In a decision dated 15 March 2023, the French Administrative Supreme Court (the “Conseil d'Etat”) has reviewed its Jujitsu case law regarding the determination of the competent courts in the event of a dispute relating to the statutes of a sports federation, thereby complicating an already delicate division of jurisdiction. This decision provides an opportunity to recall the original division of litigation against decisions of sports federations, while examining the practical consequences resulting from the evolution of the Conseil d'Etat's position on this issue. 

In 1988, President Chabanol wrote in an article entitled "Duality of the Orders of Jurisdiction: Should the Court of Conflicts Be Burned?"("Dualité des ordres de juridictions: faut-il brûler le Tribunal des conflits?) :

"Curiosities will not disappear, unless we give up applying any theoretical criterion, and therefore abolish all jurisdictional law. But a random distribution of disputes between the two orders of jurisdiction would be even more baroque, depending on the mood of the judges. In short, if the boundary is represented by a thick area, no one can find their way around it, and the judge distributes cases as best he can, without any a priori system; if it is represented by a thin line, however complicated its contours may be, one can exercise objective control over the legal situation, even if one may wish that this line were closer to the right. This transition from subjective law (thick area) to objective law (line) is precisely the advantage of the rule of law, which depends first and foremost on the degree of objectivity of the rules applied".[1]

Because of the diversity of its actors and its sometimes complex operation, sports law is a hybrid law. Some actors are, by nature, subject to the judicial courts, others to the administrative courts, and still others may be subject to the jurisdiction of either the administrative courts or the judicial courts, depending on the dispute in question. To the point that it is sometimes difficult for claimants to find their way around.

The situation has just become more complex with the Conseil d'Etat's decision of 15 March 2023, in which the High Court reversed its Jujitsu jurisprudence on the determination of the competent courts in the event of a dispute concerning the statutes of a sports federation.

This case provides an opportunity to review the respective jurisdictions of the administrative and judicial courts in relation to a sports federation and to highlight the difficulties they create for litigants and practitioners.

1 - Changes in the distribution of jurisdiction to hear appeals against the acts of sports federations following the "FFB decision" of 15 March 2023

The decision of 15 March 2023 is an opportunity to recall the original distribution of litigation against decisions of sports federations (A). This decision changes this distribution because of the abandonment of the formal criterion linked to a challenge to the statutes (B).

1.1 The original division of jurisdiction between the courts to hear appeals against acts of sports federations 

The purpose of sports federations is to organise the practice of one or more sports and they are set up in the form of association(s). They are therefore legal entities governed by private law and their decisions are, by their very nature, acts governed by private law. As a result, their disputes naturally come under the jurisdiction of the judicial courts. 

However, certain federations may be granted a public service delegation by the Minister for Sport, with a view to participating in the performance of a public service mission. 

In practice, under the terms of Article L. 131-15 of the French Sports Code, the delegated federations have the following powers:

"1° Organise sporting competitions leading to international, national, regional or departmental titles;

2° Make the corresponding selections;

3° Propose a federal performance project consisting of a programme of sporting excellence, a programme of access to top level sport including measures to encourage the detection, including outside national territory, of athletes likely to be included on the lists mentioned in 4° and a programme of support for the professional retraining of top level athletes;

4° Propose the inclusion of athletes, trainers, referees and judges on the list of high-level sportsmen and women, the list of promising sportsmen and women and the list of national team sportsmen and women”.[2]

1. According to the long-standing case law of the Conseil d'Etat, decisions taken by these federations in the exercise of the prerogatives of public authority conferred on them constitute administrative acts (CE Ass 31 July 1942, no. 71398 (Monpeurt ruling), CE sect. 13 January 1961, no. 43548 (Magnier ruling); CE, sect. 22 November 1974, no. 89828 (FIFAS ruling) and more recently CE 8 April 2013, no. 351735). Consequently, disputes relating to these matters fall within the jurisdiction of the administrative courts.

On the other hand, disputes relating to decisions taken by the federations outside the exercise of the prerogatives of public authority conferred on them are private acts and are therefore subject to the jurisdiction of the courts.

1.2 The abandonment by the Conseil d'Etat of the formal criterion determining the jurisdiction of judicial review carried out on the acts of of sports federations' acts

The division of jurisdiction between the courts of the judicial order and the courts of the administrative order to hear disputes relating to sports federations therefore appeared to be watertight and marked by a certain logic. 

One might then have thought that the same distribution would apply to litigation relating to the federations' statutory provisions, depending on whether or not they had received a public service delegation. 

However, in its Jujitsu decision of 12 December 2003, the Conseil d'Etat ruled that the administrative courts did not have jurisdiction over the statutes of delegated federations, stating that these statutory stipulations were acts of private law since they concerned the internal operation of the federation and not its prerogatives as a public authority (CE no. 219113, 12 December 2003, Jujitsu).

In this decision, the Conseil d'Etat went against the conclusions of the public rapporteur, who advocated giving jurisdiction to the administrative courts when a decision is taken in the exercise of the prerogatives of public authority that have been entrusted to it. 

The Jujitsu decision was heavily criticised in the academic world because, in this decision, the administrative court refused to apply a jurisdictional criterion that it had been applying for years. Above all, this decision allowed the delegated federations to escape the jurisdictional control of the administrative order over the exercise of their prerogatives of public authority, with disputes relating to the statutes remaining within the exclusive jurisdiction of the judicial judge, who by definition is less specialised in the subject. 

The action for annulment for abuse of power against the decision taken by the French Billiards Federation to amend certain provisions of its statutes gave the Conseil d’Etat the opportunity to reconsider its position.

