4A_492/2016, Judgment of January 7, 2017 FC A v. B & FIFA
This case deals with the recurrent issue of jurisdiction, yet this time not the jurisdiction of the Court of Arbitration for Sport (CAS) but rather of the previous instance (in casu the FIFA Dispute Resolution Chamber, DRC).
The CAS proceedings: Contracts of employment and arbitration clause for CAS & FIFA DRC
The matter related to several employment contracts (providing, primarily, for CAS jurisdiction) and the eventual termination of the contract of employment by the Player for outstanding salaries. The FIFA
DRC upheld its jurisdiction, confirmed the Player’s claims and adjudicated more than EUR 11’000’000 in outstanding salaries and damages.
In the subsequent appeal to the CAS, the Club requested the annulment of the FIFA decision (for lack of jurisdiction of the FIFA DRC) and, subsidiarily, requested to revert the matter back to FIFA for re-adjudication. The CAS Panel, by means of an interim award, accepted the appeal in part, declared the FIFA DRC competent to decide on the matter, annulled the appealed decision and reverted the matter back to FIFA.
As expected, the Club filed a motion to set aside the CAS Award requesting to declare the FIFA DRC incompetent to decide the matter or to revert the case back to the CAS for a new decision.
The Swiss Federal Tribunal findings
The reply cannot be used to supplement the appeal
The Swiss Federal Tribunal started its analysis by highlighting the limitations of the second round of pleadings, where any reply may not be used to supplement or improve the appeal but only to comment upon statements made in the answer (at 2.4).
Jurisdiction of the FIFA DRC and control by the Swiss Federal Tribunal
The jurisdictional criticisms raised by the Club related solely to the jurisdiction of the FIFA DRC and not to the jurisdiction of the CAS (at 3.2). In the Club’s view, the CAS should have dealt with the case not as an appeal court after an internal federation procedure but as an ordinary tribunal.
The Federal Tribunal confirmed the CAS Panel’s decision in application of Article 22(b) of the FIFA Regulations on the Status and Transfer of Players (RSTP) since the Player had worked as a professional football player for the Club and claimed outstanding salaries and damages as a result of the employment contract. Furthermore, according to Art. 24(3) RSTP, decisions of the FIFA DRC can be appealed to the CAS. In view of the above, the Federal Tribunal rejected the argument that the parties’ agreement excluded the jurisdiction of the FIF
FIFA Tribunals are not “arbitral tribunals” but only internal decision-making bodies
More importantly, however, it reiterated its position that the FIFA tribunals are not “arbitral tribunals” vested with real jurisdictional powers, but only internal decision-making bodies, whose decisions are mere embodiments of the will of the federations concerned. This would mean that the arbitration clause between the parties should be interpreted in a way that the parties sought to exclude the jurisdiction of other arbitral tribunals besides the CAS – and not any potential internal procedures such as the FIFA DRC.
