U Craiova 1948 Club Sportiv SA & Lyes Hafid Houri v. RomanianFootball Federation (FRF) & Liga Profesionistă de Fotbal (LPF) & CAS 2025/A/11530 Fotbal Club Rapid 1923 SA v. Romanian Football Federation

V. JURISDICTION

59. The Panel notes that the Appealed Decision was issued by FRF’s Executive Committee. The jurisdiction of CAS derives from Article R47 of the CAS Code, which reads:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.”

60. Further, Article 48 paragraph 8 of FRF’s Statutes (2014 Edition), determines as follows:

“Decisions of the Executive Committee that are contrary to the law or to the provisions of the FRF Statutes and regulations may be challenged in court by any member who did not participate in the meeting or who voted against the decision and requested that this be recorded in the meeting minutes, in accordance with the

applicable legislation. Any dispute concerning the decisions of the Executive Committee shall first be subject, mandatorily, to arbitration proceedings before the Court of Arbitration for Sport in Lausanne.”

61. FRF contends that CAS lacks jurisdiction to rule on the conformity of the Appealed Decision as CJEU has exclusive competence of ruling on EU law. In this regard, the Panel notes that EU law does not provide CJEU exclusive competence of ruling on EU law, and that previous CAS panels have consistently held that it may rule on issues that concern EU law, e.g. CAS 98/200, CAS 2014/A/3776 and CAS 2016/A/4492 as noted above.

62. Furthermore, CJEU has held that CAS, in principle, can serve as a tribunal that may examine cases that concern principles and provisions which form part of EU public policy. In Case C‑600/23 (Royal Football Club Seraing) CJEU stated as follows (paragraph 99 et seq.):

“99 In the first place, as was noted in paragraph 76 above, the second subparagraph of Article 19(1) TEU does not necessarily imply that there must be a direct legal remedy within the territory of the European Union, such as an action for annulment, an objection or an appeal, the object of which is to enable the individuals concerned to challenge such awards, and, in so doing, to obtain from the court or tribunal having jurisdiction effective judicial review of those awards. It is, however, possible for the sports association concerned to put in place an arbitration mechanism that is subject, in view of that association’s headquarters, to such a direct legal remedy within the European Union.

100 By contrast, whenever an award has been made in the context of a dispute relating to the pursuit of a sport as an economic activity within the territory of the European Union and no provision has been made for a direct legal remedy against that award before a court or tribunal of a Member State, a possibility must exist, as was recalled in paragraph 76 above, for the individuals concerned to obtain indirectly, at their request or of the court’s or tribunal’s own motion, from any court or tribunal of a Member State that is liable to examine such an award in any manner whatsoever, effective judicial review as to whether that award is consistent with the principles and provisions which form part of EU public policy, as is clear from paragraphs 85 and 95 above. In the absence of such an indirect review or if that review is not effective, in the light of the factors set out in paragraphs 92 and 93 above, there would be no legal remedy making it possible to ensure effective judicial protection for the individuals concerned, with the result that the Member State concerned is required to put in place such a remedy.

101 In the second place, the courts or tribunals of the Member States that are called upon to carry out such a review must, where such an award involves, as in the present case, an interpretation or application of the principles or provisions which form part of EU public policy and which confer rights or freedoms on individuals, be able to review the interpretation of those principles or provisions, the legal consequences attached to that interpretation as regards their application to the case at hand, and the legal classification which was given, in the light of that interpretation, to the facts

as established and assessed by the arbitration body, as is clear from paragraphs 86 and 95 above.

102 In the third place, those courts or tribunals cannot confine themselves to finding, as the case may be, that such an award is inconsistent, in full or in part, with the principles or provisions which form part of EU public policy.

103 On the contrary, those courts or tribunals must also be able to draw, within the framework of their respective powers and in accordance with the applicable national provisions, all the appropriate legal conclusions where such an inconsistency is found to exist. Failing that, the judicial review carried out would not be effective, inasmuch as it could allow that inconsistency to persist.”

63. On this basis, the Panel is content to accept the need to test whether the 5+6 Rule is compatible with Articles 18, 45, 101 and 102 TFEU.

64. It follows that this CAS Panel has jurisdiction to adjudicate and decide on the present dispute.

VI. ADMISSIBILITY

65. The time limit for submitting a statement of appeal is 21 days from the receipt of the decision appealed against pursuant to Article R49 of the CAS Code. The Statements of Appeal were filed by the Third Appellant on 16 June 2025 and by the First and Second Appellant on 17 June 2025, i.e. 20 and 21 days respectively after FRF communicated the Appealed Decision to the Parties on 27 May 2025, hence within the time limit.

66. The appeals complied with all other requirements of Article R48 of the CAS Code.

67. It follows that the appeals are admissible.

VII. APPLICABLE LAW

68. Article R58 of the CAS Code provides as follows:

“Law Applicable to the Merits. The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.”

69. The Appealed Decision was issued by the FRF Executive Committee in accordance with Article 48 paragraph 8 of FRF’s Statutes.

70. The Panel finds that, pursuant to Article R58 of the CAS Code, the present dispute is primarily to be decided based the applicable regulations, i.e. the FRF Statutes and the various rules and regulations of the FRF.

71. Furthermore, since the Appealed Decision was issued by the FRF Executive Committee, which is registered with its office in Bucharest, Romania, Romanian law is subsidiarily applicable.

72. With regards to the Appellants’ claim that UEFA and FIFA regulations shall be taken into account, the Panel notes that UEFA and FIFA regulations contain certain provisions that are mandatory for FIFA’s Member Associations. As FRF is a Member Association of both UEFA and FIFA, UEFA and FIFA regulations shall apply insofar they are mandatory for their respective Member Associations.

73. The Panel further notes that the Appellants claim that FRF’s regulations are incompatible with EU law, in particular Articles 18, 45, 101 and 102 TFEU. In this regard, the Panel notes that Romania is a member of EU since 2007. Furthermore, Article 19 of the Swiss Federal Act on Private International Law (“PILA”) provides as follows in the unofficial English translation published on the website of the Swiss Government:

“VII. Taking into consideration of mandatory provisions of foreign law

Art. 19

1. If interests that are legitimate and clearly preponderant according to the Swiss conception of law so require, a mandatory provision of a law other than the one referred to by this Act may be taken into consideration, provided the situation dealt with has a close connection with that other law.

2. In deciding whether such a provision is to be taken into consideration, consideration shall be given to its purpose and the consequences of its application, in order to reach a decision that is appropriate having regard to the Swiss conception of law”.

74. In line with consistent CAS jurisprudence, e.g. CAS 98/200 (paragraph 10), CAS 2014/A/3776 (paragraph 270) and CAS 2016/A/4492 (paragraph 43 et seq), a CAS panel must take into consideration EU law where three cumulative conditions are met. Firstly, such rules must belong to a special category of norms which need to be applied irrespective of the law applicable to the merits of the case. Secondly, there must be a close connection between the subject matter of the dispute and the territory where the mandatory rules are in force, and thirdly, the mandatory rules must aim to protect legitimate interest and crucial values, and their application must lead to a decision which is appropriate.

