Arbitration CAS 2008/A/1677 Alexis Enam v. Club Al Ittihad Tripoli, order of 15 December 2008

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1 Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2008/A/1677 order of 15 December 2008 Football Request for a stay of the decision Conditions to stay the decision Standing to be sued Likelihood of success 1. In accordance with consistent CAS jurisprudence, as a general rule, when deciding whether to stay the execution of the decision appealed from, CAS considers: (a) whether the action is not deprived of any chance of success on the merits ( likelihood of success test); (b) whether the measure is useful to protect the applicant from irreparable harm ( irreparable harm test); and (c) whether the interests of the applicant outweigh those of the opposite party and of third parties ( balance of interest test). In accordance with the CAS case law, these three factors are cumulative. 2. Under Swiss law, 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. 3. With respect to a sporting sanction, the Appellant is not claiming anything against the club nor seeking anything from it; the Appellant is seeking something only against FIFA and the relief requested affects FIFA only. Therefore, only FIFA, and not the club, is the legitimate respondent to an appeal brought before the CAS insofar as it concerns the restriction of four months on the eligibility to play in official matches imposed on the player. Therefore, the Appellant fails to meet the likelihood of success test if it only names the club as Respondent but not FIFA. Mr Alexis Enam (the Player or the Appellant ) is a Cameroonian professional football player born on 25 November The Club Al Ittihad (the Club or the Respondent ) is a Libyan Football club based in Tripoli, Libya, and is a member of the Libyan Football Federation. On 17 September 2005, the parties signed an employment contract valid for two years.

2 2 On 9 June 2007, the Respondent filed a claim with FIFA against the Football Federation of Cameroon and the Player alleging that after having been released to take part in a match with the team of Cameroon on 3 June 2007 in Garoua, Cameroon, the Player did not resume with the Club in due time. As, in the meanwhile, the Appellant would have failed to return to the Respondent, on 2 August 2007, the Club lodged another claim with FIFA Dispute Resolution Chamber against the Player and the Football Federation of Cameroon requesting from the former (1) the payment of compensation in the amount of USD 200,000 for breach of contract, (2) USD 125,000 for replacing him by another player and (3) USD 5,500 for losing a license in the CAF Champions League since the relevant regulations do not permit replacements and from the later USD 100,000 since the Football Federation of Cameroon would have omitted to arrange for the Player s return in time after having been released for international duties. On 11 December 2007, the Single Judge of Player s Status Committee passed a decision on the claim presented by the Respondent against the Football Federation of Cameroon. It concluded that the Appellant had not resumed duty with his club in a timely manner and, applying Articles 1 and 6 of the Annex 1 of the Regulations for the Status and Transfer of Players (the Regulations ), decided inter alia that: 2. A ban is imposed on the Football Federation of Cameroon to call up the player Alexis Enam for the next match played by the Association team of Cameroon. 3. The period of release of the next summon of the player Alexis Enam for qualifying match of the Association team of Cameroon shall be shortened to 3 days. 4. The player Alexis Enam has to pay the amount of USD 2,000 to the club Al Ittihad within 30 days as from the date of notification of this decision. On 18 December 2007, the Player signed a new employment contract with the Tunisian Club Africain. On 7 May 2008, the FIFA Dispute Resolution Chamber passed a decision on the claim presented by the Respondent against the Appellant. It considered that the Player was unable to demonstrate that he had valid reasons for failing to return to the Club in due time and to honour the contract until its expiry date and it deemed that the Player breached without just cause the employment contract binding him with the Respondent within the protected period. Applying Article 17 of the Regulations, the FIFA Dispute Resolution Chamber inter alia decided that (1) the Player has to pay compensation in the amount of USD 45,000 to the Club, (2) the Tunisian Club Africain is jointly and severally liable for the payment of this amount and (3) a restriction of four months on his eligibility is imposed on the Player. This decision has been faxed by FIFA to the Libyan Football Federation, to the Football Federation of Cameroon and to the Tunisian Football Federation on 30 September According to the Appellant, this decision was communicated to him on 2 October 2008 by the Tunisian Football Federation.

3 3 On 6 October 2008, the Appellant filed a statement of appeal with the CAS. He mainly alleged a breach of the res judicata principle and, on a subsidiary basis, (1) his de facto suspension as a result of the Libyan Football Federation s refusal to issue the requested international transfer, (2) a disproportion of the imposed sanction, (3) the non-motivation of the challenged decision and (4) the date of its communication to principally request the cancellation of the challenged decision and the condemnation of the Respondent to pay him an amount of USD 15,000 as a contribution towards its legal fees and other expenses incurred in connection with this arbitration. With his statement of appeal, the Appellant also filed a request for a stay of the execution of the challenged decision. In support of his request for a stay, the Appellant argued that in view of the arguments mentioned in his appeal and in order to avoid the irreparable effects of the potential execution of the imposed sanction, it appears necessary for him to stay the challenged decision until the CAS would have decided on the merits of this case. By letter dated 22 October 2008, the CAS Court Office invited the Appellant to file his appeal brief within 10 days following the expiry of the time limit for the appeal, or to inform the CAS within the same deadline that his statement of appeal is to be considered as the appeal brief, and to clarify, within three days, whether, in view of constant CAS jurisprudence, he wholly maintains his request for a stay or maintains it only with respect to the sporting sanction imposed on him. It was specified that the Respondent would then be invited to file its determination on this request within one week from receipt of the Appellant s clarifications. By letter of the same day, the CAS Court Office informed FIFA of the appeal filed by the Appellant and of its faculty to request to participate as a party in the present arbitration. By letter dated 25 October 2008, the Appellant specified that his statement of appeal has to be considered as a combined statement of appeal and appeal brief and that he limited his request for a stay to the imposed sporting sanction. He mentioned the financial consequences of such sanction and alleged that his request for a stay is justified as he would already have been sanctioned for the same facts by the Single Judge of Player s Status Committee and that a second condemnation by the Dispute Resolution Chamber would breach the res judicata and legality principle. By letter dated 27 October 2008, the CAS invited the Respondent to express its view on the request for a stay filed by the Appellant on or before 4 November According to the Libyan Football Federation, it forwarded this letter to the Respondent on 5 November By letter dated 31 October 2008, the Appellant urged the CAS to issue quickly a decision on his request for a stay in order to put an end to the sporting and financial harm he was suffering. He furthermore underlined that such a suspension would in no case affect the interests of the Respondent.

