Football has become a global business, and various issues have arisen between parties in football (intermediaries and players, players and football clubs, among others). Arbitration has become an important aspect in football at the moment, with the establishment of the FIFA Dispute Resolution Chamber (DRC), and more importantly, the Court of Arbitration for Sports (CAS), which is the highest arbitration body in sports. The establishment of the Court of Arbitration for Sports has proven important in the decision making process. This article seeks to discuss arbitration in football, most especially the duties of the FIFA Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sports (CAS).
Keywords: Arbitration, Dispute Resolution Chamber, Court of Arbitration for Sports, FIFA.
The increase in the commercial value of football has made arbitration a more important aspect in solving football disputes. The main form of dispute resolution has been court-based legal proceedings i.e. litigation. However, in many jurisdictions, alternative dispute resolution (ADR) mechanisms have been embraced as a means to circumvent the challenges associated with litigation. These challenges are typically the inordinate length of time it takes for legal proceedings to be concluded by courts, the huge costs often incurred by litigants, as well as the acrimony that characterizes such proceedings. The football world has likewise developed its own sport-specific dispute resolution mechanism, based largely on arbitration. For example, in 2001 FIFA set up the Dispute Resolution Chamber (“the DRC” or “the Chamber”). The aim is to curtail the recourse to ordinary courts for the settlement of football-related disputes and the attendant disruptive problems associated with it. The point has often been made that where the sport lacks a means within its structures to effectively and efficiently resolve sports-related disputes, seeking redress from the ordinary courts would be inevitable. This often disrupts the sports calendar (in this case football) and brings with it the typical challenges associated with litigation by being antagonistic, procedurally slow and relatively expensive.
2.0 WHAT IS ARBITRATION?
Arbitration is a procedure in which a dispute is submitted by agreement of the parties to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons, by whose decision they agree to be bound. Arbitration can also be described as a non-judicial process for the settlement of disputes where an independent third-party – an arbitrator, makes a decision that is binding.
3.0 ARBITRATION IN FOOTBALL
One of the common problems associated with courtroom litigation is the inordinate length of time it often takes for disputes to be resolved. Even after a judgment is given in favour of one of the parties to litigation, there are often procedural exertions required to enforce such judgments. Also, there may be the added time involved in the process of appeal against the judgment by the losing party. For a professional football player, time is always of the essence, whether it is playing time or the time it takes to resolve his dispute with his club.
The need for arbitration in football arose after the ruling of the court in the Marc-Jean Bosman case, which was based on the free movement of players within Europe. Despite having won the case, the football player obviously lost at least a good portion of his career to the cause due to the fact that the case took five years before it could be resolved by the court while he was 25 years old.
Marc-Jean Bosman, a Belgian footballer, played for Belgian First Division team R.F.C. de Liege. Upon the expiration of his contract, his intended move to French club, Dunkerque failed because the French club failed to meet the transfer fee demanded by his Belgian club. With the football rules then allowing clubs to obtain a transfer fee for players despite expired contracts, Bosman approached the court arguing that those rules amounted to restraint of trade and violated the principle of free movement of workers established in the European Union (EU). After five years and appeals against each ruling, the case reached the European Court of Justice, where the Court agreed with this argument and issued the landmark ruling, the basic significance of which is that EU players may now move to another club without a transfer fee, upon the expiration of their contract. For Bosman, the length of time involved in finally settling the case was injurious to his professional career. Having played in the Belgian First Division prior to the trial, he moved to playing in the French lower leagues during the period of the trial, ending up at Belgian Third Division team C.S. Vise after the trial. For the football governing body, the ruling amounted to an encroachment into its sphere of regulation and resulted in a shake-up of its rules.
4.0 FIFA DISPUTE RESOLUTION CHAMBER (DRC)
Approximately 1,945 cases per year are referred to FIFA’s decision making bodies, excluding requests for minors. Also, in 2015, more than 3940 decisions were passed, with 2570 pertaining to minors and 1,370 pertaining to contractual disputes.
