The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626).

The CAS Ruling

Semenya and her attorneys claimed that forcing her to get unwanted medication represented a violation of human rights. On the 1^st May 2019, the Swiss-based Court of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female athletes with high levels of testosterone by the IAAF. The direct consequence of this decision for Semenya was the obligation for her to take testosterone suppressants in order to continue competing in her category of IAAF events.

In March 2019, the United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and that there was “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”

Because the Regulations established conditions and restrictions which were targeted at the female (or intersex) athlete population exclusively and did not impose any equivalent conditions or restrictions on male athletes, the CAS Panel considered that the Regulations were, prima facie discriminatory on grounds of legal sex. After reminding that “it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and a proportionate means of attaining a legitimate objective” (§548), the Panel considered that its sole responsibility was to determine whether the DSD Regulations were necessary, reasonable and proportionate. As such, the Panel said it was “not required to (…) appraise the adequacy of the IAAF’s policy-making process”.

The Swiss Federal Tribunal and ordre public

A decision from the CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private International Law (PILA), which include claiming that the principle of equal treatment of the parties or their right to be heard in an adversarial procedure has not been observed (lit. d) and that the award is incompatible with public policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted Semenya a temporary suspension of the IAAF rules on testosterone limits. She was able to compete over distances of 400 to 1’500m without medication, until the SFT issued a ruling.

Because it was considered that the discrimination was necessary, reasonable and proportionate in comparison with the vast majority of non-DSD women, the only outcome for Semenya’s lawyers was to argue on the violation of the principle of public order. The 30^th July 2019, the SFT reversed the ruling that temporarily lifted the application of the IAAF’s regulations, thus impeding her to defend her 800m title at the World Championships in Doha in September 2019. The SFT concluded that “neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human dignity appeared with high probability to be well founded”. Welcoming the decision, the IAAF stated that, in certain particular cases, “biology trumps identity”.

The elements of comparison

Body Policing

Admitting that “the imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case” (§559), the CAS stated that:

“On true analysis, (…) the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.”

The public opinion could not help but point the finger at the underlying hypocrisy of the decision, in comparison with similar cases, both inside and outside of the sports world. Firstly, the same type of policy and legal arguments are often held for controlling certain types of bodies exclusively, whilst leaving others out of the line of sight. In the sports world, it is certainly the case: think of the impressive decoration of Olympian swimmer Michael Phelps aligned with the god-like praises he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall basket-ball players on the bench so as to give naturally shorter players a chance to win, or testing male athletes with poor athletic results in suspicion they might have low levels of testosterone seems absurd. In fact, the latter are only tested as to make sure they do not take anything effectively modifying their capacities in competing. Semenya and her lawyers did point to the fact that “it is illogical and unnecessary to regulate one genetic trait while celebrating all the others” (CAS decision, §53).

Out of the sports world, indications of “naturalness” in pro-life arguments or governments’ refusal to medically cover the suppression of hormones in transgender reassignment cases are also examples of body policing. The case therefore raises the central question of how stereotypes, especially gender ones, give a social meaning to a fact and how legal regulation can confirm it, thus perpetuating it.

The social  meaning of women and gender

Taking a step away from Semenya’s cause célèbre, it must be stressed that, for long, women were not accepted to compete in the Olympics and that their progressive integration was only made possible when a redefinition of the norms of femininity and masculinity, as they relate to sports and competition, occurred. This means that medical tests were carried out and, as a backlash to noticing the instability and fluidity of sex categories, those very categories were reinforced and redefined according to stereotypes. In other words, the sports world went very far to ensure there was a biological difference so that the natural and social order as it was could not be disrupted.

If we try to move away from the (in my opinion, sterile) debate on biological differences (remembering that the latter has also been explained by anthropologists as being a consequence of our gendered social order[1]), we should ask ourselves who has the power to define the norms of femininity and masculinity. “Woman” and “man” have very particular social meanings. Furthermore, commentators often qualify the sex verification tests as being racially flawed. In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and is always the white male one, with “naturally” good athletic abilities. True, scientific results are usually dependent on a certain political order[2], as are any other empirical social-situated findings. The CAS Panel said that an assessment of the likely impact of the DSD Regulations on wider society would require “an analysis of multifaceted sociological issues which are not amenable to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is certainly not for an arbitration court to have the power to (re)define gender categories, which are intrinsically political and historical, and are not limited to the sports world.

