Arbitration CAS 2012/A/2981 CD Nacional v. FK Sutjeska, order of 19 December 2012

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1 Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2012/A/2981 Football Request for a stay of the decision Likelihood of success Standing to be sued in FIFA disciplinary cases 1. As a general rule, when deciding whether to stay the execution of the decision being appealed, the CAS considers whether the action is not deprived of any chance of success on the merits. 2. Pursuant to the CAS jurisprudence, it is well established that the defending party has standing to be sued (légitimation passive) if it is personally obliged by the disputed right at stake. In other words, a party has standing to be sued and may thus be summoned before the CAS only if it has some stake in the dispute because something is sought against it. Therefore only FIFA, and not a club, can be considered as the legitimate respondent to an appeal in FIFA disciplinary proceedings. 1. THE PARTIES 1.1 Club Desportivo Nacional (hereinafter referred to as Nacional or the Appellant ) is a football club with its registered office in Funchal, Portugal. It is a member of the Portuguese Football Federation (hereinafter referred to as the PFF ) and plays in the Portuguese First Division, Primeira Liga. 1.2 FK Sutjeska (hereinafter referred to as Sutjeska or the Respondent ) is a football club with its registered office in Dragova luka bb, Montenegro. It is a member of the Football Association of Montenegro (hereinafter referred to as the FAM ) and plays in the First League of Montenegro. 2. FACTUAL BACKGROUND 2.1 Before assessing the main facts related to the present dispute the Deputy President of the CAS Appeal Arbitration Division deems relevant to briefly address the background of facts and decisions which gave rise to these proceedings. 2.2 On 10 August 2011 the FIFA Dispute Resolution Chamber (hereinafter referred to as the FIFA DRC ) awarded Sutjeska training compensation in relation to the player Vladan

2 2 GiljenV. in the sum of EUR 335,000, who had been transferred to Nacional (hereinafter referred to as the FIFA DRC Decision ). 2.3 On 6 September 2011 Nacional lodged an appeal with the Court of Arbitration for Sport (hereinafter referred to as the CAS ), against findings of the FIFA DRC Decision. The proceedings CAS 2011/A/2563 CD Nacional v. FK Sutjeska was opened and an award was rendered on 30 March 2012, whereby it declared Nacional s appeal inadmissible. As a result, the findings of the FIFA DRC Decision became final and binding. 2.4 In view of the above, the FIFA Disciplinary Committee (hereinafter referred to as the FIFA DC ) opened disciplinary proceedings on 5 July 2012 against Nacional as it failed to pay the amount ordered by the FIFA DRC. Consequently, on 5 October 2012 the FIFA DC rendered a decision whereby it pronounced the Appellant guilty of failing to comply with a decision of a FIFA body and, in accordance with Article 64 of the FIFA Disciplinary Code, ordered Nacional to settle its debt with the Respondent (hereinafter referred to as the FIFA DC Decision or Appealed Decision ). 3. PROCEEDINGS BEFORE THE CAS AND THE PARTIES SUBMISSIONS 3.1 On 13 November 2012, the Appellant filed a statement of appeal with the CAS pursuant to Article R47 of the Code of Sports-related Arbitration, 2010 Edition (the Code ), against the Respondent with respect to the FIFA DC Decision. In its statement of appeal, the Appellant requested a stay of the Appealed Decision, pursuant to Article R37 of the CAS Code, by alleging that such decision would cause harmful and irreversible effects to the Appellant should it obtain a favourable decision at the CAS. 3.2 The Appellant did not provide any further explanations or evidence in support of its application for a stay of the Appealed Decision and on the merits, the Appellant seeks the annulment of the Appealed Decision and the recognition of the settlement agreement allegedly reached between the parties to settle the debt or, alternatively, the amendment of the Appealed Decision with respect to the fine imposed by the FIFA DC on the Appellant. 3.3 On 23 November 2012, the Appellant informed the CAS Court Office that its statement of appeal should be considered as the appeal brief. 3.4 On 26 November 2012, the Respondent filed its position with regard to the Appellant s request for a stay. The Respondent submits that the Appellant s request is moot in view of the lack of standing to be sued of Sutjeska in the present proceedings, considering that the federation which issued the Appealed Decision, i.e. FIFA, is the only legitimate respondent. 3.5 Furthermore, the Respondent alleges that the request for a stay of the Appealed Decision should also be dismissed on other grounds, considering that (i) the FIFA DRC Decision was final and binding and, therefore, Nacional could not challenge it any longer as it would be bound by res judicata; and (ii) the Appellant s alternative request did not expressly provide for

