Opting-in for a domestic independent and fair tribunal under FIFA ...

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Stankiewicz, M. Opting-in for a domestic independent and fair tribunal under FIFA RSTP in player-club labour disputes of an international dimension. A brief analysis of the recent FIFA decisions regarding Polish and Slovak clubs. Is it a procedural trap? Právny obzor, 104, 2021, special edition, pp. 60-72

https://doi.org/10.31577/pravnyobzor.specialissue.2021.04

Opting-in for a domestic independent and fair tribunal under FIFA RSTP in playerclub labour disputes of an international dimension. A brief analysis of the recent FIFA decisions regarding Polish and Slovak clubs. Is it a procedural trap? The aim of the present paper is to analyse and examine the procedural requirements of raising an objection of the competence of FIFA in international disputes in professional football. The first part of the paper investigates the basis of FIFA jurisdiction, its requirements and the procedures that govern the proceedings in such cases. The second part of the paper is based on recent examples of cases where clubs and players from Poland and Slovakia tried to effectively raise an objection to FIFAs competence in adjudicating the cases. These examples are to illustrate what are the common problems the parties face when trying to raise such an objection and what procedural mistakes may lead to the questioning of the competence of FIFA on merit to be denied. The vital procedural issues in FIFA proceedings are presented as a chance to analyse the mistakes made in the past and avoid them in the future.

Key words: FIFA, Dispute Resolution Chamber, National Arbitral Tribunal, Sports law, Poland, Slovakia

Introduction

This paper is to briefly present the problem of opting-in for the domestic tribunal under the FIFA Regulations on Status and Transfer of Players. This main regulation regarding relations between sport clubs and professional players with an international dimension also governs the problem of jurisdiction (competence) of FIFA. Under the current, recently amended FIFA Statutes

, the FIFA Football Tribunal is established it consists of three chambers: (a) the Dispute Resolution Chamber; (b) the Players' Status Chamber; and (c) the Agents Chamber. The first two chambers are a continuation of previously existing FIFA judicial bodies: the FIFA Dispute Resolution Chamber and FIFA Players' Status Committee respectively. The third chamber is a brand new one that is set to be established along with the upcoming reform of football agents, which is currently being prepared by FIFA. In the said reforms FIFA is to return to the idea of regulated football agents, scrapped by a deregulation made in 2015 when the concept of football intermediaries came to life. In this paper I would like to first show the legal background of the FIFA competence problem as well as the procedural framework on the basis of which FIFA adjudicates. In the second part I would like to present recent cases regarding the objection to FIFA competence and to comment on them.

1. What is an independent and fair tribunal under FIFA regulations?

The current FIFA Status in its article 58 section 3 (previously art 60 section 3) says that the associations shall insert a clause in their statutes or regulations, stipulating that

"it is prohibited to take disputes in the association or disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other association officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and fair and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to CAS. The associations shall also ensure that this stipulation is implemented in the association, if necessary by imposing a binding obligation on its members. The associations shall impose sanctions on any party that fails to respect this obligation and ensure that any appeal against such sanctions shall likewise be strictly submitted to arbitration, and not to ordinary courts of law"

The arbitration model of resolving disputes is therefore obligatory and the national associations shall ensure that an independent fair and duly constituted arbitration tribunal is recognised at the national level. Otherwise such cases are taken to CAS.

FIFA itself, as an international football regulator, may also govern the jurisdiction of its own judicial bodies. In interactions between clubs and players the main act governing the jurisdiction is FIFA Regulations on Status and Transfer of Players

. Although mainly a source of material law, it also contains very important regulations regarding jurisdiction.

Article 22 of FIFA RSTP stipulates when FIFA is competent to hear the case. Especially letter b) of this article is of importance stating:

"without prejudice to the right of any player, coach, association, or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear (...) (b) employment-related disputes between a club and a player of an international dimension; the aforementioned parties may, however, explicitly opt in writing for such disputes to be decided by an independent and fair arbitration tribunal that has been established at a national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable to the parties. The independent and fair national arbitration tribunal must guarantee fair proceedings and respect the principle of equal representation of players and clubs"

The international dimension of a dispute takes place when a player and a club belong to different national association which in practice means that a foreign player (regardless of the EU/non-EU status nor current residency) faces a dispute with a club he or she is registered

with which is called a "sportive nationality"

. In such a case FIFA can hear any labour case brought by any of the said parties. There is however an exception that can be made in order to put the dispute on a national level (being the country when football services where rendered) if the additional conditions are met.

These conditions are as follows. Firstly, the parties of a dispute should clearly and explicitly opt-in in writing for such national dispute resolution body. Normally such an arbitration clause should be put in the professional football contract, however it may also be included in a collective bargaining agreement made between the stakeholders of the football market. The reference made to the competence of the national arbitration tribunal has to be made at the moment the contract is signed

. Also it shall be noted that such jurisdiction of the national arbitration tribunal has to be exclusive and the particular arbitral tribunal has to be designated

Secondly, and more importantly such a body needs to comply with the requirements of a fair tribunal which must guarantee both fair proceedings and respect the principle of equal representation of players and clubs.

The requirement of fair proceedings has not been defined in FIFA RSTP. However on 20 December 2005 famous circular 1010 was issued where FIFA set the criteria of a fair tribunal. The criteria are as follows:

(1) Principle of parity when constituting the arbitration tribunal

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