75. The Panel holds that all three cumulative conditions are met in the case at hand. Firstly, the Appellants claim that the Appealed Decision constitutes a breach of Article 18 TFEU regarding prohibition of discrimination on grounds of nationality,

Article 45 TFEU, regarding, inter alia, freedom of movement for workers, Article 101 TFEU, prohibiting, inter alia, decisions by associations of undertakings which may affect trade between Member States, and Article 102 TFEU, prohibiting abuse of a dominant position. The Panel notes that the abovementioned EU provisions are largely regarded as special category of mandatory rules within the EU. Secondly, the Second Appellant is of French nationality, whilst the other Parties have registered offices in Romania. As both France and Romania are members of the EU, the abovementioned EU provisions apply to the Parties.Thirdly, interests and values protected by the abovementioned EU provisions are shared and supported by the Swiss legal system.

76. Applying these principles to the present matter, the dispute shall primarily be decided according to the applicable regulations, i.e. the various regulations of FRF, whilst Romanian law is subsidiarily applicable. UEFA and FIFA regulations shall apply insofar they are mandatory for their respective Member Associations, whilst the Panel will need to test whether the 5+6 Rule is compatible with Articles 18, 45, 101 and 102 TFEU.

VIII. PRELIMINARY ISSUES — A. The Appellants’ Request for Production of Evidence

77. In its Statement of Appeal, Craiova and the Player requested FRF to produce documents, i.e. the final form of the amended rule, copies of the decisions, agendas and minutes in relation to three meetings held by the FRF Executive Committee on 30 January 2024, 24 April 2025 and 27 May 2025. On 17 June 2025, Rapid requested FRF to produce the decision of the Executive Committee of the FRF on 27 May 2025.

78. On 23 June 2025 FRF informed the CAS Court Office that it agreed to produce some of the documents requested by the Appellants, but not the documents related to the meeting held by the Executive Committee of the FRF on 30 January 2024.

79. The Panel notes that Pursuant to Article R44.3 of the CAS Code, which is also applicable in appeal proceedings, a party can request the CAS panel to order the other party to produce documents in its custody or under its control, if the party seeking such an order can demonstrate that the documents in question are likely to exist and are relevant to the case.

80. The Panel notes that the requested documents are the amended article/rule and minutes/agenda from three meetings of the FRF Executive Committee. In accordance with the Article R44.3 of the CAS Code and CAS jurisprudence, a party can request the CAS panel to order the other party to produce documents in its custody or under its control, if the party seeking such an order can demonstrate that the documents in question are likely to exist and are relevant to the case.

81. The Panel holds that all the requested documents are likely to exist, in FRF’s custody and relevant to the case. Consequently, the requirements for the Panel to order FRF to produce the said documents are met.

82. Consequently, the Panel concludes that the Appellants’ requests for the Panel to order FRF to produce additional evidence shall be granted.

B. Rapid’s request for a second round of submissions

83. On 19 January 2026 Rapid requested a second round of submissions to allow the Appellants to rebut FRF’s arguments in its Answer that the Appealed Decision is based on national law.

84. On 19 January 2026 FRF objected to Rapid’s request for an additional round of written submissions. Consequently, pursuant to Article R56 of the CAS Code, Rapid’s request for a second round of submissions may only be admitted on the basis of exceptional circumstances.

85. The Panel notes that Rapid has failed to establish exceptional circumstances based on which a second round of submissions may be admitted and further holds that the Appellants may rebut the claims and arguments presented in FRF’s Answer in the hearing.

86. Consequently, the Panel concludes that Rapid’s request for an additional round of written submissions is rejected.

C. Rapid’s request to file new evidence

87. On 22 January 2026, Rapid submitted new evidence in the form of a referral of unconstitutionality submitted by the Romanian president to Romania's Constitutional Court and requested that the evidence should be admitted to the case file.

88. On the same day, on 22 January 2026, FRF objected to Rapid’s request to admit new evidence. Consequently, pursuant to Article R56 of the CAS Code, the new evidence filed by the Respondent may only be admitted on the basis of exceptional circumstances.

89. The Panel notes that the document in question appears to be the opinion of the Romanian president regarding Law no. 69/2000 on Physical Education and Sports, which addresses, inter alia, participation share of Romanian performance athletes in official national sports competitions. The Panel notes that the referral is not an expert opinion, and that Romania's Constitutional Court may or may not conclude that the mentioned law is constitutional in accordance with the referral. As such, the Panel holds that the referral is not relevant to the case at hand.

90. Having taken into consideration the Parties’ arguments, the Panel finds that Rapid has failed to establish exceptional circumstances based on which the evidence filed on 22 January 2026 should be admitted to the case file.

91. Against this background, Rapid’s request to admit to the case the new evidence submitted on 22 January 2026 is dismissed.

D. Consolidation of the two proceedings

92. In accordance with Article R52 paragraph 5 of the CAS Code, the Panel may decide to consolidate two procedures if the appeal concerns a decision which is the subject of a pending appeal before CAS.

93. The Panel notes that two Statements of Appeal were submitted by the Appellants on 16 and 17 June 2025 respectively.

94. In accordance with CAS jurisprudence, CAS proceedings may be consolidated if the identity of the parties, the identity of applicable rules and the identity of the underlying legal relationship are the same, as held by the panel in CAS 2020/A/6921 & 7297 (paragraph 135 et seq.).

95. There may be good reasons for consolidating CAS proceedings, as held by MAVROMATI/REEB, The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials, 2025, p. 508):

“Consolidation of the proceedings may be interesting in terms of promoting the efficiency and reducing the costs of related proceedings. Furthermore, a consolidation of proceedings avoids the risk of contradictory judgements”.

96. FRF’s objection to consolidate the two cases is based on an assumption that appeals concern two different decisions from FRF Executive Committee, that the time limit to challenge the decision runs from different dates and that the Appellants’ requests for relief differ.

97. The Panel holds that the appeals concern the same decision. The Panel further notes that the time limit to file the Statement of Appeal was 21 days from 27 May 2025, and that both Statements of Appeals were submitted within the deadline. The Panel further notes that the Appellants’ requests for relief to a large degree coincide.

98. The Panel holds that it is reasonable to consolidate these procedures, as they concern the same decision, and because the Panel's assessment and the consequences of the outcome for the Parties will be very similar. As such, it will be procedural efficient to consolidate the two cases.

99. Against this background, the Panel concludes that the proceedings in the cases CAS

IX. MERITS — A. The Main Issues

100. The primary claim raised by the Appellants is that the 5+6 Rule is incompatible with fundamental principles of EU law, in particular Article 18 TFEU (general prohibition of discrimination on grounds of nationality), Article 45 TFEU (principle of free movement of workers), and Articles 101 and 102 TFEU (competition within the EU internal market). In this regard, the Panel must assess if FRF’s conduct falls under the scope of EU law, i.e. to which extent FRF is responsible for implementing the 5+6 Rule in light of national legislation.