The FIFA Dispute Resolution Chamber (DRC) is provided for under Article 5 par. 2 of the FIFA Statutes:
“FIFA shall provide the necessary institutional means to resolve any dispute that may arise between or among member associations, confederations, clubs, officials and players.”
In 2001, the European Commission concluded an agreement with FIFA and FIFPro (Federation Internationale des Associations de Footballeurs Professionnels) concerning the way in which football and European law related to one another. The direct cause for this was the Bosman ruling, whereby the European Court of Justice decided that the position of professional football players was no different to that of ordinary employees within the European Union. One of the principles of the agreement reached between FIFA/UEFA and the European Commission in March 2001 was:
“To provide for an appropriate dispute resolution system inside the football structures, without prejudice to any right of any player or club to seek redress before a civil court for employment related disputes.”
FIFA has appointed an arbitration commission, the Dispute Resolution Chamber, in order to monitor the fulfilment of these regulations. It is a joint committee consisting each time of two representatives on behalf of the clubs and a chairperson appointed by FIFA. In addition to transfer matters, the DRC is also concerned with other labour law disputes such as wage issues and it issues decisions on the question of whether or not employment contracts have been legally terminated. The Dispute Resolution Chamber (DRC) is FIFA’s deciding body that provides arbitration and dispute resolution on the basis of equal representation of players and clubs and an independent chairman.
It is important to note that the DRC is not an arbitral tribunal, such as the Court of Arbitration for Sport (“the CAS”). The DRC only resolves and settles disputes. Decisions by the DRC do not have binding opinion enforcement and can only be enforced through the statutes and regulations of FIFA. There have been various decisions by the DRC on various football matters. In a DRC decision of 28 September 2006, the Chamber had to adjudicate in a dispute between a player and a club regarding the currency amongst other things. On 28 September 2001, the player and the club signed an employment contract valid from the date of signature until 28 September 2006. The DRC turned its attention to the contradictory positions of the parties in the present dispute to the amount paid to the player in advance, and in particular the currency to which the advance payment refers. The Chamber remarked that the player confirmed the receipt of an advance payment in the amount of 325,000 “rubles”. The DRC was of the opinion that the decisive and crucial currency to be taken into account is the one to which the employment contract at the basis of the present dispute refers. Also, in a DRC decision of 11 March 2005, the DRC had to decide about a contractual dispute between a French player and a Turkish club. The DRC decided that the insufficient and poor performance level was no valid reason to pay the player less salary. The DRC adjudicated compensation to the player. The parties signed an employment contract on 23 August 2004 for the 2004/05 season under the following basic financial terms: a USD 50,000 net cash payment, as well as a monthly remuneration of USD 7,000. The Chamber finally commented that the player’s poor performance could have been addressed in several alternative ways, none of which included withholding the basic contractual obligation towards the player. According to the DRC, the non-fulfilment of such basic contractual obligation like the payment of salary may not be used as a tool to sanction a player for disappointing performance levels. Therefore, the Chamber decided that the poor performance level of the player was not a valid reason to pay the player less salary.
Worthy of note however, is the fact that that FIFA does not publish all the DRC decisions on its website. The exact number of decisions taken by the DRC during the recent years is therefore difficult to estimate. Further, it must be noted that certain elements of the official DRC decisions might be excluded from publication. Also, the decisions of the Chamber will be published “only in case of general interest” as mentioned in the Procedural Rules.
The jurisdiction of the DRC is defined in Article 22 and Article 24 of the RSTP. With regard to its jurisdiction and with reference to Article 3 para 1 of the Procedural Rules, also under the part “considerations” of the decision, and after the Chamber has determined exactly which edition of the Procedural Rules is applicable to the matter at hand, subsequently (mostly in the second paragraph of the “considerations”), and before entering into the substance of the matter, the DRC examines its jurisdiction in light of Articles 22 to 24 of the RSTP, 2016 edition.
