The special power that FIFA holds as the supreme regulatory authority within its sport is accompanied by special responsibility. Albeit being a private body, FIFA must thus respect general principles of law and, in particular, those that generally bind legislators and public administrations. Among such principles of law, the non-retroactivity of laws and rules, procedural fairness, and good faith figure prominently.

Satisfying solely Article 67, para. 1 of the 2014 FIFA Statutes is insufficient in and of itself for establishing CAS jurisdiction to hear a dispute over a final decision of the FIFA Executive Committee. Article 67, para. 1 of the 2014 FIFA Statutes cannot be read in isolation, but rather in conjunction with Article 66 of the 2014 FIFA Statutes, which limits the class of individuals and entities entitled to submit disputes to CAS to “FIFA,Members, Confederations, Leagues, Clubs, Players, Officials, licensed match agents and players’ agents”. Given this limitation, an applicant for FIFA membership is not entitled to rely on Article 66 and 67 of the 2014 FIFA Statutes in order to base CAS jurisdiction.

FIFA has an established practice of avoiding the retrospective application of its substantive regulations in non-disciplinary settings, such as in matters related to the status and transfer of players. Also, the principle of non-retroactivity has been applied consistently in decisions of the FIFA Dispute Resolution Chamber and the FIFA Players’ Status Committee to disallow the retrospective application of substantive rules.

The principle of procedural fairness has consistently been applied in CAS arbitration, and particularly so in relation to disputes concerning the admission of clubs or athletes to competitions: “under CAS jurisprudence the principle of procedural fairness is surely among the unwritten principles of sports law to be complied with by international federations. Procedural fairness in the relationships between sports institutions and those subject to their authority – particularly in the realm of eligibility for and access to competitions – is one of the most important principles of lex sportiva, if not the most important one”.

Article 19 PILA provides that a mandatory rule of a law different from the lex causae may be taken into account if the dispute presents a close connection with that law. In order to apply EU rules of law, a CAS panel adjudicating an international dispute must verify that the three conditions set forth by Article 19 LDIP are met: (i) the EU rules in question belong to that special category of norms which call for application irrespective of the law applicable to the merits of the case; (ii) there is a close connection between the subject matter of the dispute and the EU territory; and (iii) from the point of view of Swiss legal theory and practice, the invoked EU rules aim to protect legitimate interests and crucial values and their application allows a just decision.

The retroactive application of membership criteria by a sports governing organization with supreme regulatory authority would cause said criteria to be meaningless, as the organization could simply alter the rules to exclude a particular applicant and would also violate the principle of procedural fairness. In this regard, it must be especially considered that, in essence, admission as a member of an international federation is the only gateway for a national federation (and its athletes and teams) to gain access to competitions at world level.

According to CAS jurisprudence, the concept of “nation” or “country” in the sports environment may have a different meaning than in the usual language and may not necessarily be understood within its common political meaning.

The autonomy of an association under Swiss law is not unlimited. The autonomy may further be restricted where the relevant association holds a dominant position and exercises monopolistic powers. Under such a case, an admission can be refused to an applicant only if there is a justifiable ground for doing so. The restrictions placed on an association’s autonomy of association are based on the legal protection of personality rights, of good faith and against anti-competitive agreements and abuse of a dominant position.

The fact that national federation has access, as a member of UEFA, to football activities and competitions throughout Europe, does not mean that the federation’s personality rights are not infringed by non-admission to FIFA, not least due to the differences in the sporting and economic activities at the different levels.

A total and permanent exclusion of a federation from all FIFA competitions is different from an exclusion from a single isolated FIFA competition, much like a player under a life ban would be perpetually unable to compete in any kind of world-level competition.