101. Furthermore, FRF claims that the Panel is bound by the principle of res judicata, partly due to the findings in the Order on Request for a Stay, and partly as recent cases in which clubs or individuals lodged disputes against the Order had a resolution before the Romanian domestic courts.

102. Consequently, the main issues to be resolved by the Panel are:

i. Is the principle of res judicata applicable to the case at hand?

ii. Does FRF’s conduct fall under the scope of EU law?

iii. Is the 5+6 Rule compatible with Articles 18 and 45 TFEU?

iv. Is the 5+6 Rule compatible with Article 101 TFEU?

v. Is the 5+6 Rule compatible with Article 102 TFEU?

B. LPF’s standing to be sued

103. LPF claims that it has been erroneously named as a respondent in these arbitration proceedings, indicating that it does not have standing to be sued.

104. The question of who has standing to be sued is a question of the merits, implying that if LPF’s standing to be sued is denied, then the appeal must be dismissed with respect to LPF. According to CAS doctrine “a party has standing to be sued only if it has some stake in the dispute because something is sought against it, and is personally obliged by the disputed right at stake” (MAVROMATI/REEB, The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials, Second Edition 2025, p. 451).

105. This approach is confirmed by CAS jurisprudence, for example CAS 2020/A/7144 paragraph 85, where the sole arbitrator stated:

“a party has standing to be sued only if it is personally obliged by the claim brought by an appellant.”

106. The Panel notes that Craiova and the Player, in point 5 of their requests for relief, request CAS to “order the LPF to refrain from implementing and/or enforcing the Appealed Decision against the Appellants for the ongoing football season 2025 -26 and thereafter”.

107. As LPF is the entity in charge of organizing and managing the highest professional football league in Romania, the outcome of the present appeal arbitration proceeding may influence how LPF will organize the highest professional football league, i.e. if it shall implement the 5+6 Rule. Indeed, the presence of the LPF as a party in these proceedings is a mandatory prerequisite for the Panel to rule on point 5 of Craiova and the Player requests for relief.

108. Consequently, the Panel finds that the LPF has standing to be sued.

C. FRF’s claim that the principle of res judicata applies to the case at hand

109. The Panel notes that FRF contends that the principle of res judicata must be applied as the Deputy President of the Appeals Arbitration Division, in the Order on Request for a Stay, acknowledged that the 5+6 Rule was compliant with Article 45 TFEU. In this regard, the Panel notes that the Order on Request for a Stay solely addresses whether the three cumulative requirements for the grant of a stay were met, i.e. irreparable harm, likelihood of success on the merits of the appeal and balance of interests, and that the issue of whether 5+6 Rule was compliant with Article 45 TFEU is not considered by the Deputy President of the Appeals Arbitration Division, in the Order on Request for a Stay. On the contrary, the Order on Request for a Stay explicitly states as follows:

“the Appellants’ allegation that the Rule imposed by the Appealed Decision is contrary to the European Law and, specifically, to the freedom of movement is a matter which is inherent to the merits of this appeal. Therefore, this issue shall be decided by the Panel in the final Arbitral Award.”

110. Consequently, the Panel holds that the Order on Request for a Stay does not have res judicata effect on the present appeal.

111. Furthermore, FRF contends that the principle of res judicata has to be applied as several court cases already dealt with the legality of the Order. In this respect, FRF has referred to three disputes allegedly being resolved by Romanian national courts.

112. The Panel notes that FRF has failed to provide English translations of the three disputes allegedly being resolved by Romanian national courts, and that it therefore is not possible for the Panel to consider to what extent the alleged disputes are relevant to the case at hand.

113. Notwithstanding the above, the Panel holds that the decisions referred to by FRF raise no res judicata effects on the case at hand. In this regard, in CAS 2021/A/7915, the sole arbitrator stated as follows (paragraph 82):

“The question of res judicata is, in principle, a procedural question that is governed by the lex fori, i.e., Swiss law. Under Swiss law, the negative effect of res judicata can be invoked if the claim at issue is identical to the one that has already been adjudicated with final effect (BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 4th ed. 2021, no. 1648a). There is identity within the above meaning in case there is both identity of the parties and of the subject matter (BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 4th ed. 2021, no. 1648a). According to the jurisprudence of the Swiss Federal Tribunal (“SFT”) the “subject matter of the dispute is determined by the individualized claims and by the facts invoked in support of it” (SFT 136 III 123, consid. 4.3.1).”

114. The Panel concurs with the considerations of the sole arbitrator in the abovementioned case, and notes that, based on FRF’s summary of the facts and findings in the awards referred to by FRF, the subject matters, individualized claims and the facts of those disputes are clearly different from those in the case at hand, inter alia, because the parties are not the same.

115. Against this background, the Panel holds that FRF’s claim that the principle of res judicata has to be applied as several court cases already dealt with this legal issue must be dismissed.

D. The 5+6 Rule and compatibility with EU law

i. The content of the 5+6 Rule and the autonomy of FRF

116. As noted above, the Appellants claim that the 5+6 Rule is incompatible with fundamental principles of EU law, in particular Articles 18, 45, 101 and 102 TFEU.

117. Accordingly, the Panel will review if the 5+6 Rule is legitimate within the meaning of TFEU and case law from CJEU, in particular in relation to Articles 18, 45, 101 and 102 TFEU.

118. The Panel notes that the Appealed Decision refers to a version of the 5+6 Rule “debated in the previous meeting of the Executive Committee”. As such, it is not entirely clear which version of the 5+6 Rule that was approved in the Appealed Decision. However, the Panel holds that the wording of the 5+6 Rule approved by the FRF Executive Committee must be seen in connection with the letter sent by FRF on 24 April 2025 to all the clubs in the top two divisions for men. Consequently, the Panel holds that the wording of the 5+6 Rule approved by the FRF Executive Committee is the same as sent in the abovementioned letter. In essence, the 5+6 Rule consist of the following components:

- A minimum of five nationally trained players eligible for Romania’s national teams, including at least one U21 player, shall participate in a match. U21 players, other than the mandatory one, shall count double towards the requirement.

- The 5+6 Rule applies to at least 75% of the matches during a season of League 1 and the Romanian Cup.

- The sanction applicable for non-compliance with the 5+6 Rule will be a fine of EUR 150,000.

119. With regards to the 5+6 Rule’s requirement that a minimum of five players participating in a match shall be eligible for Romania’s national teams, the Panel notes that eligibility for participating in national teams is regulated in Chapter IV, Article 6 of the FIFA Regulations Governing the Application of the Statutes (May 2024 edition), which states, inter alia, as follows:

“ELIGIBILITY TO PLAY FOR REPRESENTATIVE TEAMS

6 Principles

1. Any person holding a permanent nationality that is not dependent on residence in a certain country is eligible to play for the representative teams of the Association of that country.