The case was brought before the Conseil d'Etat by three billiards leagues on the grounds that the French Billiards Federation had been delegated by the Minister for Sport. In response, the French Billiards Federation challenged the jurisdiction of the administrative court to hear this action for annulment, citing Jujitsu case law. 

In its decision, the Conseil d'Etat begins by recalling the legal framework applicable to decisions taken by federations. Breaking with the Jujitsu jurisprudence, it establishes the principle that the decisions of delegating federations taken in the exercise of the prerogatives of public authority conferred on them are administrative acts, regardless of whether or not these decisions are dictated by their articles of association. 

Having established this principle, the Conseil d'Etat then examined whether the articles challenged by the claimants fell within the scope of French Billiards Federation exercise of its delegated powers. Considering that these statutory provisions related to the organisation and internal operation of the federation, the Conseil d'Etat ruled that they did not reflect the use by the federation of public authority prerogatives in the exercise of its public service mission. It therefore ruled that the administrative courts did not have jurisdiction.

2 -The increasing complexity of appeals against the actions of sports federations as a result of the FFB decision

Although the solution reached by the Conseil d'Etat in the decision referred to above changes the state of the division of powers, it does not constitute a complete reversal (A). Moreover, this development is a source of legal uncertainty (B).

2.1 -A shift in Jujitsu case law rather than a reversal

This decision has been seen by some as a reversal of the Jujitsu case-law. In reality, it is more of an evolution than a reversal on the part of the Conseil d'Etat. This decision is in line with the other decisions of the Conseil d'Etat and, more generally, with the major principles identified by the latter:

• The Conseil d'Etat had already accepted in the past that the administrative courts had jurisdiction to hear appeals against the internal regulations of delegated federations, provided that the disputed provisions relate to the exercise of prerogatives of public authority for the fulfilment of a public service mission (CE, 14 May 1990, Lille Université Club, no. 94917, B).

There was therefore no legal logic in approaching the question of jurisdiction differently depending on whether the subject of the action was the statutes of a federation or its internal regulations.

• The reasoning adopted by the Conseil d'Etat in the decision commented on echoes the solution adopted in its previous decision “confédération nationale du crédit mutuel” (CE, 9 March 2018, no 399413):

"By assigning to the CNCM the task of ensuring the proper functioning of Crédit Mutuel and by endowing it with the most extensive powers of organisation and management over the branches which it represents, the legislature has entrusted this confederation, even though it is an association under private law governed by the law of 1 July 1901, with the performance, under the control of the administration, of a public service involving the use of prerogatives of public authority. Consequently, the administrative court has jurisdiction to assess the legality of the clauses of the national confederation's articles of association which reveal the exercise of such prerogatives.[3]

In the final analysis, therefore, this decision is simply the combination - and the culmination - of a number of principles identified by the Conseil d'Etat in the course of its rulings.

2.2 -A development that creates legal uncertainty

The solution resulting from the decision of 15 March 2023 raises a number of questions: it creates legal uncertainty for the federal institutions, as well as for llicensees and affiliated groups.

Firstly, on the same day as the Conseil d'Etat's decision discussed above, the French Judicial Supreme Court (the “Cour de cassation”) reiterated the importance the statutes of an institution, making it possible to guarantee its proper functioning and the legal certainty of the "acts and decisions taken" in accordance with its statutes (Com., 15 March 2023, no. 21-18.324 (concerning the articles of association of an SAS)). However, when it comes to identifying the use of public authority prerogatives and the link between these prerogatives and the public service mission entrusted, it is not certain that the administrative and judicial courts share the same interpretation. As a result, conflicts of jurisdiction between the courts are to be expected, adding to the pre-existing complexities in the allocation of disputes between jurisdictions.

Secondly, when faced with appeals from their members or affiliated groups challenging the federal statutory provisions, the federations could use the Byzantine division of powers between the various courts for dilatory purposes. This could make it difficult for the claimant to determine which administrative court has jurisdiction. If the disputed statutory provision, directly or indirectly, is of a regulatory nature, the Conseil d'Etat will have jurisdiction in the first and last instance if the federal association or professional league is involved (article R. 311-1 of the Code of Administrative Justice). In the case of regional leagues, however, the matter must be referred to the administrative court for the location of the association's registered office (article R. 312-1 of the Code of Administrative Justice).

In addition, in order to avoid an inadmissible decision, it is advisable to respect the obligatory prior conciliation procedure (article L. 141-4 of the Sports Code) as well as, beforehand, to exhaust the internal appeal procedures of the federal institution. In short, the claimant's path through the federal institution is strewn with pitfalls.

To put it another way, and to use President Chabanol's metaphor of the border, litigation concerning the statutes of federations seems to be taking the route of a "thin line". But it does not replace case law that favours the "thick zone": the position that federal statutes are acts of private law that consequently exclude the jurisdiction of the administrative judge is just as much a "thin line" of an objective nature.

"There is no point in incriminating our supreme judges, who are simply doing their job as lawyers and do not cultivate complication for its own sake: legal activity, let us repeat, is by its very nature a generator of these border oddities, and it is better for the rule of law to have a precise border with these oddities than an "elastic" border that varies according to the mood of the moment"[4] .

However, beyond safeguarding the rule of law, it is not in the interests of litigants to go from "jurisdictional curiosities" to new "border oddities", which are just as difficult to anticipate as the previous ones.

[1][1] Président Chabanol, "Dualité des ordres de juridictions: faut-il brûler le Tribunal des conflits? 

[2] Article L. 131-15 of the French Sports Code

[3] CE, 9 March 2018, no. 399413

[4] D. Chabanol, AJDA of 20 December 1988