CAS 2015/A/4186
FK Bohemians Praha v. Fédération Internationale de Football Association (FIFA)
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Arbitration CAS 2015/A/4186 FK Bohemians Praha v. Fédération Internationale de Football Association (FIFA), award of 30 May 2016
Panel: Mr Sofoklis Pilavios (Greece), President; Mr Michele Bernasconi (Switzerland); Mr Patrick Lafranchi (Switzerland)
Football Request for the grounds of a decision Defective fax messages
In case of receipt of a fax message that clearly appears to be defective (here: three blank fax pages) it is reasonable to expect the receiver of the fax to determine that the fax transmission at issue was incomplete or otherwise defective; the receiver is furthermore under an imperative duty in good faith to notify the sender and report back the error indicating that the received material was incomplete. This is fair and reasonable, especially in case all defective faxed pages are actually reported as received by the receiver’s hosting fax service system. Otherwise the sender would rely on the positive fax reports assuming that the fax transmissions at issue have been completed. This is even more applicable in case the fax is received by FIFA; considering that FIFA is the international federation governing the sport of football worldwide and is also responsible for the administration of adjudication proceedings in front of its committees, namely the Players’ Status Committee and the Dispute Resolution Chamber, it is fair to expect that it undertakes reasonable efforts to ensure a reliable and secure notifications’ system in such proceedings, especially in cases where substantive rights of the parties may be seriously prejudiced.
I. PARTIES
1. FK Bohemians Praha (the “Appellant” or the “Club”) is a professional football club and member of the Football Association of the Czech Republic with its registered office in Prague, Czech Republic.
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2. The Fédération Internationale de Football Association (the “Respondent” or “FIFA”) is the international federation governing the sport of football worldwide based in Zurich, Switzerland.
II. FACTUAL BACKGROUND — A. Background Facts
3. Below is a summary of the main relevant facts as presented in the parties’ written submissions in the course of the present proceedings. Additional facts may be set out, where relevant, in connection with the legal discussion.
4. On 19 March 2013, the Single Judge of the FIFA Players’ Status Committee, within the context of a contractual dispute between the Belgian club CS Visé and the Appellant, decided that the Appellant had to pay CS Visé the amount of EUR 15,000 within 30 days as from the date of notification of the Decision (the “Decision of the Single Judge of PSC”).
5. The aforementioned Decision stated further that if the sum awarded to CS Visé was not paid within the specified deadline, interest at a rate of 5% p.a. would fall due as of the expiry of the time limit and the matter would be submitted upon request to FIFA’s Disciplinary Committee.
6. On 10 April 2013, the operative part of the Decision of the Single Judge of PSC was communicated to the parties as well as to the Belgian Football Association and to the Football Association of the Czech Republic.
7. On 15 August 2013, the FIFA Players’ Status and Governance Department reminded the Appellant of its obligation to pay the amount of EUR 15,000 to CS Visé under the Decision of the Single Judge of PSC and granted a deadline until 26 August 2013 in order to provide confirmation of payment.
8. On 23 August 2013, the Appellant, by its letter to FIFA, contended that it had already submitted a request for the grounds of the Decision of the Single Judge of PSC by fax on 20 April 2013, but the motivated part of the Decision had not been released yet. For this purpose, the Appellant requested “information about the duly submitted request for the grounds of the decision” and further asked for an extension of the deadline to effect payment until 16 September 2013 “due to doubts about the submitted request which may in consequence have led to deprivation of the right of appeal”.
9. On 13 September 2013, the FIFA Players’ Status and Governance Department replied to the Appellant that the request for the grounds of the Decision of the Single Judge had not been made within the ten-day time limit that had started running on 10 April 2013 and insisted that such request was put forward for the first time in the Appellant’s latest correspondence received on 28 August 2013, namely well outside the deadline. Consequently, FIFA informed the Appellant that such request could not be satisfied.
10. In October 2013, the Appellant and the FIFA Players’ Status and Governance Department exchanged further correspondence with respect to the matter on two more occasions, on 10 October 2013 and 29 October 2013, in which on the one side the Appellant reiterated its position that the request for the grounds of the Decision of the Single Judge of PSC had been made timely, i.e. on 20 April 2013, and FIFA on the other side insisted on its opinion that such request had been made outside the deadline.
11. On 19 November 2013, the FIFA Players’ and Governance Department informed the Appellant that, since the amount due under the Decision of the Single Judge of PSC had not been paid to CS Visé, the matter would be referred to the FIFA Disciplinary Committee for its consideration.
B. Proceedings before FIFA Disciplinary Committee
12. On 15 April 2014, the Secretariat of the FIFA Disciplinary Committee opened disciplinary proceedings against the Appellant with respect to its failure to pay the amount of EUR 15,000 which was already due to CS Visé under the Decision of the Single Judge of PSC of 19 March 2013.