2. There is a distinction between holding a nationality and being eligible to obtain a nationality. A player holds a nationality if, through the operation of a national law, they have:

(a) automatically received a nationality (e.g. from birth) without being required to undertake any further administrative requirements (e.g. abandoning a separate nationality); or

(b) acquired a nationality by undertaking a naturalisation process. (…)”

120. In other words, in order to be eligible to play for a national team, a player must formally hold the nationality of the country he or she wants to represent.

121. Furthermore, the concept of “nationally trained players” is regulated in Article 45 ROAF, which states, inter alia, as follows:

“Article 45 | Players

Definitions

- Nationally trained players - players who, regardless of citizenship, have been registered and have participated in competitions for a club in Romania for at least 3 years (consecutive or not) between the ages of 12 and 21.

Players who are to meet the 3-year requirement during the competitive season for which they were listed on the team's A or B list will also be considered to have been trained at the national level. Players who need more than one competitive season to meet the 3-year requirement do not benefit from this exception.

Also, players of Romanian nationality will be considered as having been trained at the national level, regardless of the date of registration with a club in Romania and/or the duration of participation in football competitions in Romania.”

122. As such, players with Romanian nationality will be considered as “nationally trained” regardless of whether they previously have been registered with Romanian clubs.

123. The Panel notes that the requirement in the 5+6 Rule that a minimum of five players must be nationally trained is redundant. This is because the same provision requires those players to hold a Romanian nationality which inherently satisfies the criterion of being nationally trained.

124. Consequently, the Panel considers that the practical effect of the 5+6 Rule is that, in at least 75% of the matches in a League 1 season and the Romanian Cup, each team must field a minimum of five Romanian nationals, including at least one U21 player. U21 players, other than the mandatory one, shall count double towards the requirement.

125. The Panel further notes that the 5+6 Rule must be seen in connection with the Order and the Instructions issued by the Ministry of Youth and Sports in Romania.

126. CJEU case law points out that an undertaking will be responsible for ensuring that its decisions comply with EU law if the conduct of the undertaking is initiated by itself, or if the undertaking exercises autonomous discretion in adopting national legislation. In joined cases C-359/95 P and C-379/95 (Ladbroke Racing), CJEU noted as follows: (paragraph 33):

“Articles 85 and 86 of the Treaty apply only to anti-competitive conduct engaged in by undertakings on their own initiative (see to that effect, as regards Article 86 of the Treaty, Case 41/83 Italy v Commission [1985] ECR 873, paragraphs 18 to 20; Case C- 202/88 France v Commission - the so-called `telecommunications terminals' judgment - [1991] ECR I-1223, paragraph 55; and Case C-18/88 GB-Inno-BM [1991] ECR I- 5941, paragraph 20). If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86 do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings”

127. A similar view was taken by CJEU in case C-198/01 (CIF), where it stated as follows (paragraph 56):

“if a national law merely encourages, or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC and may incur penalties, including in respect of conduct prior to the decision to disapply that national law”

128. According to the case law of the CJEU (CIF, C-198/01, paragraph 53; Ladbroke Racing, C-359/95 P, paragraph 33), the conduct of a private operator is attributable exclusively to the Member State only where national legislation precludes undertakings from

engaging in autonomous conduct which prevents, restricts or distorts competition. Consequently, it is necessary for the Panel to assess whether the 5+6 Rule was initiated by FRF itself, or if FRF exercised autonomous discretion in adopting the 5+6 Rule. If that is the case, FRF is liable for the implementation of the 5+6 Rule under the TFEU. However, if it were determined that the FRF was left no room whatsoever by the Romanian Government in implementing the 5+6 Rule as it did, the primary liability rests with the Member State. In the latter scenario, FRF would merely be the executing arm of the Member State and cannot be held liable.

129. The Panel finds that the implementation of the 5+6 Rule was clearly not the initiative of FRF. By enacting the Order/Instructions, the Romanian Government was at the origin of what eventually transpired into the 5+6 Rule as implemented by FRF.

130. The Panel finds it relevant that, in doing so, the Romanian Government did not simply order FRF to implement a rule without affording FRF any discretion. Article 8 of the Instructions granted FRF a certain discretion when implementing the Order/Instructions in its regulations:

“Article 8. National sports federations have the obligation to comply with the provisions of their statutes, constitutive acts, and internal regulations, as well as with the normative acts relevant to the federation’s field of activity, when determining the quota provided for in Article 6.”

131. The Order/Instructions set a minimum quota objective (40% Romanian citizens) but delegated the execution to the various domestic sports governing bodies, such as the FRF.

132. In the matter at hand, the differences between the Order/Instructions on the one hand and the 5+6 Rule as implemented by the FRF on the other demonstrate that the FRF exercised its own discretion on all substantive aspects of the 5+6 Rule. In the absence of a State regulation prescribing precisely these choices, the 5+6 Rule constitutes an autonomous act of the FRF, and as such is subject to review for compatibility with Articles 45 and 101 TFEU.

133. More concretely, the content of the 5+6 Rule differs from the Order and the Instructions. Whilst the Instructions state that “participation quota of Romanian performance athletes, at senior and youth levels, in official national sports competitions may not be lower than 40% of the total number of athletes who may take part on the field during a match, for each team” the 5+6 Rule states, in principle, as noted above, that a minimum of five Romanian nationals, including at least one U21 player, shall participate in at least 75% of the matches during a season. Furthermore, U21 players, other than the mandatory one, shall count double towards the requirement. Moreover, the 5+6 Rule solely applies to two competitions, the League 1 and the Romanian Cup, both for men, whilst the Order and Instructions apply to all official national competitions on senior and youth levels for men and women.

134. The Panel notes that the discrepancies between the Order/Instructions and the 5+6 Rule reveals that FRF has exercised meaningful autonomy when determining the content of

the 5+6 Rule. An interesting feature in this respect is that FRF did not strictly comply with the requirements set by the Order/Instructions. Rather, the FRF implemented features that are less stringent than required and therefore partially acted in defiance of the Order/Instructions, rendering the infringement of the TFEU, if any, less significant than in the scenario where the FRF would have complied with the Order/Instructions.

135. The Panel however finds that even if the 5+6 Rule as implemented by the FRF departed from the minimum requirements set by the Order/Instructions, and is therefore less restrictive than what was required, this is not determinative for the question of whether the FRF can be held liable. The decisive question is whether the FRF exercised discretion in implementing the 5+6 Rule and the Panel finds that this is the case. The FRF’s deviation from the statutory minimum is itself an autonomous choice. Rather than passively executing a legislative mandate, the FRF has independently determined which requirements to impose, arrived at a standard that differs from the national legal framework, and applied that standard in a way that may still restrict free movement.

136. FRF’s non-compliance with national law does not protect it from potential liability under the TFEU and FRF’s liability under the TFEU is not absorbed or displaced by the Order/Instructions.

137. Consequently, the 5+6 Rule as implemented by the FRF is subject to review under EU law.

ii. The 5+6 Rule and Articles 18 and 45 TFEU

138. The Panel will first assess whether the 5+6 Rule is compatible with Articles 18 and 45 TFEU, which read as follows:

“Article 18

Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”

“Article 45

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.”

