Introduction

A common occurrence in CAS Appeals filed against a final notification of an Electronic Player Passport (“EPP”) and an Allocation Statement under the FIFA Clearing House Regulations, is the non-joinder of the prior training clubs/associations concerned to the CAS Appeal. The reason for such an error in the joinder of the parties is due to the fact that the Appeal stems from the decision that is issued by the FIFA General Secretariat and not necessarily against the prior training clubs/associations that took part in the process of determination of the final EPP and Allocation Statement. In essence, the Appeal is solely intended to ensure the correct application of the applicable FIFA Rules by the FIFA General Secretariat in distributing the training rewards. It is not intended to challenge the interests of the prior training clubs/associations who first, do not possess an automatic right to the training reward unless it is determined by FIFA, and second, have issued waivers to receive any training rewards and thereby have no legal interest or right in the matter. The joinder of such parties would be redundant and delay the proceedings unnecessarily.  

While such argumentation has not been confirmed by any CAS Panel yet, these procedural lapses affect the maintainability of the Appeal and in most instances means the end of the Appeal. This is particularly damaging to small football clubs who, due to the lack of staff, resources and knowledge, have not properly integrated themselves with the processes of the FIFA Clearing House and FIFA TMS and are made liable to pay significant amounts in training rewards, despite possessing valid waivers or evidence to dispute the correctness of the EPP and Allocation Statement. 

Procedural lapses – end of an appeal?

A recent ruling (CAS 2024/A/10427 Right to Dream FC v. FIFA^[1]) has thrown light on the scope of review of CAS Panels despite the non-joinder of a mandatory party, which may provide some respite for small football clubs that have succumbed to procedural lapses. 

The referenced case also involved a CAS Appeal filed by a football club against the notification of a final EPP and Allocation Statement by FIFA. However, the maintainability of the Appeal was brought to the forefront as the Appellant football club only included FIFA as the Respondent and failed to include the necessary prior training club/association as a party to the Appeal, especially when such a party’s right to training rewards would be affected if any decision was rendered by CAS. 

The Sole Arbitrator, while accepting FIFA’s position that it cannot delve into the merits of the matter, noted that the non-joinder of a mandatory party “does not necessarily mean that the Appeal must be rejected” (at para 165). Instead, without delving into the merits of the matter, the Sole Arbitrator expounded on his discretionary powers under Article R57 of the Code of Sports Related Arbitration (“CAS Code”) to refer the case back to FIFA for reconsideration. 

Curative element of Article R57 of the CAS Code

Article R57 of the CAS Code provides as follows: “The Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance…”. [emphasis added]

In this regard, the Sole Arbitrator also relied on a previous CAS Ruling (CAS 2022/A/8679^[2]) which stated as follows: 

“5. Based on Article R57 of the CAS Code, a CAS panel is authorised to issue a new decision which replaces the appealed decision or annul the appealed decision and refer the case back to the previous instance. The CAS panel is afforded discretion in this respect and no particular request from any of the parties is required to choose for either of these options.” [emphasis added]

Therefore, by relying on the above, the Sole Arbitrator analysed the information on record and stated that there was new evidence that had been produced by the Appellant football club, which had not been considered by FIFA earlier. Furthermore, the reason as to why such evidence cannot be considered in the CAS Appeal proceedings is solely due to the non-joinder of a mandatory party to the proceedings. However, the Sole Arbitrator considered that such an issue could be remedied if it was sent back to FIFA for reconsideration by virtue of his powers under Article R57 of the CAS Code. Hence, the Sole Arbitrator annulled the FIFA Decision and referred the case back to FIFA to reconsider the case again in light of the new evidence. 

Author’s remarks

The author notes that such a decision ensures a fair and equitable outcome, especially when procedural lapses would unnecessarily have led to the football club having to pay significant amounts in training rewards despite documentary evidence proving otherwise. Moreover, this ruling also confirms the prior jurisprudence of CAS in TAS 2015/A/4291, which required CAS Panels to prevent respondents from using “spurious procedural excuses” to stop an appellant’s claim for a fair and equitable outcome that reflects the accurate facts of the case. 

Despite the fail-safe mechanism expounded by CAS in the referenced case, the author emphasizes on the importance for football clubs to integrate themselves with the procedures of the FIFA Clearing House because CAS Appeals are not financially viable in small value claims (i.e. less than CHF 50.000), and obtaining any relief against a FIFA Decision would be precluded due to the high costs of arbitration. 

^[1] https://www.tas-cas.org/fileadmin/user_upload/CAS_10427_Award__FINAL_for_publ._.pdf.

^[2] https://jurisprudence.tas-cas.org/Shared%20Documents/8679.pdf#search=8679.