- Employment-related disputes between a club or an association and a coach of an international dimension.
- Disputes between clubs belonging to different associations that do not fall within the scope of training compensation or the solidarity mechanism.
- Proceedings pertaining to the provisional registration of a player
- Disputes or investigations in relation to the release of players to association teams
- All other disputes arising from the Regulations on the Status and Transfer of Players, subject to the competence of the Dispute Resolution Chamber
5.0 COURT OF ARBITRATION FOR SPORTS
The Court of Arbitration for Sports is a body or institution which is independent of any sporting body or organization, meaning it has no connection to any of the large sporting governing bodies. Colloquially known as a Supreme Court for sports disputes, since its establishment, the Court of Arbitration for Sports has registered some 5000 arbitration proceedings with approximately 200 new registered cases per year. In 2016, the CAS registered a record number of more than 600 arbitrations. Today, the CAS has nearly 300 arbitrators from 87 countries to rule on disputes.
The Court of Arbitration for Sports is recognized under the FIFA Statutes as independent body with the power of solving football disputes. Article 66 par. 1 of the FIFA Statutes provides that:
“FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, Members, Confederations, Leagues, Clubs, Players, Officials, intermediaries and licensed match agents.”
It must be noted that from a formal and legal point of view, the CAS is not bound and not obliged to follow earlier jurisprudence due to an absence of the so-called “Stare Decisis-principle”. However, in order to attain more uniformity, equality and legal certainty on a worldwide scale, they cannot deviate under all circumstances from previous decisions, according to the CAS jurisprudence.
The Court of Arbitration for Sports is located in Lausanne, Switzerland. It was established in 1984 by Juan Antonio Samaranch, the then President of the International Olympic Committee (IOC), and Judge Keba Mbaye, an IOC member and judge on the International Court of Justice. The CAS, which maintains a list of arbitrators, provides for the arbitral resolution of sports-related disputes through arbitration conducted by Panels composed of one or three arbitrators.
CAS is also known by its French name, Tribunal Arbitral du Sport (TAS).
Under an agreement between FIFA and the International Council of Arbitration for Sport, the jurisdiction of the Arbitration Tribunal for Football (TAF) is exercised by the CAS. FIFA has recognized CAS since December 2002 to resolve disputes between FIFA members, confederations, leagues, clubs, players, officials and licensed match agents. In its Circular no. 827, FIFA outlined that after “intense and very constructive discussions with the International Council of Arbitration for Sport”, FIFA finally agreed to recognize the jurisdiction of the CAS. Since then CAS has been ready to act as an appeal committee for decisions taken by the DRC after 11 November 2001.
The Court of Arbitration for Sports is made up of panels which are tasked with the duty of resolution by arbitration/mediation of disputes arising within the field of sport in conformity with the procedural rules.
The responsibilities of the panel are:
- to resolve the disputes that are referred to them through ordinary arbitration;
- to resolve through the appeals arbitration procedure disputes concerning the decisions of federations, associations or other sports-related bodies, insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide
The jurisdiction of CAS is one that has been in contention recently. One of the main reasons includes the fact that although CAS makes use of the FIFA Statutes, it also makes use of the Swiss law. However, it can also be argued that member states of FIFA are bound by the decisions of FIFA, which is one of the obligations of being a member nation.
The jurisdiction of the CAS is spelt out in Article 67 of the FIFA Statutes which provides that:
“Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question.”
Furthermore, before the jurisdiction of CAS can be evoked, the Appellant must have exhausted all internal channels. This is also in-line with Article R-47 of the CAS Code which expressly spells out the procedure for filing an appeal before the Court of Arbitration for Sports.