139. The Panel notes that Articles 18 and 45 TFEU both prohibit discrimination on grounds of nationality. Article 18 TFEU is to be applied in instances where no other specific rights of non-discrimination exist, and operates mainly as a general provision, in the sense that it applies when the TFEU does not contain a more specific non-discrimination rule. Article 45 TFEU provides a specific prohibition on discrimination based on nationality, securing free movement of workers between EU Member States. Consequently, in accordance with the principle of lex specialis, the Panel holds that in the case at hand, FRF’s alleged violation of EU law concerning discrimination based on nationality primarily shall be assessed in relation to Article 45 TFEU.

140. Article 45 TFEU establishes that freedom of movement for workers shall be secured within the EU and that discrimination on grounds of nationality shall be prohibited. The Panel notes that professional football players fall under Article 45 TFEU’s definition of “workers”. In accordance with paragraph 3, the principle may only be limited by justified grounds of public policy, public security or public health.

141. CJEU case law distinguishes between direct and indirect discrimination. In Case C‑132/22 (BM and NP) CJEU stated as follows (paragraph 27 et seq.):

“27 Furthermore, it should be recalled that Article 45(2) TFEU states that freedom of movement for workers requires the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment (see, to that effect, judgment of 28 April 2022, Gerencia Regional de Salud de Castilla y León, C-86/21, EU:C:2022:310, paragraph 29 and the case-law cited).

28 It should be recalled, in that regard, that the principle of equal treatment laid down in Article 45 TFEU prohibits not only direct discrimination on the ground of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, judgment of 28 April 2022, Gerencia Regional de Salud de Castilla y León, C-86/21, EU:C:2022:310, paragraph 30 and the case-law cited).

29 In that context, the Court has stated that a provision of national law, even if it applies to all workers regardless of nationality, must be regarded as indirectly discriminatory if it is intrinsically liable to affect workers who are nationals of other Member States more than national workers and if there is a consequent risk that it will place the worker from a different Member State at a particular disadvantage, unless it is objectively justified and proportionate to the aim pursued (judgment of

28 April 2022, Gerencia Regional de Salud de Castilla y León, C-86/21, EU:C:2022:310, paragraph 31 and the case-law cited).

30 In order for a measure to be treated as being indirectly discriminatory, it is not necessary for it to have the effect of placing at an advantage all the nationals of the State in question or of placing at a disadvantage only nationals of other Member States but not nationals of the State in question (judgment of 28 April 2022, Gerencia Regional de Salud de Castilla y León, C-86/21, EU:C:2022:310, paragraph 32 and the case-law cited).”

142. In other words, a provision of national law, or rule passed by a sporting association, must be regarded as indirectly discriminatory if such provision or rule is “intrinsically liable to affect” EU nationals more than nationals of the Member State concerned, where there is a risk that it will place the EU nationals at a particular disadvantage, unless the provision is objectively justified and proportionate to the legitimate aim pursued.

143. In the European Commission Staff Working Document, “Sport and Free Movement” published on 18 January 2011 it is stated as follows (page 3):

“professional sportspeople fall within the scope of Article 45 TFEU implies that any direct discrimination on grounds of nationality is prohibited, and that any indirect discrimination and obstacles impeding the exercise of the right to free movement which are not justified, necessary and proportionate to the legitimate aim pursued must be abolished.”

144. Furthermore, the same document addresses direct discrimination in relation to quotas based on nationality (page 3 et seq.):

“Rules leading to direct discrimination on grounds of nationality are not compatible with EU law. Direct discrimination may, for instance, take the form of a complete ban on the participation in sporting competitions of EU citizens from other Member States. It may also stem from the introduction of quotas based on nationality. The ECJ has held that the fact that such rules or quotas may not concern the employment as such of EU players but rather the extent to which their club may field them for an official match is of no relevance in order to determine the discriminatory nature of the rules. In so far as participation in official matches constitutes the essential activity of professional players, any rule limiting such participation also restricts the employment opportunities of the players concerned. The only grounds for exceptions in cases of direct discrimination are those listed in Article 45 TFEU (public policy, public security or public health).”

145. As held by CJEU in C-415/93 (Bosman), Article 45 TFEU “applies to rules laid down by sporting associations which determine the conditions under which professional sports players may engage in gainful employment” (paragraph 116). Furthermore, in the same case CJEU stated that the intention of Article 45 TFEU is to “preclude measures which might place Community citizens at a disadvantage when they wish

to pursue an economic activity in the territory of another Member State” (paragraph 94).

146. As noted above, the 5+6 Rule implies that a minimum of five Romanian nationals, including at least one U21 player, shall participate in at least 75% of the matches during a season, and that U21 players, other than the mandatory one, shall count double towards the requirement.

147. In accordance with Article 19bis of ROAF, clubs shall present a list of 25 players that will be eligible to participate in competitions organized by LPF. The Panel holds that the 5+6 Rule will force Romanian football clubs competing in League 1 to employ a certain number of Romanian football players to ensure that they will be able to comply with the requirements. As Article 19bis of ROAF caps the number of players that will be eligible to participate in competitions organized by LPF at 25, the 5+6 Rule limits the number of positions on the player list for foreign players, including players from the EU.

148. In the Bosman case CJEU stated as follows regarding EEC Treaty Article 48 (now Article 45 TFEU) (paragraph 118 et seq.):

“118 That provision has been implemented, in particular, by Article 4 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968(II), p. 475), under which provisions laid down by law, regulation or administrative action of the Member States which restrict by number or percentage the employment of foreign nationals in any undertaking, branch of activity or region, or at a national level, are not to apply to nationals of the other Member States.

119 The same principle applies to clauses contained in the regulations of sporting associations which restrict the right of nationals of other Member States to take part, as professional players, in football matches (see the judgment in Donà, cited above, paragraph 19).

120 The fact that those clauses concern not the employment of such players, on which there is no restriction, but the extent to which their clubs may field them in official matches is irrelevant. In so far as participation in such matches is the essential purpose of a professional player's activity, a rule which restricts that participation obviously also restricts the chances of employment of the player concerned.

149. In other words, regulations at national level that restrict the percentage of EU nationals that may be employed, including sports regulations that restricts the right of professional players to take part in official matches, fall under the scope of Article 45 TFEU.

150. The Panel holds that the 5+6 Rule clearly imposes a restriction on the employment possibilities of EU players as it, if implemented, reduces employment possibilities of EU players. The remaining number of positions on the player lists of Romanian clubs are limited as a certain number of positions on the list are, in principle, allocated to

Romanian players. Furthermore, the 5+6 Rule allocates a certain number of positions on the pitch to Romanian nationals, and, as such, limits the possibilities for non- Romanian players, including EU nationals, to participate in official matches. As such, the 5+6 Rule constitutes an advantage for Romanian players to the disadvantage of foreign players, including players from the EU. The Panel holds that the restriction on the employment possibilities of EU players as a consequence of the 5+6 Rule constitutes direct discrimination that falls under the scope of Article 45 TFEU.

