The importance of meeting deadlines when appealing to the CAS: Eboué v FIFA

The Court of Arbitration for Sport (CAS) usually has the final word on matters brought to it on appeal. However, the procedure at the CAS may be a little different from the first or second instance.

The CAS procedure must follow the Code of Sports-related Arbitration and Mediation Rules¹ (the “CAS Code” - the latest version of which came into force on 1 January 2016) and these set the powers of the Panel and the process to follow.

All too often, appeals can fail at the first hurdles, before the merits have even been considered. Perhaps the hurdle that trips up applicants the most is the timeliness of the appeal. Accordingly, this piece examines:

• The importance of meeting the CAS deadlines for appeals
• The case of Emmanuel Eboue v FIFA
• Author’s comments

Deadlines deadlines deadlines!

The CAS operates under strict deadlines. Often the regulations of the sport’s governing body will give a certain number of days within which an appeal must be lodged at the CAS.

If there is no such deadline within the regulations, then pursuant to Article R49 of the CAS Code there is a 21-day window in which to bring to appeal. This is a hard deadline. If it’s not met, then the procedure will not be open to the CAS with the effect that the prior decision by the sport’s governing body will become final and binding upon the parties.

There are hundreds of disciplinary appeals to potentially comment on, but this section, will focus on an area that the author found particularly interesting in 2015, which is where lawyers representing clients that have missed the 21 day (or other) appeal window, subsequently look to bring appeals through the “back door”.

Emmanuel Eboue v FIFA

Emmanuel Eboue v FIFA² was one of the most important CAS cases of 2015. It highlights the result of missing the deadline and the inventive (but ultimately unsuccessful) ways his lawyers finally tried to appeal against the FIFA decision he was disciplined for not complying with.

Facts 

In this case the former Arsenal player ended up paying his former agent the best part of one million Euros for not acting for him in his move from Arsenal to Galatasaray!

In April 2010, the player and the agent signed a fairly typical 2 year representation agreement, albeit the player signed exclusively with the agent and allowed a clause into the representation agreement that even if the player did his own deal at any time during that 2 year term, his agent was entitled to receive 10% of his gross salary.

In August 2011 the player moved from Arsenal to Galatasaray, but chose to represent himself and not to use the services of the agent. His move to Galatasaray earned him remuneration of almost ten million Euros over the term of a 4-year contract and this, according to the agent, triggered the 10% payment obligation. 

In February 2012 the agent claimed 10% of the player’s gross wages and in July 2013 the FIFA Players’ Status Committee (PSC) awarded the agent almost one million Euros.

The difficulties arose for Mr Eboue when, although his lawyer had asked for the grounds of the original FIFA PSC decision (as FIFA tends to send the parties the ungrounded decision in the first instance and then any party can request the full, grounded decision, although this has cost consequences), once they received the full grounded award, no appeal was made to the CAS within the appropriate 21 day time limit. Indeed, it was some 5 or 6 months later, when the player had still not paid a single Euro to the agent, that the agent asked FIFA’s Disciplinary Committee to intervene and to discipline the player. 

In September 2014, FIFA’s Disciplinary Committee fined the player and stated that if the player had still not paid the agent after a further 120 days, then the agent could seek a one-year ban against the player, which would mean he would be unable to participate in football at all during such ban.

Having effectively lost his right to appeal against the original decision of the FIFA PSC to the CAS, and to challenge the decision that awarded the agent his commission, Mr. Eboue instead was left appealing to the CAS against the decision against him from the FIFA Disciplinary Committee. Nevertheless, he argued as follows:-

1. That he, personally, only received the original FIFA DRC decision in May 2014, 5 months after it had been handed down.
2. That FIFA’s Disciplinary Committee could only act on violations of FIFA Regulations, not contractual disputes.
3. That the FIFA Disciplinary Committee should have taken into account the invalidity of the representation agreement with the agent.
4. That the sanctions issued were not proportionate; and
5. Finally, that the potential sanction would offend the “ordre public” principle (or Swiss public policy) citing the Swiss Federal Tribunal’s Matuzalem decision (4a_558/2001).³

The reason for focusing on this case is that these are all clever arguments, but ultimately the CAS disagreed with each of them.

Decision

It turned out that the PSC’s grounded decision had actually been received by the player’s lawyer who had registered a valid Power of Attorney with FIFA. Whilst the relationship between the player and his lawyer might have ceased, the fact is that FIFA had sent it to the player’s official representative under the Power of Attorney. It was also clear that the player had plenty of time to pay or compromise with the agent before the Disciplinary Committee took its decision.