The jurisdiction of the CAS has however been challenged by a number of national civil Courts. In 2018, a Brussels Court of Appeal challenged the CAS jurisdiction clause in the FIFA Statutes. In 2015, Belgian football club RFC Seraing and Doyen Sports (Doyen), an investment fund in support of third party ownership, challenged a transfer ban issued by FIFA, which held Seraing to be in breach of the FIFA Third Party Ownership (TPO) rules in Article 5 of the FIFA Regulations on the Status and Transfer of Players (RSTP). Seraing was banned from registering player in four consecutive registration periods. The decision was appealed by Seraing to CAS, whose decision was to modify FIFA’s ruling by reducing the ban to three consecutive registration periods.
Unhappy with the ruling, Seraing and Doyen appealed the decision before the Swiss Federal Tribunal. The Court however upheld the independence of the CAS as an arbitral institution, upheld the basis of FIFA’s TPO rules rejecting the argument that it interfered with the economic freedom of clubs and rejected the appellant’s dis-proportionality argument in relation to the penalty on the basis that such a claim was not admissible before the Federal Tribunal.
Seraing and Doyen also brought a challenge to the CAS decision before the Belgian Court in Liege and then subsequently, the Belgian Court of Appeal. The Appellants made an application for interim relief to: (i) suspend the CAS decision upholding (in part) FIFA’s sanction; and (ii) ordering URBSFA to allow a variety of players (professional and youth) to be registered with Seraing. These requests for interim relief were denied both in the Liege Court of first instance and the Court of Appeal.
However, as a part of the Belgian club’s challenge, the Brussels Appeal Court had to consider its own jurisdiction in the light of submissions by FIFA, UEFA and URBSFA that a valid jurisdiction on the CAS and not the Brussels Appeal Court. The Belgian Court of Appeal rejected the submission of FIFA, UEFA and URBSFA that a valid arbitration clause precluded the Court from adjudicating on the issue.
The CAS is composed of two divisions. The Ordinary Arbitration Division, and The Appeals Arbitration Division.
- The Ordinary Arbitration Division: constitutes Panels, which are tasked with resolving disputes submitted to the ordinary procedure. It also performs, through the intermediary of its President or his deputy, all other functions in relation to the smooth running of the proceedings conferred upon it by the procedural rules.
- The Appeals Arbitration Division: constitutes Panels, which are tasked with resolving disputes concerning the decisions of federations, associations or other sports-related bodies insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide. It performs, through the intermediary of its President or his deputy, all other functions in relation to the smooth running of the proceedings conferred upon it by the procedural rules.
6.0 ARBITRATION IN NIGERIAN FOOTBALL
Arbitration matters in Nigerian football are supposed to be brought before the National Dispute Resolution Chamber (NDRC), which is provided for by the NFF Statute. The creation of NDRC’s is also supported by FIFA, with the aim of independent arbitration tribunals established by Member Associations (MAs) that are competent to handle disputes between clubs and players, mediate on employment and contractual stability, as well as training compensation or solidarity contribution litigations between clubs within the same association. The creation of NDRC’s is also to help lighten the burden of the FIFA DRC, as most matters brought before the DRC can be solved within the various Member Associations.
It is for the purpose of meeting the obligation to establish a domestic dispute resolution tribunal that Articles 4(3), 72 and 73 of the NFF Statutes provide as follows:
3. NFF shall provide the necessary institutional means to resolve any internal dispute that may arise between Members, Clubs, Officials and Players of NFF.
NFF shall establish a National Dispute Resolution Chamber which shall deal with all internal national disputes between NFF, its members, players, officials, match and players agent that do not fall under jurisdiction of its judicial bodies. The Executive Committee shall draw up special regulations regarding the composition, jurisdiction, procedural rules of the National Dispute Resolution chamber, which shall been in compliance with the FIFA directive on the subject.
1. NFF, its Members, Players, Officials and match and player's agents will not take any dispute to Ordinary Courts unless specifically provided for in these Statutes and FIFA regulations. Any disagreement shall be submitted to the jurisdiction of FIFA, CAF, WAFU or NFF.