151. Direct discrimination is, pursuant to Article 45 TFEU, prohibited, unless the conduct constitutes a proportionate measure to pursue one of the exceptions listed in Article 45(3) TFEU, i.e. public policy, public security or public health.

152. Neither public security nor public health is relevant as exceptions in the case at hand. However, FRF contends that the 5+6 Rule is justified on the basis of public policy. In this regard, the Panel notes that it is for the party that introduced the measures, in the case at hand FRF, to demonstrate that the requirements for an exception based on public policy are met.

153. The concept of public policy has been addressed by CJEU. In C-30/77 CJEU stated as follows (paragraph 35):

“In so far as it may justify certain restrictions on the free movement of persons subject to community law, recourse by a national authority to the concept of public policy presupposes , in any event , the existence , in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.“

154. As such, a justification based on public policy grounds may only be valid when there is a ‘genuine, present and sufficiently serious threat to one of the fundamental interests of society”.

155. The main intended objective of the 5+6 Rule is, as stated in the media release published by FRF on 24 April 2025, “to train Romanian players to be competitive against any opponents and to take the step towards top clubs in Europe and to increase the selection pool for the Romanian national teams.” The Panel holds that the intended objective of the 5+6 Rule does not constitute a serious threat to a fundamental interest of society, and, as such, that the 5+6 Rule cannot be justified on the basis of public policy.

156. Notwithstanding the above, the Panel observes that in the Bosman case CJEU, having concluded that an obstacle pursuant to Article 45 TFEU had been established, noted, in relation to its assessment of whether the obstacle could be justified, as follows (paragraph 137):

“137 It follows from the foregoing that Article 48 of the Treaty [Article 45 TFEU] precludes the application of rules laid down by sporting associations under which, in

matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.”

157. In the light of the foregoing considerations, the Panel holds that the 5+6 Rule constitutes direct discrimination and that the requirements for the exceptions listed in Article 45(3) TFEU are not met. Consequently, the 5+6 Rule constitutes a breach of Article 45 TFEU.

iii. The 5+6 Rule and Article 101 TFEU

158. The Appellants contend that the 5+6 Rule also is incompatible with Article 101 TFEU, which reads as follows:

“1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

- any agreement or category of agreements between undertakings,

- any decision or category of decisions by associations of undertakings,

- any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.”

159. In short, Article 101 TFEU prohibits agreements, decisions and concerted practices between undertakings which may affect trade between EU Member States and which have the object or the effect of preventing, restricting or distorting competition. If a conduct falls under the scope of Article 101(1) TFEU, agreements or decisions shall be void as per Article 101(2), unless an exception is provided in Article 101(3).

160. The Panel notes that, pursuant to Article 101 TFEU a national association, such as the FRF, may be considered as an association of undertakings, and that a decision of such an association of undertakings that may have a direct impact on the conditions in which the economic activity is exercised by undertakings which are directly or indirectly members thereof, falls under the scope of Article 101 TFEU as confirmed by CJEU in Case C-650/22 (Diarra, paragraph 118):

“118 Article 101(1) TFEU applies to FIFA in its capacity as an association having as members national football associations which can themselves be categorised as ‘undertakings’ inasmuch as they carry on an economic activity related to the organisation and marketing of interclub football competitions at national level and the exploitation of the rights related thereto, or themselves have, as members or affiliates, entities which, like football clubs, may be categorised as such (judgments of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 115, and of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 79).

119 The application of Article 101(1) TFEU in a situation involving entities such as FIFA entails proving the existence of an ‘agreement’, ‘concerted practice’ or ‘[decision by an association] of undertakings’, which themselves may be of different kinds and present in different forms. In particular, a decision of an association consisting in adopting or implementing rules having a direct impact on the conditions in which the economic activity is exercised by undertakings which are directly or indirectly members thereof may constitute such a ‘[decision by an association] of undertakings’ within the meaning of that provision (judgment of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 118 and the case-law cited).

120 In the present case, as follows from the statements provided in the order for reference and from paragraph 81 of the present judgment, it is with regard to those kinds of decisions that the referring court questions the Court about the interpretation of Article 101(1) TFEU, namely those consisting, for FIFA, in having adopted and implemented or being capable of implementing a set of rules relating to the employment contracts and transfers of players.

121 Such decisions by associations of undertakings therefore come under Article 101(1) TFEU.”

161. In the Diarra case CJEU further confirmed that rules that regulate football players’ employment contracts or transfers have an impact of economic activities, and as such, fall under the scope of Article 101 TFEU (paragraph 81):

“since the composition of the teams constitutes one of the essential parameters of the competitions in which professional football clubs compete and those competitions give rise to an economic activity, rules such as those at issue in the main proceedings, whether they relate to the employment contracts or to the transfers of players, must also be regarded as having a direct impact on the conditions for engaging in that economic activity and on competition between the professional football clubs engaged in that activity (see, by analogy, judgment of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 61).”

162. The Panel holds that the 5+6 Rule shall be considered as a decision of an association of undertakings that, in principle, may fall under the scope of Article 101 TFEU.

163. However, in accordance with CJEU case law, and a notice from the EU Commission, “Commission Notice on the definition of the relevant market for the purposes of Union competition law” (C/2024/1645) (“the EU Commission Notice”), it is required that the effect on trade must be noticeable in the relevant product market and geographic market in order for a decision to fall under the scope of Article 101(1) TFEU. The EU Commission Notice defines product and geographical markets as follows (paragraph 12):

“(a) The relevant product market comprises all those products that customers regard as interchangeable or substitutable to the product(s) of the undertaking(s) involved, based on the products’ characteristics, their prices and their intended use, taking into consideration the conditions of competition and the structure of supply and demand on the market.

(b) The relevant geographic market comprises the geographic area in which the undertakings involved supply or demand relevant products, in which the conditions of competition are sufficiently homogeneous for the effects of the conduct or concentration under investigation to be able to be assessed, and which can be distinguished from other geographic areas, in particular because conditions of competition are appreciably different in those areas.”

164. Applying these principles to the case at hand, the Panel holds that the 5+6 Rule is likely to affect the upstream market which constitutes the market for buying and selling rights to employ football players, in other words the transfer market for football players, and also the downstream market, i.e. the clubs’ competitiveness in interclub football competitions.

165. The relevant geographical market, within the scope of the EU Commission Notice is the territory covered by the 5+6, i.e. Romania, but also the territory in which such the 5+6 Rule produces its effects, i.e. the European Union.

166. Regarding the question of whether the 5+6 Rule is a decision that may affect trade between EU Member States, the Panel holds, as noted above, that the 5+6 Rule may impose a restriction on the employment of EU players, since the number of positions on the player lists and on the pitch will be limited as a certain number of positions on the list and the pitch are, in principle, allocated to Romanian players.