Appealing to the ECtHR

If she does not prevail before the SFT, Semenya could still appeal to the European Court of Human Rights, alleging a breach of Article 14 and/or Article 8[3]. It may give the Strasbourg Court an interesting opportunity to comment on gender opposition and binarity, as well as on the social limitations put on gendered bodies. The gender stereotypes discussion is not a new one; regional and international courts have had the opportunity, on many occasions, to comment on the need to combat harmful gender stereotypes[4]. However, they usually do so in relation to human rights law and to the principles of equality and non-discrimination. Even if, of course, not every unjustified discrimination is rooted in stereotypes[5], they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the harmfulness of gender stereotypes, beyond the well-established categories in need of protection against unjustified discrimination.

The CAS practically said that it was bound by biology. If anything, the results of the sex verification tests should have proven that Semenya’s body has incredible athletic abilities, with no requirements of medically modifying it whatsoever.

Conclusion

In a letter to the IAAF about their regulations, United Nations experts on health, torture, and women’s rights wrote:

“The assessment for ‘exclusion or treatment’ based on the IAAF regulations relies on suspicion and speculation, based on stereotypes about femininity. This effectively legitimizes widespread surveillance of all women athletes by requesting national federations as well as doctors, doping officials, and other official personnel to scrutinize women athletes’ perceived femininity, which can include appearance, gender expression, and sexuality. Women who are understood to be “suspicious” about their natural physical traits are tied to subjective and cultural expectations regarding which bodies and modes of gender expression are “appropriate,” or even valorised by adherence to traditional or normative aesthetics of femininity. Gender and sex-based stereotyping and stigma have a long history, not only of causing psychological harm to women and gender minorities, but also of increasing the possibility of violence against them.”

The social norms of gender act as a blur on reality, based on the stereotype that “a real woman” should not be that good of an athlete. It provides us with an overview of how public policy decisions are justified by scientific findings, operating in a gender-normative environment. The discrimination was considered “necessary, reasonable and proportionate” in comparison with the vast majority of non-DSD women, but it somehow appears to be a debate on the equality between women and men and on reaffirming the importance of the “fixed duality of sexual difference”[6]. The CAS Panel said that it was “faced with conflicting rights concerning the rights of female athletes who do, and do not, have DSD” (§554).

Interestingly enough, the more women are compared to each other, on the grounds of fairness, the stronger the female gender category is reinforced.

[1] Priscilla Touraille, Hommes grands, femmes petites : une évolution coûteuse. Les régimes de genre comme force sélective de l’évolution biologique, Éditions de la Maison des Sciences de l’Homme: Paris 2008.

[2] Thomas Laqueur, La Fabrique du Sexe: Essai sur le corps et le genre en Occident, Gallimard: Paris 1992.

[3] The ECtHR had considered an application brought following an unsuccessful appeal to the Swiss Federal Tribunal in the October 2018 decision ECtHR, Mutu and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging breaches of Article 6 of the European Convention on Human Rights.

[4] The Office of the High Commissioner for Human Rights has broadly defined the notion of “harmful gender stereotypes”, as sexist beliefs, which include representing women in roles considered traditional; as mothers and household heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared a report on sex and gender stereotypes, which outlines the practice of treaty bodies and their reference to gender stereotypes. The obligations of States with regard to stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article 2 lit. f. which provides that States must “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”. At European level, judgments of the ECtHR have concerned stereotypes related in particular to sexuality (Kalucza v. Hungary), reproduction (A. B. C. v. Ireland; R. R. v. Poland) or domestic violence (Valiuliené v. Lithuania; Opuz v. Turkey). See also Konstantin Markin v. Russia; Carvalho Pinto de Sousa Morais v. Portugal; Khamtokhu and Aksenchick v. Russia.

[5] Sophia Moreau, ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law, Oxford University Press : Oxford 2019.

[6] Hilary Charlesworth, ‘Foreword’, in Harris Rimmer S./Ogg K., Feminist Engagement with International Law, Edward Elgar: Cheltenham 2019.

Since last year, Doyen Sports, represented by Jean-Louis Dupont, embarked on a legal crusade against FIFA’s TPO ban. It has lodged a competition law complaint with the EU Commission and started court proceedings in France and Belgium. In a first decision on Doyen’s request for provisory measures, the Brussels Court of First Instance rejected the demands raised by Doyen and already refused to send a preliminary reference to the CJEU. Doyen, supported by the Belgium club Seraing, decided to appeal this decision to the Brussels Appeal Court, which rendered its final ruling on the question on 10 March 2016.[1] The decision (on file with us) is rather unspectacular and in line with the first instance judgment. This blog post will rehash the three interesting aspects of the case.

