 238), and found a violation of Article 6(1) on that basis. The contrast is instructive here, as the same court that treats revision as a last resort has, in a different context, been found by the ECtHR insufficiently exacting in its scrutiny of an arbitral award. Yet the decision also underscores an equally important principle that arbitral finality is neither absolute nor self-sustaining. It rests upon the integrity of the process itself where a competent criminal court conclusively establishes that an award was procured by fraud. CAS’ finality must yield to the administration of criminal justice.

IS LEX SPORTIVA A TRANSNATIONAL LEGAL ORDER?

Ken Foster has argued that CAS’s function of harmonising standards across federations “represents a lex sportiva, properly so called, because it is a transnational process arising from international arbitration and these principles could not easily be formulated in any other forum of dispute resolution in international sports.”

Antoine Duval’s recent account, however, supplies the sharpest corrective to any inflated reading of that consistency. Duval argues that lex sportiva’s “transnational operation is much less characterised by full autonomy than assemblage.” The CAS routinely absorbs Swiss law to interpret federation rules and occasionally applies EU law under the AEK Athens mandatory rules doctrine as discussed above. Duval’s study of the RSTP’s genesis in the shadow of Bosman is central as a rule regime routinely described as “lex FIFA” was in substantial part co-drafted with a public competition regulator. The CAS tribunals have expressly interpreted the RSTP by reference to its EU law and Bosman-era legislative history rather than treating the rules as a self-contained sporting text.

CAS’s own declination of jurisdiction under Clause 49, and the CJEU’s insistence in Seraing that Swiss public policy review cannot stand in for EU judicial review together confirm Duval’s diagnosis at the level of hard doctrine that lex sportiva is persuasive and coordinating, not supreme. It functions within a space that sovereign and supranational legal orders have left open to it.

THE CASE FOR SPORTING AUTONOMY: COUNTERARGUMENTS

A fair account of this debate must take the arguments seriously. CAS’ defenders and, more broadly, defenders of arbitral finality in sport actually make serveral argumentswhich have real institutional weight behind them.

Firstly, sport is transnational by nature, and a doping violation, an eligibility dispute, or a transfer disagreement typically involves parties from different states governed by federation rules meant to apply equally in Buenos Aires and Beijing. If every one of the roughly nine hundred matters CAS decides annually were instead exposed to parallel review by dozens of national courts and regulators, it would lead to fragmentation of justice, which arbitration was designed to prevent. Proponents can point to the SFT’s own Cañas judgment in which the Court, while candidly acknowledging that athletes do not freely consent to CAS arbitration, still upheld the clause’s validity precisely to preserve a single and predictable forum for international sports;

Secondly, CAS arbitrators typically combine legal training with genuine familiarity with anti-doping science, transfer regulations and sport-specific governance, which is generally absent in a generalist national court or competition regulator. CAS proceedings are also markedly faster and cheaper than multi-jurisdictional litigation, which matters enormously to athletes whose competitive careers are short and whose disputes are often time-critical.

Thirdly, international arbitration derives its value from the finality of awards backed by limited judicial review and near-universal enforceability. Read broadly, Seraing threatens that bargain. Its reasoning turns not on the peculiarities of sport but on the general inability of arbitral tribunals to seek preliminary rulings under Article 267 of TFEU. If that logic escapes the sporting context, the finality on which arbitration depends could be weakened well beyond football. Nor are sports federations demanding immunity from EU law. ROGON and RRC Sports show them accepting judicial scrutiny provided it remains structured and deferential. The same conditional deference recognised in Wouters, Meca-Medina, and now reaffirmed in ROGON.

Fourthly, the real risk is not isolated review but repeat litigation. If consumer regulators, competition authorities and human rights courts routinely revisit issues already decided by CAS, the disappointed parties will have every incentive to recast the same dispute under a different label. This can lead to an eligibility challenge as a human rights claim or a transfer dispute as a competition case.

None of these objections ultimately displace the central claims. They define the limits of the argument rather than defeat it. Uniformity and expertise justify CAS’ central role in disputes between sport’s private actors. They do not explain why consumers who never agreed to arbitrate or competition authorities enforcing obligations under the treaties should be bound by an arbitration clause they never accepted. Even Cañas acknowledged that consent was more theoretical than real. Nor does Seraing undermine arbitral finality. It does not invite routine review of CAS awards. It simply requires that questions of EU public policy remain reviewable somewhere before an award becomes immune from scrutiny. Most CAS awards which raise no issue of mandatory public law remain unaffected. The SFT has long rejected jurisdictional objections answered in bad faith. The answer is disciplined judicial review, not the exclusion of public law.

CONCLUSION

CAS’ success is undeniable. It has given international sport a specialised, coherent, and enforceable mechanism for resolving disputes across borders. However, institutional importance cannot become a substitute for legal authority. The cases examined above show that CAS operates within multiple legal orders,that its authority remains subject to contractual limits, mandatory public law, and the jurisdictional boundaries of the courts capable of enforcing those limits. Seraing demonstrates the need for effective judicial review where EU public policy is engaged, while Semenya shows that jurisdiction over the arbitral process does not necessarily extend to the substantive sporting rule.

The appropriate response,therefore, is not to weaken CAS’s function but to make its jurisdictional boundaries more explicit- CAS and international federations should adopt model provisions that expressly preserve the jurisdiction of courts and public authorities where mandatory public law or non-waivable rules apply. Where such issues arise in an arbitration, the award should identify the relevant public law constraints and the court or authorities that retain the jurisdiction notwithstanding the arbitration agreement. This would not create a general appeal against sporting decisions. It would instead clarify the boundary between matters properly committed to CAS and matters that mandatory law places beyond arbitral control.

The legitimacy of lex sportiva does not depend upon CAS being limitless but on understanding why its authority is limited. Arbitration begins with consent and sporting autonomy survives only when exercised within the legal orders that surround it. The future of CAS will not be defined by how far it can extend its reach, but by how carefully it recognises boundaries of its reach.

A tribunal does not become supreme by claiming authority over everything but by knowing what it cannot decide.

Yash Pathak is a fourth-year law student at IFIM Law School, Bangalore. He has a keen interest in international commercial arbitration, investment arbitration, and commercial litigation.
Hussain Hashmi is a fourth-year law student at IFIM Law School, Bangalore. He has a keen interest in arbitration and commercial laws.