167. As regards the restriction of competition, the Panel observes that the CJEU noted as follows in Case C-680/21 (Royal Antwerp) in relation to rules regarding home grown players (paragraph 107):

“the content of those rules that they limit or control one of the essential parameters of the competition in which professional football clubs may engage, namely the recruitment of talented players, whatever the club or place where they were trained, which could enable their team to win in the encounter with the opposing team. From that point of view, the Belgian government rightly added that that limitation is likely to have an impact on the competition in which the clubs may engage, not only in the ‘upstream or supply market’, which, from an economic point of view, is constituted by the recruitment of players, but also in the ‘downstream market’, which, from the same point of view, is constituted by interclub football competitions.”

168. Furthermore, as regards the categorisation of the rules requiring clubs to have a minimum quota of “home-grown players” in their teams as a decision by an association of undertakings having as its “object” or “effect” the restriction of competition, in the Royal Antwerp case the CJEU held that it must be taken into account (a) the content of those rules and to determine whether they limit, to a sufficient extent to conclude that they present a degree of harm enabling them to be categorised as anticompetitive by object; (b) the access of professional football clubs to the ‘resources’ essential to their success which, from an economic point of view, the players already trained are, by requiring them to recruit a minimum number of players trained nationally, to the detriment of the cross-border competition in which they could normally engage by recruiting players trained within other national football associations. The proportion of players concerned is, from that point of view, particularly relevant; (c) the economic and legal context in which the rules at issue in the main proceedings were adopted, together with the specific characteristics of football, and to assess whether or not the adoption of those rules had the objective of restricting the clubs’ access to those resources, of partitioning or re-partitioning markets according to national borders or of making the interpenetration of national markets more difficult by establishing a form of “national preference”.

169. Applying the analytical framework developed by the CJEU in the case Royal Antwerp to the 5+6 Rule leads to the conclusion that the latter is to be characterised as a restriction of competition by object under Article 101 TFEU.

170. As a preliminary point, the CJEU emphasised that rules governing professional football may fall within the scope of EU competition law where they affect one of the essential parameters of competition between clubs, namely the recruitment of players. In the present case, the 5+6 Rule directly interferes with that parameter by requiring clubs to field a minimum number of Romanian players. Unlike the UEFA Home-Grown Player Rule, which is based on training criteria and operates at the level of squad composition, the 5+6 Rule is explicitly nationality-based and applies at the level of the starting lineup. It therefore constitutes a more direct and restrictive constraint on clubs’ freedom to recruit and select players.

171. In line with paragraph 109 of the Royal Antwerp ruling, it is necessary to assess whether the rule limits access to resources essential to sporting success to a sufficient degree. In this respect, players constitute a key input in professional football, and any rule restricting access to a broader pool of talent is liable to affect competitive dynamics. The 5+6 Rule obliges clubs to rely extensively on national players, thereby reducing their ability to recruit foreign-trained players who might enhance team performance. Moreover, the proportion imposed - five out of eleven players - is particularly significant and cannot be regarded as merely incidental. Such a requirement is therefore capable of substantially restricting access to the international talent pool and, consequently, of limiting the competitive opportunities available to clubs.

172. The economic and legal context, as highlighted by the CJEU in paragraph 110 of the Royal Antwerp ruling, further reinforces this conclusion. The 5+6 Rule introduces a clear form of national preference by favouring Romanian players over those trained in other Member States. In doing so, it risks partitioning the market along national lines and restricting the cross-border mobility of players. This is precisely the type of market segmentation that the Court identified as indicative of a restriction by object, insofar as it may hinder the interpenetration of national markets and reintroduce barriers based on nationality within the internal market.

173. In addition, the rule is liable to produce effects both upstream and downstream, as described in paragraph 108 of Royal Antwerp. Upstream, it restricts clubs’ ability to access the broader European labour market for professional players. Downstream, it may distort the competitive balance of interclub competitions by constraining team selection and potentially lowering the overall level of performance. These combined effects underscore the structural impact of the rule on the competitive process.

174. In light of these considerations, the 5+6 Rule, by its very nature, reveals a sufficient degree of harm to competition to be classified as a restriction by object under Article 101 TFEU. This conclusion is reinforced by the fact that, compared to the UEFA Home- Grown Player Rule, the 5+6 Rule is both more rigid and explicitly based on nationality, thereby more closely aligning with the types of restrictions that EU law has traditionally regarded as particularly harmful.

175. Such a view concurs with CJEU case law. In the case Royal Antwerp, CJEU stated as follows: (paragraph 95):

“In particular, the Court has repeatedly held that agreements aimed at partitioning markets according to national borders, tending to restore the partitioning of national markets or making the interpenetration of national markets more difficult, may be such as to frustrate the objective of the EU and FEU Treaties to achieve the integration of those markets through the establishment of the internal market and that they must, for that reason, be categorised, in principle, as agreements that have as their ‘object’ the restriction of competition within the meaning of Article 101(1) TFEU.”

176. As such, the Panel holds that the 5+6 Rule is a decision that likely affects trade between EU Member States, and which has as its object to restrict competition within the internal market. As such, the 5+6 Rule falls under the scope of Article 101(1) TFEU.

177. CJEU case law has indicated that conduct that falls under the prohibitions regulated in Article 101(1) TFEU may not constitute a breach if the restrictive effects are inherent in the pursuit of those objectives and proportionate to them. However, the Panel notes that such exception may only be applicable when a measure is restrictive by effect, and that when a measure constitutes restriction by object no such exception may be admitted (CJEU, case C-333/21, European Superleague, paragraph 185).

178. Since the Panel has concluded that the 5+6 Rule constitutes a decision capable of affecting trade between EU Member States and has as its object the restriction of competition within the internal market, it follows that the “inherency” test is not applicable. Furthermore, there is no need to examine the effects of the rule, as restrictions by object do not require an assessment of their actual or potential effects.

179. Restrictions by object that fall under the scope of Article 101(1) TFEU may still be justified in accordance with Article 101(3) TFEU, if four cumulative conditions are satisfied. The conduct must:

1) contribute to improve the production or distribution of goods or to promote technical or economic progress;

2) allow consumers to receive a fair share of the resulting benefit;

3) only restrictions which are not indispensable to the attainment of the objectives of the conduct, and;

4) not lead to eliminating competition in respect of a substantial part of the products in question.

180. With regards to the first condition, the Panel notes that the burden of proof rests on the undertaking, invoking the benefit of the exception rule, i.e. on FRF, as stated in the “Commission Guidelines on the application of Article 81(3) of the Treaty” paragraph 41. Furthermore, the same guidelines state as follows (paragraph 50 and 51):

«50. The purpose of the first condition of Article 81(3) is to define the types of efficiency gains that can be taken into account and be subject to the further tests of the second and third conditions of Article 81(3). The aim of the analysis is to ascertain what are the objective benefits created by the agreement and what is the economic importance of such efficiencies. Given that for Article 81(3) to apply the pro-competitive effects flowing from the agreement must outweigh its anticompetitive effects, it is necessary to verify what is the link between the agreement and the claimed efficiencies and what is the value of these efficiencies.