·      The jurisdiction of the Belgian courts

·      The admissibility of Doyen’s action

·      The conditions for awarding provisory measures

I.      The jurisdiction of the Belgian courts

Doyen was not the only party to the dispute dissatisfied with the first instance ruling; FIFA and UEFA also appealed the decision challenging the territorial competence of the Belgian Court to hear the claims raised against FIFA’s TPO ban. They consider that the Swiss courts are solely competent to deal with civil disputes involving its rules and decisions.

As in first instance, the thrust of the ruling on this question turns on the interpretation of the Lugano convention of 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In principle, under Article 2(1) of the Convention: “Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.” Thus, translated to the present dispute this would imply that FIFA and UEFA, which are Swiss Associations, are in principle to be sued in front of Swiss courts.

Moreover, to support their view that Swiss Courts have an exclusive jurisdiction, FIFA and UEFA also invoke Article 22(2) Lugano Convention stipulating that “proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the State bound by this Convention in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law”. Yet, the Appeal Court is of a different opinion and refers to the jurisprudence of the CJEU indicating that Article 22(2) should be interpreted as referring to disputes lodged based on company law or their statutes against decisions of a company or association.

The principle enshrined in Article 2 Lugano Convention is not absolute, many exceptions are provided in the Lugano Convention itself. In particular, Article 5(3) Lugano Convention foresees that in delictual matters the court of the place where the harmful event occurred or may occur is competent. This entails both the place were the harmful conduct was put in motion and the place where the harm was felt. In the present case, the Appeal Court argues that it is “difficult to contest that by hindering the appellant to execute their partnership agreement and enter in future TPO or TPI agreements over specific players, the attacked ban is producing harmful effects on the Belgian territory”.[2] Furthermore, the TPO agreement between Doyen Sports and the ASBL RFC Seraing is not deemed fictitious, as it has been invoked by FIFA to hand out disciplinary sanctions to the ASBL RFC Seraing.[3]

Additionally, the Court derives also its competence from Article 6(1) Lugano Convention. This article provides that a party can be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. The key question is whether there is sufficient connectedness between the claims raised against l’URBSFA, FIFA and UEFA. The Court refers to the recent case law of the CJEU, which is relevant to the interpretation of the Lugano Convention, on the identical provision in the Brussels Regulation (notably the case C-352/13 at para. 20). It is of the view that “FIFA and URBSFA share a regulatory and disciplinary power that enables them both, acting jointly or separately, to adopt the contested ban, to enforce it and to adopt an individual decision susceptible to block, compromise and/or restrict the execution of the contract signed by the appellants”.[4] Thus, “the autonomous regulatory power of the URBSFA justifies its participation in this proceeding, alongside FIFA in order (i) to obtain that both be prevented to act; (ii) that each of them be deprived of the opportunity to contest the opposability of a decision to which they would not have been part and lastly (iii) to deny FIFA the possibility to circumvent an interdiction pronounced against it by having recourse to the regulatory power of the URBSFA”.[5] Finally, the Court argues “if the appellant were forced to lodge a claim against FIFA in front of the Swiss courts and against URBSFA in front of the Belgian Courts, this could potentially lead to irreconcilable solutions”.[6] As far as the claims against UEFA are concerned, which has not contrary to FIFA explicitly banned TPO, the Appeal Court is also convinced of their connectedness. It is so because UEFA “imposes to the clubs needing a license to participate in its competitions that they comply with the statutes and regulations of FIFA and, thus, with the disputed TPO ban “.[7]

This is again a powerful reminder that Sports Governing Bodies (SGBs) seated in Switzerland cannot evade the jurisdiction of the national courts of EU Member States when EU competition law is involved.[8] Under Article 5(3) Lugano Convention, EU Member States courts will be competent to deal with a civil liability claim based on EU competition law if the damage caused by the disputed measure/decision/regulation can be felt on the national territory of a Member State. Furthermore, if, as is usually the case for sports regulations, the rules have to be implemented by national sporting associations, the claims raised against the national SGBs will most likely be deemed connected to the original decisions/regulations of the international SGBs and justify the jurisdiction of the court of the domicile of the national SGB.[9]

