Jan 12, 2019

Do Civil Courts Really Lack Jurisdiction Over All Football Disputes? | Tosin Akinyemi Esq.

One of the main goals of FIFA (especially as regards club football) is the maintenance of contractual stability amongst its members. To this end, it has statutes and regulations guiding relationships, as well as dispute resolution and disciplinary bodies, which help settle disputes and punish erring members respectively.

The general prohibition

Due to the specificity of sports, FIFA generally expects parties to approach football/sports tribunals whenever disputes arise. Thus, FIFA expressly bars its members (Member associations of FIFA, confederations, clubs, players, coaches, or licensed match agents) from approaching civil courts.
Article 59 (2) of the FIFA Statutes (2018)provides thus:
“Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.”

The exception to the general rule

While many people are aware that there is a prohibition contained in the FIFA Statutes, most of them do not know that the prohibition is subject to any contrary provision contained in any other Regulations of FIFA. Note that it says: “…unless specifically provided for in the FIFA Regulations”.
In light of the above observation, the question to ask is: is there any other Regulation of FIFA that specifically permits recourse to ordinary courts as regards some subject matters? The answer is yes!
Article 22 of the Regulations on the Status and Transfer of Players (RSTP) 2018 permits Clubs, Players (and by extension, Coaches) to approach civil (ordinary) courts as regards employment-related disputes. It provides thus:
Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear…”
If the two provisions quoted above are read conjunctively (as they should be), they obviously establish the fact that civil courts have jurisdiction over football disputes, where the parties are clubs, or players or coaches, if the dispute stems from an employment relationship.
In further support of this, there are some decisions of the Dispute Resolution Chamber of FIFA, where it has decided that Clubs, Players and Coaches have the right to approach civil courts as regards employment-related disputes. For instance, in the DRC Decision of 16th October 2014, No. 10143276, the DRC held that the RSTP does not bar players and clubs from referring employment-related disputes that have possibly arisen, to the local national courts. See also FIFA Commentary, explanation on Article 22, at page 64.

Even the Rules of a national League cannot be a bar

In addition, it does not matter if the League Rules of a nation or the Statute of its national football association expressly prohibit recourse to civil courts. This is because, the provisions of the FIFA Statutes and the RSTP take precedence in such cases. It is only the employment contract between the club and player or coach (as agreed between the parties) that can deny civil courts of jurisdiction, if it expressly provides that recourse to civil courts as regards any dispute is prohibited, or if it expresslyprovides that disputes shall be settled only by sports tribunals (such as that country’s Players’ Status Committee (PSC), National Dispute Resolution Chamber (NDRC) of that country, PSC of the Confederation, FIFA or CAS).
In fact, it has been held in previous CAS Arbitral Awards that it is not sufficient (and cannot stand as a bar) if the employment contract merely states that the parties shall abide by the provisions of the League’s Rules and/or the Statute of its national football association. It has been decided that the employment contract has to expressly and unequivocally confer jurisdiction on the national dispute tribunal of that country for it to deny any other platform of jurisdiction. See CAS 2014/A/3682 Lamontville Golden Arrows Football FC v. Kurt Kowarz & Fédération Internationale de Football Association (FIFA), award of 14 July 2015 where it was held that the requirement for a clear reference in the employment contract to the jurisdiction of an independent arbitration tribunal applies to both players and coaches. In this respect, see also, Article 22 (b) of the RSTP (2018).
It is worthy to note that FIFA Commentary on the RSTP (footnote 101 on page 66) expressly provides that to invoke the jurisdiction of an independent arbitration tribunal at national level, ‘a clear reference to the competence of the national tribunal has to be included in the contract of employment’ and that ‘at the moment of signing the contract the parties shall be submitting potential disputes related to their employment relationship to this body’.

What happens where the national tribunal stated in a contract is not constituted or functional?

Conclusively, it is my opinion that even where the employment contract expressly and unequivocally confers jurisdiction on the national football tribunal of a country, in the event that such tribunal is not constituted, or is not functional [as in the case of the Arbitration Committee of the Nigerian Football Federation (NFF)], a party may decide to approach a civil court (in the case of a Nigerian Player or Coach), or the FIFA PSC or DRC (in the case of a foreign Player or Coach), if such party has first written to the NFF Arbitration Committee wherein it submitted the dispute to it for adjudication, but the Committee failed to act (as is often the case).
A cue can be taken from Article 22(c) of the RSTP which has been interpreted to mean that FIFA would assume jurisdiction in employment-related disputes of “international dimension” where there is no “existence” of a national arbitration tribunal. It can, in the same vein be argued that in the absence of a national arbitration tribunal, employment-related disputes of “national dimension” can alternatively be tabled before civil courts; especially where it can be established that the supposed existing national arbitral tribunal has not been carrying out its function. In the case of Nigeria, I am aware that the NFF Arbitration Committee has not given Decisions over employment-related disputes (overdue payables) since its 2010 set of decisions; most of which have not even been complied with by the concerned clubs till date. This is perhaps what gives a host of Nigerian clubs the guts to owe players and coaches, knowing fully-well that there would be no consequence.
In such a circumstance, i am of the view that the National Industrial Court would not reject jurisdiction over such a case if it is approached, in order to end players and coaches being at the mercy of non-constituted or non-functional national arbitration tribunals.
Written by: ‘Tosin Akinyemi, Esq.
Source: Sportlicitors