4 4 By letter dated 7 November 2008, the Respondent stated that it cannot agree to request to hold the decision taken against the player by the dispute resolution chamber since the player didn t accept the instruction issued by FIFA for him to return to the club Alittihad until the end of the contract. FIFA has so far not filed any request for intervention. Up to the date of this order, FIFA is however clearly not a party in this case. LAW Jurisdiction and Admissibility 1. Pursuant to art. 183 of the Swiss Private International Law Act, an international arbitral tribunal sitting in Switzerland is empowered to order provisional or conservatory measures at the request of one party. 2. Pursuant to art. R37 of the Code of Sports-related Arbitration ( the Code ), the President of the Appeals Arbitration Division (the Division President) may, upon application by one of the parties, issue an order for provisional or conservatory measures. 3. Pursuant to art. R52 of the Code, the President of the Appeals Arbitration Division may, upon application by the Appellant, provisionally stay the execution of the appealed decision. 4. The CAS jurisdiction results in casu from art. R47 of the Code and from art. 61 of the FIFA Statutes. Furthermore, the jurisdiction of the CAS to decide on this dispute has not been challenged by the parties. 5. Filed within the deadline set by art. 61 of the FIFA Statutes, the appeal is admissible. 6. The observations filed by the Appellant on 25 and 31 October 2008 are not admissible as far as they complete his request for a stay, considering that the Appellant has not been invited to file them. 7. With respect to the submission of the Respondent, even if it has been filed after the deadline until 4 November 2008, the Division President deems that it is admissible as the Respondent (1) actually received the CAS letter inviting him to file its observations only after the expiration of this deadline; (2) was initially granted a deadline of one week from receipt of the Appellant s clarification and (3) already filed it submission two days after receipt of the above-mentioned CAS letter.

5 5 Analysis 8. The Player has applied to stay the execution of sporting sanction imposed on him by the decision issued on 7 May 2008 by the FIFA Dispute Resolution Chamber. Pursuant to art. R37 and R52 of the Code, such application is treated as a request for provisional and conservatory measures. 9. In accordance with consistent CAS jurisprudence, as a general rule, when deciding whether to stay the execution of the decision appealed from, CAS considers: (a) (b) (c) 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 2008/A/1453, CAS 2008/A/1630, CAS 2008/A/1680). whether the measure is useful to protect the applicant from irreparable harm ( irreparable harm test): The Appellant must demonstrate that the requested measures are necessary in order to protect his position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage (CAS 2007/A/ , CAS 2008/A/1630, CAS 2008/A/1680). whether the interests of the applicant outweigh those of the opposite party and of third parties ( balance of interest test): It is then necessary to compare the disadvantage to the Appellant of immediate execution of the decision with the disadvantages for the Respondent in being deprived such execution (CAS 2008/A/1453, CAS 2008/A/1630, CAS 2008/A/1680). In accordance with the CAS case law, these three factors are cumulative (see CAS 98/200, CAS 2007/A/1397 and CAS 2008/A/1680). 10. Pursuant to CAS jurisprudence, summarised by the Panel in charge of the cases CAS 2007/A/1329 & 1330: Under Swiss law, applicable pursuant to Articles 60.2 of the FIFA Statutes and R58 of the CAS Code, 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 [ ]) (CAS 2007/A/1329 & 1330, para. 27). 11. In the statements of appeal, the Appellant named the Club Al Ittihad as Respondent but not FIFA. 12. While this club clearly has standing to be sued with respect to the financial aspect of this case as it would clearly be affected by what the Appellant is seeking (the annulment of an order to pay it USD 45,000), the Division President deems that this is not the case with respect to the imposed sporting sanctions. 13. Indeed, with respect to the sporting sanction, the Appellant is not claiming anything against the club nor seeking anything from it.

6 6 14. In the President of the CAS Appeals Arbitration Division s view with respect to the imposed sporting sanction, the Appellant is seeking something only against FIFA and the relief requested affects FIFA only and, indirectly, the new club of the Appellant, the Tunisian Club Africain. 15. Therefore, according to the President, only FIFA, and not the Respondent, would have been a legitimate respondent to the appeal brought before the CAS insofar as it concerned the restriction of four months on his eligibility to play in official matches imposed on the player. In other words, the Respondent would probably not have standing to be sued (légitimation passive) and could not be summoned as respondent on this regards. 16. Therefore, the President of the CAS Appeals Arbitration Division deems that, as per the present situation, the Player has not made a plausible case that the material criteria for a cause of action are fulfilled with respect to his challenge of the sporting sanction imposed on him. 17. Should, at a later stage, FIFA become a Respondent in this case, the Appellant would still have the opportunity to file a new request for a stay based on this new fact. 18. The Appellant having failed to meet the likelihood of success test, the President deems that there is here no need to assess the other conditions and that the application for a stay of the challenged decision shall be dismissed. In view of the Articles R37 and R52 of the Code of Sports-related Arbitration, the President of the CAS Appeals Arbitration Division hereby rules: 1. The request for a stay filed by Mr. Alexis Enam is dismissed. 2. ( ).