51. All efficiency claims must therefore be substantiated so that the following can be verified:

(a) The nature of the claimed efficiencies;

(b) The link between the agreement and the efficiencies;

(c) The likelihood and magnitude of each claimed efficiency; and

(d) How and when each claimed efficiency would be achieved.»

181. The Panel notes that although FRF has indicated that the 5+6 Rule may contribute to improving recruitment and player development of Romanian players, which, in principle, may serve as a measure that falls under the scope of the first condition, it has not substantiated such efficiency claims, or showed that the efficiency claims outweigh its anti-competitive effects.

182. The Panel holds that FRF has failed to prove that the 5+6 Rule is capable of generating genuine efficiency gains, or that alleged efficiency gains outweigh its anticompetitive effects. Furthermore, the Panel holds that FRF has failed to prove that the other three cumulative conditions stipulated in Article 101(3) TFEU are met, i.e. that the 5+6 Rule allows consumers to receive a fair share of the resulting benefit, that the 5+6 Rule only contains restrictions which are not indispensable to the attainment of its objectives and that the 5+6 Rule does not lead to eliminating competition in respect of a substantial part of the products in question.

183. Against this background it follows that the exemptions stipulated in Article 101(3) TFEU are not applicable in the case at hand. Consequently, the 5+6 Rule is incompatible with Article 101(1) TFEU.

iv. The 5+6 Rule and Article 102 TFEU

184. The Appellants further claim that the 5+6 Rule is incompatible with Article 102 TFEU, which reads as follows:

“Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.”

185. In case C-27/76 (United Brands) CJEU defined dominant position as follows (paragraph 65):

“The dominant position referred to in this Article relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately its consumers.”

186. CJEU case law indicates that a football association may be considered as an undertaking, and that it may hold a dominant position in the market for interclub football competitions. In case C-333/21 (European Superleague) CJEU stated as follows (paragraph 139):

“In the present case, it is apparent from the referring court’s statements that FIFA and UEFA both carry on economic activity consisting in the organisation and marketing of international football competitions and the exploitation of the various rights related to those competitions. Thus, in so far as they do so, those associations are both undertakings. They both also hold a dominant position, or even a monopoly, on the relevant market.”

187. Although the abovementioned case concerned FIFA and UEFA, i.e. international football associations, the same principle applies to national football associations, i.e. that it may hold a dominant position in the market for interclub football competitions. In this regard, the Panel notes that FRF has a similar role in the market for interclub football competitions in Romania as UEFA and FIFA hold in the market for international football competitions. FRF is the exclusive regulatory authority and controls access for participation in football competitions in Romania. Consequently, the Panel holds that FRF holds a dominant position in the market for access to football competitions in Romania.

188. Article 102 TFEU does not prohibit dominant position as such, but rather the abuse of such dominant position. The concept of abuse was defined as follows by CJEU in the case European Superleague (paragraph 124):

“As follows from the consistent case-law of the Court, the purpose of that provision is to prevent competition from being restricted to the detriment of the public interest, individual undertakings and consumers, by sanctioning the conduct of undertakings in a dominant position that has the effect of hindering competition on the merits and is thus likely to cause direct harm to consumers, or which causes them harm indirectly by hindering or distorting that competition”

189. The examples listed in Article 102 TFEU reveal that it prohibits abusive conduct that can include unfair pricing, predatory pricing, or restricting market access, which can be exploitative or exclusionary, typically harming consumers or competitors. Although the list of examples is not exhaustive, it indicates that the objective of Article 102 TFEU is to protect competition from being restricted to the detriment of the public interest, individual undertakings and consumers, by sanctioning the conduct of undertakings in a dominant position that has the effect of hindering competition on the merits and is thus likely to cause direct harm to consumers, or which causes them harm indirectly by hindering or distorting that competition (CJEU, case C-52/09, TeliaSonera, paragraphs 22 and 24; case C-209/10, Post Denmark, paragraph 20).

190. That said, the Panel observes that a finding of abuse under Article 102 TFEU requires a sufficiently clear demonstration of anticompetitive effects - such as effective foreclosure or other forms of exclusionary or exploitative conduct - and therefore entails a higher evidentiary threshold than an infringement under Article 101 TFEU. As noted above, the file contains little, if any, evidence capable of substantiating such effects. In the present case, while the 5+6 Rule may give rise to the concerns set out above, no concrete and appreciable foreclosure effect has been established on the basis of the evidence before the Panel. Equally, the file discloses no sufficiently clear indication of exploitative abuse on the part of FRF.

191. In light of the foregoing and having regard to the lack of evidence on file capable of demonstrating the anticompetitive effects required under Article 102 TFEU, the Panel concludes that the 5+6 Rule does not infringe Article 102 TFEU. This conclusion rests not on the premise that the rule is incapable of producing any conceivable harm, but rather on the failure of the Appellants to adduce sufficiently substantiated evidence of anticompetitive effects within the meaning of that provision.

192. In this regard, it is worth noting that this conclusion appears to find support in the Appellants' own submissions. At paragraphs 180 and 181 of the expert's report, Dr Cattaneo asserts, on the one hand, that the contested rule constitutes an unlawful restriction of free movement under Article 45 TFEU and an unlawful restriction of competition under Article 101 TFEU; on the other hand, he acknowledges that the rule also presents characteristics consistent with an abuse of dominance within the meaning of Article 102 TFEU, whilst expressly recognising that the primary legal deficiencies of the measure are already adequately captured under Articles 45 and 101 TFEU.

193. The Panel considers it appropriate to emphasise that the Appellants themselves do not advance the Article 102 TFEU claim with the same degree of conviction and

specificity as their submissions under Articles 45 and 101 TFEU, a circumstance which further supports the conclusion that the evidentiary threshold required for a finding of abuse of dominance has not been met in the present case.

X. CONCLUSION

194. Based on the foregoing findings, the Panel holds that:

- The Order on Request for a Stay does not have res judicata effect on the on the present appeal.

- FRF’s claim that the principle of res judicata has to be applied as several court cases already dealt with this legal issue must be dismissed.

- The 5+6 Rule must be considered as the result of FRF’s autonomous conduct and is subject to review under EU law.

- The 5+6 Rule is incompatible with Article 45 TFEU.

- The 5+6 Rule is incompatible with Article 101(1) TFEU.

- FRF, within the scope of Article 102 TFEU, holds a dominant position in the market for access to professional football competitions in Romania and in the associated upstream market for the acquisition of football players’ services, but has not abused its dominant position by implementing the 5+6 Rule.

195. As the Panel reached the conclusion that the 5+6 Rule constitutes a breach of Article 101 TFEU, pursuant to Article 101(2) TFEU, the automatic consequence is that the 5+6 Rule is void.

196. As the 5+6 Rule is declared null and void, it is not necessary for the Panel to order LPF to refrain from implementing or enforcing the Appealed Decision against the Appellants, as requested by Craiova and the Player.

XI. COSTS

(…)