3 3 the annulment of the Appealed Decision, but only a reduction of the fine to be imposed by FIFA in case of non-compliance. 3.6 On 27 November 2012 FIFA wrote to the CAS Court Office and renounced its right to intervene in the present arbitration proceeding. It also noted that should a party lodge an appeal against a decision of the FIFA Disciplinary Committee, said appeal shall be directed against FIFA, which is the sole respondent in such disciplinary proceedings. As a consequence, should such appeal not be directed against FIFA, the appeal shall be declared inadmissible and CAS cannot review the decision of the first instance. Furthermore, FIFA emphasized that it is not automatically a party to any CAS procedure and cannot be forced to be a party if not called by the Appellant. 4. JURISDICTION OF THE CAS 4.1 In accordance with the Swiss Private International Law (Article 186), the CAS has power to decide upon its own jurisdiction. 4.2 The extent of the jurisdictional analysis at this point is to assess whether on a prima facie basis the CAS can be satisfied that it has jurisdiction to hear the appeal. The final decision on jurisdiction will be made by the Panel. 4.3 Article R47 of the CAS Code states that, An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body. 4.4 In the absence of a specific arbitration agreement, in order for the CAS to have jurisdiction to hear an appeal, the statutes or regulations of the sports-related body from whose decision the appeal is being made must expressly recognise the CAS as an arbitral body of appeal. 4.5 Article 67, par. 1, of the FIFA Statutes (2012 Edition) 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. 4.6 Article 64, par. 5, of the FIFA Disciplinary Code (2011 Edition) provides that any appeal against a decision passed in accordance with this article shall be lodged with CAS directly. 4.7 Based on the foregoing, in principle, the CAS has jurisdiction to decide the present dispute, without prejudice of any other decision that the Panel could take once constituted.

4 4 5. ADMISSIBILITY 5.1 According to Article R49 of the Code, In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. 5.2 The Appealed Decision is dated 5 October 2012 and the parties were notified of its content on 23 October 2012 by fax. 5.3 The statement of appeal was filed on 13 November 2012, within the 21-day time limit specified in the FIFA Statutes, that is to say in a timely manner. 6. LEGAL DISCUSSION 6.1 The Deputy President of the CAS Appeals Arbitration Division has the ability to consider an application for provisional measures before the Panel of arbitrators is constituted, pursuant to Article R37 of the Code. 6.2 The Deputy President of the CAS Appeals Arbitration Division reminds the relevant criteria for successfully grounding an application for a stay: according to well established CAS jurisprudence, provisional relief may be granted if (1) the party seeking such relief would suffer irreparable harm if the relief was not granted, (2) that party has a likelihood of success on the merits of the appeal, and (3) the interests of the Appellants outweigh those of the other party (CAS 2003/O/486; CAS 2001/A/329; CAS 2001/A/324; CAS 2007/A/1317; CAS 2010/A/2071). 6.3 The three requirements for the grant of provisional measures (i.e. irreparable harm, likelihood of success on the merits of the appeal and balance of interests) are cumulative (CAS 2007/A/1403; CAS 2010/A/2071). LIKELIHOOD OF SUCCESS ON THE MERITS 6.4 In accordance with CAS jurisprudence, as a general rule, when deciding whether to stay the execution of the decision being appealed the CAS considers whether the action is not deprived of any chance of success on the merits ( likelihood of success test): The Appellant must make at least a plausible case that the facts relied upon by him and the rights which he seeks to enforce exist and that the material criteria for a cause of action are fulfilled (CAS 2010/A/2113 and quoted references). 6.5 In this respect, the Deputy President of the CAS Appeals Arbitration Division addresses a crucial procedural element to the present dispute, namely the standing to be sued of the Respondent. In the statement of appeal, the Appellant named as Respondent Sutjeska, i.e. the club which had been party to the previous case before the FIFA DRC and, subsequently, the

