On 10 March 2020, the French Conseil d’Etat (Conseil d’Etat case, Fédération Française de Football, Req. 424347) confirmed the possibility for the executive committee of the FFF (Fédération Française de Football) to accept the propositions of the CNOSF (Comité National Olympique et Sportif Français) given in the course of a conciliation and to additionally ask the DNCG (Direction Nationale du Contrôle de Gestion) to convene and to take other measures. In such a context, to create rights with a decision qualifying as an administrative decision (acte unilateral), the FFF has to take a new decision containing its own legal and fact reasons (motifs), this later cancelling the first one of the DNCG.
In this case, for financial reasons, the first measure ruled by the DNCG prohibited Racing Club de Lens from accessing Ligue 1.
The DNCG is an independent entity by law created by the FFF in the view of ensuring the sustainability of sports associations and companies, to encourage the respect of sport equity and to contribute to economic regulation of competitions. Its main mission is to organize the financial, legal and administrative control of members of sports associations and companies belonging to the FFF or of the professional league (or even those which ask to join them). Albeit considered as independent, the DNCG does not have the legal personality and forms part of the FFF.
After a mandatory conciliation before the CNOSF on 25 July 2014, other measures were instead proposed by such entity: (i) limitation of the number of employees and / or (ii) recruitment control. On 28 July 2014, the executive committee of the FFF thereafter decided to accept these other measures but additionally asked the DNCG to convene in order to determine how Racing Club de Lens would play in Ligue 1.
In such a context, this latest decision was challenged by a relegated team from Ligue 1 to Ligue 2 (Sochaux) (being ranked 18 after the championship and hoping staying in Ligue 1).
Such complaint is dismissed by the Conseil d’Etat for the second time.
The main subject arising from this case and developed in the report of the public draftsman (rapporteur public – see conclusions M. G. Odinet, rapporteur public available on the website of the Conseil d’Etat) deals with the qualification of the second decision dated 28 July 2014 and the correlative cancellation of the first decision dated 26 June 2014.
To rule the case, the Conseil d’Etat runs a limited scrutiny check (contrôle restreint) over the new decision taken after the conciliation on 28 July 2014 (standard in this kind of case). In this respect, the Conseil d’Etat ensured an absence of manifest error (erreur manifeste d’appréciation) only, and followed the conclusions of the public draftsman: the executive committee of the FFF did not take an inconsiderable risk in cancelling the first decision of the DNCG and in deciding instead the limitation of the number of employees and / or the recruitment control. No EMA (erreur manifeste d’apprécaition) can derive from this new decision.
Even if not raised in the case dated 10 March 2020, it might be argued that the question of interest to act (intérêt à agir) of Sochaux could also have solved this case. The interest to act of Sochaux could have successfully been challenged in the first instance as these two teams were playing in different leagues: it is not because Racing Club de Lens would have stayed in Ligue 2 (due to financial reasons) that Sochaux would had won the right to stay in Ligue 1. There is no link between the two: as such, Sochaux could also have lost the case on the ground of lack of grievance (défaut de grief) of the FFF decision. In addition, Sochaux cannot be considered as representing the collective interest of the whole profession.
By this decision, the Conseil d’Etat hopefully confirms the latitude of sport institutions vested with public power prerogatives (prérogatives de puissance publique), but remains, with the ECHR (European Convention of Human Rights) one of the ultimate regulation entities.