2. NFF shall have jurisdiction on internal national disputes i.e. disputes between parties belonging to NFF. FIFA shall have jurisdiction on international disputes i.e. disputes between parties belonging to different Associations and/or Confederations.
The Nigeria Professional Football League (NPFL), the topflight league in Nigeria also makes provision for the NDRC in contractual matters between clubs and players in Section D of the NPFL Rule Framework which states that:
4. All disputes arising from transfer of players, contracts, etc shall be referred to the DRC for adjudication.
5. Decisions of the Arbitration Committee shall be final and binding on all parties concerned.
6. Failure by any club to comply with any decision of the Arbitration Committee within 30 days shall cause the Club to be expelled from the League.
However, the NFF has failed to create the Arbitration body. Although, there have been several calls for its establishment in order to resolve the numerous outstanding football disputes in the country. In 2007, FIFA issued a circular to its member associations decrying the fact that only a few member associations had established a judicial body to adjudicate over employment disputes between players and clubs and advocating the establishment of NDRCs to lighten the burden on the FIFA DRC and ease the process of adjudication. The Chairman of the FIFA Football Stakeholders Committee, Victor Montagliani said:
The NDRC programme is the result of a joint effort by stakeholders, with the objective of streamlining dispute resolution between players and clubs and offering an efficient and affordable alternative to traditional courts.
The absence of the NDRC has led to a number of football matters being taken to civil Courts to adjudicate on, and also matter being brought before the CAS to give its verdict. More recent is the situation which occurred in 2014, after the NFF Presidential elections. The fallouts of the 2014 election led to the case being filed at the Court of Arbitration for Sports in the case of FIFA v. NIGERIAN FOOTBALL FEDERATION. The appellant, Mr. Giwa, claimed that the election which took place on 26 August 2014 was well conducted and the procedures were in accordance with the FIFA statutes. However, the election was not recognised by FIFA, who in a letter stated:
… as a consequence, we will not recognize the outcome of the above-mentioned elections and should there still be persons claiming to have been elected and occupying the NFF offices at midnight on Monday 1 September 2014, we will bring the case to the appropriate FIFA body for sanctions, which may include the suspension of the NFF.
On the 30th of September 2014, Mr. Amadu, the then General Secretary of the NFF informed FIFA about the election taking place in Warri, which led to the election of Mr. Amaju Melvin Pinnick as the President of the NFF. On 1 October 2014, Mr Joseph Blatter, the then President of FIFA congratulated Pinnick through a letter for being elected as the NFF President:
I would like to extend my sincere congratulations and best wishes of success on the occasion of your election as the new President of the Nigeria Football Federation…
It must be noted that in his brief, the appellant stated that the applicable laws are the FIFA regulations, as well as the NFF Statutes 2010 and the NFF Electoral Code. The Respondent on the other hand pointed to Article R58 of the CAS Code and Article 13 of the FIFA Statutes, which support the fact that as a member association of FIFA, the NFF is subject to FIFA regulations. The Court of Arbitration for Sports, however, dismissed the appeal filed by the appellant, on the ground that FIFA has the power to not recognise an election if it is not in line with Article 17 of the FIFA Statutes, regardless whether the elections might have been valid in terms of Nigerian law, the NFF Statutes or the NFF Electoral Code.
In conclusion, arbitration has become an important part of football development. The increasing number of disputes between parties has made arbitration an easier solution to football related disputes. The Dispute Resolution Chamber, as well as the Court of Arbitration for Sports have been important in making sure most football related disputes are not brought before civil courts, thus prolonging the case beyond what it normally would be.
Article Written By: Eribake Ayomide Oloruntoba - A 500 level student of the Faculty of Law, University of Lagos. He has researched and written various articles as regards Sports Law, most of which have been published on a number of platforms.