5 5 CAS. The FIFA DRC Decision was rendered on 10 August 2011 and as mentioned above, although the Appellant lodged an appeal against the FIFA DRC Decision, that appeal was not admitted by the CAS. Therefore, the referred decision of 10 August 2011 became final and binding. 6.6 The following FIFA disciplinary proceedings before the FIFA DC concerned only the consequences for the Appellant of not complying with the final FIFA DRC Decision. 6.7 In light of the above, the Deputy President of the CAS Appeals Arbitration Division initially notes that the Respondent was not a party to the FIFA disciplinary proceedings leading to the Appealed Decision and neither was affected by its content. Furthermore, the Appellant does not claim anything against the Respondent nor seeks anything from Sutjeska. 6.8 The present case concerns exclusively the validity of a disciplinary sanction imposed on the Appellant under FIFA regulations, i.e. within the discretion of FIFA to ponder and impose sanctions on its members. In other words, the Appellant seeks provisional relief only against FIFA, namely against the sanction it has been charged with and which relief affects exclusively FIFA and the Appellant but not the Respondent. 6.9 For the sake of good order the Deputy President of the CAS Appeals Arbitration Division further notes that the CAS Court Office did ask FIFA whether it wanted to intervene in this matter. As mentioned above, FIFA renounced its right to participate Pursuant to the CAS jurisprudence, it is well established that the defending party has standing to be sued (légitimation passive) if it is personally obliged by the disputed right at stake (see CAS 2006/A/1206). In other words, a party has standing to be sued and may thus be summoned before the CAS only if it has some stake in the dispute because something is sought against it (cf. CAS 2006/A/1189; CAS 2006/A/1192) Therefore only FIFA, and not the Respondent, could be considered as the legitimate respondent to the present appeals proceedings. In other words, the Respondent does not have standing to be sued (légitimation passive). Accordingly, the Deputy President of the CAS Appeals Arbitration Division finds that the Appellant erred in filing the present appeal against Sutjeska as respondent, because Sutjeska lacks standing to be sued in connection with this case and, as a result, the present appeal proceedings is deprived of any chance of success on the merits (cf. CAS 2007/A/1367) By virtue of the procedural economy principle and taking into consideration the cumulative nature of the three requirements for granting an order on provisional measures, the Deputy President of the CAS Appeals Arbitration Division shall not examine whether the criteria of irreparable harm and balance of interests are met.

6 6 CONCLUSION 6.13 In view of the absence of likelihood of success on the merits of the Appellant, the Deputy President of the CAS Appeals Arbitration Division decides to reject the Appellant s request for provisional measure. 7. COSTS 7.1 According to standard CAS practice, the cost of the present order will be settled in the final award or in any other final decision in this arbitration. 8. MISCELLANEOUS 8.1 This decision is a procedural order, not an award. As a result, it may not be challenged in court pursuant to Article 190 Swiss Private International Law Act. ORDER The Deputy President of the CAS Appeals Arbitration Division, ruling in camera, decides that: 1. The application for provisional and conservatory measures requested by CD Nacional on 13 November 2012 in its statement of appeal, in the matter CAS 2012/A/2981 CD Nacional v. FK Sutjeska is rejected. 2. The costs of the present order shall be determined in the final award or in any other final disposition of this arbitration.