II.    The admissibility of Doyen’s action

In this proceeding, as well as in the one initiated in front of the Paris court (FIFA’s legal submission in the Paris procedure has been published by football leaks), FIFA argues that Doyen’s action is not admissible due to the fact that the wrong administrator has initiated it. Indeed, under article 11.1 of Doyen’s own statutes the judicial representation is to be exercised by the local administrator designated by shareholder A acting in conjunction with the local administrator designated by shareholder B or by any other person designated by the general assembly. Yet, in practice Nelio Lucas, who fulfils none of the relevant criteria and was thus not authorized to act in Doyen’s name in judicial matters, lodged the action. However, Doyen could have under Belgium procedural rules ratified the judicial initiative taken by an incompetent organ. Doyen tried to do so but failed to organize the general assembly necessary to ratify Nelio Luca’s decision. Thus, the Court deems the action initiated by Doyen inadmissible. Luckily for Doyen it was not the sole party to the proceedings as the ASBL RFC Seraing joined the procedure. The Court believes the intervention of RFC Seraing in the proceedings is admissible and its interest to act is acknowledged. On this latter point, FIFA was arguing that RFC Seraing’s interest to act was inexistent due to the fact that the partnership agreement between Doyen and Seraing was contrary to the public order. However, in light of the divergent positions regarding the legality of TPO/TPI and of the on-going proceedings before various national courts and the European commission, the Belgium court is reluctant to admit that the interest of Seraing to act in this matter is illegitimate.

III.  Doyen’s (un)likelihood to prevail

Concerning the likelihood to prevail, however, the Court sided with the federations and refused to admit that the TPO/TPI ban was likely to restrict article 101(1) TFEU. On the one hand, as indices of the compatibility of the ban with EU law, it pointed out that the Commission was inclined to support the TPO ban, that FIFPro was clearly opposed to TPO and invokes fundamental values in support of the ban, and that the ban was adopted after a collective reflection involving many stakeholders and is aimed at tackling the negative externalities listed by the first instance court.[12] On the other hand, it refers to an academic article authored by Marmayou contesting the compatibility of TPO with EU law (this reference appears poorly chosen as the article is dedicated primarily to the FIFA regulations for intermediaries, for a stronger challenge to the compatibility of the TPO ban with EU law see Lindholm).[13] In any case, “it is obvious that a preliminary assessment cannot lead the Court to conclude, with sufficient certainty, that the ban would be contrary to EU competition rules”.[14] Finally, and this is the part of the ruling that seems to have been slightly misinterpreted by the press. The Court pointed out that Seraing and Doyen were asking in the main proceedings for a preliminary reference to the CJEU and that they were, therefore, conscious that they are not certain to prevail. However, the Appeal Court cannot, in the framework of a procedure involving provisory measures, ask a question to the CJEU, as it is unable to comply with the CJEU’s requirements for the admissibility of preliminary references (see the failed attempt in the UEFA FFP case). Hence, it is for the Commercial Court of Brussels, which is competent in the main proceeding, to decide whether it is necessary to do so. The Appeal Court (and the claimants as it cheekily points out) seems to believe that it could be needed, as it is not at all clear that the ban is contrary to EU competition law.

Conclusion

There are number of lessons that can be drawn from the judgment of the appeal court. Three stand out:

1. FIFA and UEFA cannot evade the jurisdiction of EU courts. Indeed, if an EU competition law violation of their rules is invoked they can be brought before the jurisdictions of the Member States
2. Doyen messed up in its original court filing by failing to abide by the procedure enshrined in its own statutes. This has no dire consequences in the Belgium proceedings due to presence of Seraing, but it might be a different story before the Paris court, where Doyen stands alone and the same procedural irregularity is invoked by FIFA.
3. To FIFA’s great satisfaction, the case against the TPO ban is not deemed strong enough to allow for the adoption of provisory measures blocking its implementation. As pointed out in our previous blog (and here) EU competition law is not a golden bullet that can be invoked easily to strike down FIFA or UEFA regulations. There is a high justificatory burden and the claimants will face an uphill battle to demonstrate that the ban is disproportionate (especially in light of the broad support for the ban amongst many key stakeholders).

This was only a small skirmish in a long legal war still before us. It will not be definitely over until the CJEU decides the matter (in 2018 at the earliest) or Doyen bows out of the game in the face of the high legal fees incurred. What is already certain is that the way EU law applies to sport is not straightforward and does not entail an economic/neoliberal logic blindly favourable to an unrestricted freedom to invest.

[1] Cour d’appel Bruxelles, Doyen Sports et ASBL RFC Seraing United c. URBSFA, FIFA et UEFA, 2015/KR/54, 10 mars 2016.

[2] “Il est difficilement contestable qu’en empêchant les appelantes de poursuivre l’exécution de leur convention de collaboration et la conclusion de nouvelles conventions « TPO » ou « TPI » spécifiques à des joueurs, l’interdiction litigieuse produit des effets dommageables sur le territoire belge.” Ibid, para.50.