As regards the second argument, the CAS panel noted that Article 64.1 of the FIFA Disciplinary Code does not distinguish between claims based on FIFA’s own statutes or regulations and those of a contractual nature. The only pre-requisite was that there was an order from FIFA to pay a sum of money owed and that the payer was in default of this order. It was undisputed that Mr. Eboue had not paid a single Euro to the agent, despite the PSC decision.

Thirdly, whilst the player had claimed the representation agreement was null and void before the FIFA PSC, it had not accepted his arguments. Ordinarily, a dissatisfied party would have appealed the PSC decision to the CAS, so this argument is the classic back door attempt. In essence, if the underlying agreement is void, then there can’t be any breach of it, so to ignore a decision that says pay a sum due, that can’t be due, must be wrong. So the CAS Panel needs to go right back to square one and assess whether the agreement was void or not.

The Panel noted that the FIFA Disciplinary Code is only looking at whether a person has complied with a decision or not. Whether the underlying decision is correct or not is, on the face of it, irrelevant. For the Swiss Federal Tribunal to deem this incompatible with public policy (or ordre public) there must be obviously incorrect finding of a point of fact. Here the FIFA PSC had applied the pacta sunt servanda (agreements must be kept) principle and the player was unable to convince the Panel why the PSC decision infringed public policy in anyway.

The Panel, were not prepared to consider the arguments on the merits themselves de novo (afresh) as the player had his opportunity to ask the CAS to do this and missed the deadline. In the same way, had he appealed to the CAS and lost that appeal, still refused to pay and then been sanctioned by the FIFA Disciplinary Committee, no other CAS panel hearing an appeal against the disciplinary sanction would revisit the original CAS panel’s decision.

With regard to proportionality, the sanctioning within Article 64.1 of the FIFA Disciplinary Code had been reviewed by many other CAS panels and deemed proportionate. Here the player received a fine and then only after another 120 days would this escalate to the possibility of a one-year ban. 

This was in the hands of the agent and the player. The player would have to decide not to pay (it was felt that he had the means to pay looking at his new contract with Galatasaray) and then if he decided not to pay, the agent would still have to request the ban. Further, if at any stage the player paid during that one-year ban then the ban would be lifted. The Panel felt this was proportionate.

Finally, the Panel looked at the Matuzalem arguments.⁴ The key issues were the length of the ban and the economic implications of a ban which both needed to be weighed up against the interest of FIFA looking to enforce its decisions. The Panel felt this case was very different from Matuzalem’s. As stated above, the amount to pay was within the player’s means, the ban was not unlimited and was only a potential 1 year ban, where the player had chosen not to pay, as opposed to being unable to pay and being banned indefinitely as Mr. Matuzalem was. Again, the panel rejected the public policy arguments.

Ultimately, Mr Eboue missed his chance to appeal to the CAS on the merits as he wanted. Was the agreement really null and void? What was he promised by the agent? Is the commission rate too high? Did he have legal advice? What if he moved from Galatasary after the term of the representation agreement had ended – wouldn’t that end the agent’s claim? Etc.

The advantage of a CAS appeal is it would be de novo, it would be an oral hearing, with witnesses and the parties there to be examined. But, that opportunity was lost by missing the deadline and the decision of FIFA to pay the one million Euros and the fine and to do so within 120 days or face a lengthy ban became final and binding.

Comments

It is surprising how many people do miss their opportunity to appeal against an underlying decision and then find that decision becomes final and binding. If they ignore the final and binding decision then they will be disciplined.

It is often at that stage that the club or player “wakes up”, and then tries to fight against the disciplinary charges against them. More often than not this is hopeless, but as an arbitrator, the author find it fascinating to see the intelligent and inventive arguments that are put forward to try and find a way through that elusive backdoor! For sure, we’ll see many new ones in 2016 too.

This is an extract from the “Disciplinary Procedure” Chapter of the Sports Law Yearbook 2015/16 - UK, Ireland and EU, an eBook publication by LawInSport & British Association for Sport and Law.

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• Arbitration CAS Code Court of Arbitration for Sport (CAS) Dispute Resolution FIFA FIFA Disciplinary Code FIFA Disciplinary Committee FIFA Players’ Status Committee Football Governance Regulation Switzerland