[3] “C’est également en vain qu’il est soutenu que la convention de collaboration litigieuse ne serait qu’un artifice destiné à saisir les juridictions belges. En effet, elle a connu une exécution par des payements de sommes de Doyen Sports à l’ASBL RFC Seraing et surtout, son existence a été invoquée par la FIFA pour mener des poursuites disciplinaires contre le club dirigé par l’ASBL RFC Seraing et lui infliger une sanction.” Ibid.

[4] “L’URBSFA et la FIFA se partagent donc un pouvoir réglementaire et de contrainte qui leur permet, à l’une et à l’autre, agissant ensemble ou séparément, d’adopter l’interdiction litigieuse, de la mettre en œuvre et de prendre une mesure ou une décision à caractère individuel de nature à empêcher, compromettre et/ou entraver l’exécution du contrat conclu entre les appelantes.” Ibid, para.57

[5] “Le pouvoir règlementaire autonome de l’URBSFA et son pouvoir d’action propre justifient sa présence dans la procédure, en même temps que la FIFA afin (i) d’obtenir l’empêchement d’agir de l’une et de l’autre ; (ii) de priver chacune d’elles de la possibilité de contester l’opposabilité d’une décision judiciaire qui serait rendue dans une cause à laquelle elle serait demeurée étrangère et enfin (iii) d’empêcher la FIFA de contourner une interdiction qui serait prononcée à son encontre en recourant au pouvoir réglementaire de l’URBSFA.” Ibid.

[6] “Si les appelantes étaient dans l’obligation d’attraire la FIFA devant les juridictions suisses tout en citant l’URBSFA devant les juridictions belges, cette situation serait susceptible de conduire à des solutions inconciliables […]”, ibid. para.58.

[7] “En ce qui concerne l’UEFA, la connexité existe également. En effet, si elle n’est pas l’auteur des dispositions réglementaires et si elle n’est pas intervenue comme soutien dans l’exercice de poursuites disciplinaires menées contre le RFC SERAING, elle impose aux clubs qui doivent obtenir une licence pour participer aux compétitions qu’elle organise, de se plier aux statuts et aux règlements de la FIFA et à l’interdiction en cause.” Ibid., para.59.

[8] The same solution was adopted in 2012 by the French Cour de Cassation (Highest French Civil Court) in a dispute opposing the French agent Piau to FIFA. See Cour de cassation, civile, Chambre civile 1, 1 février 2012, publié au bulletin.

[9] This solution was also adopted by the OLG in the Pechstein ruling, see Oberlandesgericht München, 15 January 2015, Az. U 1110/14 Kart, para.A.I.1.a)aa) and bb).

[10] « L’urgence est établie. L’ASBL RFC Seraing est sous le coup d’une sanction disciplinaire dont seule l’exécution a été suspendue et elle est susceptible d’encourir de nouvelles poursuites et sanctions pour le cas où elle conclurait de nouvelles conventions TPO/TPI avec Doyen Sports ou toute autre société menant des activités de financement similaires.” Cour d’appel Bruxelles, Doyen Sports et ASBL RFC Seraing United c. URBSFA, FIFA et UEFA, 2015/KR/54, 10 mars 2016, para.78.

[11] « Ensuite, il n’est pas douteux que l’interdiction de poursuivre la convention de collaboration du 30 janvier 2015 et de conclure de nouvelles conventions TPO/TPI la prive d’une source de financement, sans qu’il soit démontré par les intimées qu’elle pourrait lui trouver un substitut adéquat par des emprunts classiques auprès de tiers.”Ibid.

[12] « D’un côté, il faut constater que :
- la Commission paraît s’être orientée vers la condamnation de la TPO;
- la FIPpro y est clairement opposée et invoque à cette fin des valeurs essentielles;
- l’interdiction est le résultat d’une réflexion collective à laquelle ont participé de nombreux interlocuteurs - et non pas seulement l’UEFA ou certains de ses membres - et elle est l’aboutissement de plusieurs constats que relève le premier juge dans son ordonnance : opacité, absence de contrôle des instances dirigeantes, importance du phénomène puisqu’il concerne le marché mondial, environnement ouvert à la corruption et aux pratiques frauduleuses, importance des sommes en jeu, etc...” Ibid, para.81.

[13] « De l’autre, de sérieuses réserves sont émises à propos de la légalité de l’interdiction de la TPO/TPI (voir ainsi l’article de J.M. MARMAYOU, « La compatibilité du nouveau règlement FIFA sur les intermédiaires avec le droit européen » Les cahiers de droit du sport, 2015, p. 15, pièce 38bis des appelantes).” Ibid.

[14] « Il est patent qu’un examen en apparence ne permet pas de conclure, avec la force nécessaire, que l’interdiction porte atteinte aux règles de la concurrence.” Ibid, para.82.