13. On 30 April 2014, the Secretariat of the FIFA Disciplinary Committee invited the Appellant to pay the aforementioned amount until 13 May 2014, stating that otherwise the case would be submitted to the FIFA Disciplinary Committee for consideration on 22 May 2014.
14. On 19 May 2014, the Secretariat of the FIFA Disciplinary Committee invited again the Appellant to pay the amount due until 23 June 2014 and informed that the meeting of 22 May 2014 was cancelled and that the case was rescheduled to be submitted to the FIFA Disciplinary Committee for consideration on 6 July 2014.
15. The Appellant did not reply back to the aforementioned correspondence by the FIFA Disciplinary Committee.
16. On 6 July 2014, the FIFA Disciplinary Committee held a meeting in Rio De Janeiro, Brazil, and after considering the file of the case rendered Decision 140158 PST CZE Rio (the “Appealed Decision”) stipulating the following:
The Appellant is guilty of failing to comply with the decision of the Single Judge of the Players’ Status Committee of 19 March 2013 and was, therefore, in violation of art. 64 of the FIFA Disciplinary Code.
The Appellant is ordered to pay a fine to the amount of CHF 2,000. The fine was fixed to be paid within 30 days of notification of the decision.
The Appellant is granted a final period of grace of 30 days as of notification of the decision to settle its debt.
If payment is not made within the final deadline the creditor may demand in writing to the secretariat of the FIFA Disciplinary Committee that three points be deducted from the Appellant’s first team in the domestic league championship.
If the Appellant still fails to pay the amounts due even after the deduction of points as provided in this decision, the FIFA Disciplinary Committee will decide on a possible relegation of the Appellant’s first team to the next lower division.
17. On 7 August 2014, the operative part of the Appealed Decision was communicated by fax to the Appellant.
18. On 19 August 2014 the Secretariat of the FIFA Disciplinary Committee received a letter from the Football Association of the Czech Republic with a request from the Appellant dated 18 August 2014 for the grounds of the Appealed Decision.
19. On 20 July 2015, the motivated part of the Appealed Decision dated 6 July 2014 was delivered by courier to the Football Association of the Czech Republic. On 21 July 2015, the Football Association of the Czech Republic forwarded the motivated Appealed Decision by email to the Appellant.
20. The Appealed Decision determined inter alia, the following:
The findings of the decision of the Single Judge of 19 March 2013 were communicated to the parties on 10 April 2013, yet, none of the parties requested the grounds of the decision within the stipulated ten-day deadline provided in Article 15 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.
Consequently, the decision of the Single Judge of 19 March 2013 has become final and binding.
As a result, the Disciplinary Committee cannot review the substance of the findings of the Decision of the Single Judge and its task is confined in determining whether the party obliged to make a payment under such decision has fulfilled its respective obligation or not.
The Appellant, as the party that was held liable to make a payment according to the operative part of the Decision of the Single Judge failed to comply with its respective obligation and consequently it must be found guilty under the terms of Article 64 of the FIFA Disciplinary Code.
In view of the circumstances of the case and the amount due, a fine amounting to CHF 2,000 is appropriate on the basis of Article 64 par. 1 b) of the FIFA Disciplinary Code.
III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT
21. On 10 August 2015, the Appellant filed a Statement of Appeal with the Court of Arbitration for Sport (the “CAS”) against FIFA with respect to the Decision rendered by the FIFA Disciplinary Committee on 6 July 2014 (Decision 140158 PST CZE RIO).
22. On 11 August 2015, the CAS Court Office acknowledged receipt of the Statement of Appeal and invited the Appellant to provide a proof of payment of the Court Office fee under Article R65.2 of the Code of Sports-related Arbitration (the “Code”) and to nominate an arbitrator in accordance with Article R48 par.1 of the Code within three (3) days as of receipt of such correspondence.
23. On 17 August 2015, the Appellant nominated Mr Michele Bernasconi, attorney-at-law in Zurich, Switzerland, as arbitrator in this matter and provided confirmation of payment of the Court Office fee.
24. On 19 August 2015, the Appellant filed its Appeal Brief with the CAS. The concluding paragraph of the Appeal Brief contained a request for relief which was formulated as follows:
“Finally Football club Bohemians Praha, a.s. suggests that, after the presentation of the evidence before the CAS was issued a decision by which will be annulled the contested decision of the FIFA Disciplinary Committee dated July 6, 2014 as well as the Decision of the Single Judge from March 19, 2013”.
25. On 1 September 2015, FIFA nominated Mr Patrick Lafranchi, attorney-at-law in Bern, Switzerland, as arbitrator in the present matter.
26. On 15 September 2015, FIFA filed its Answer with the CAS whereby it requested the following:
“1. To reject the Appellant’s Appeal in its entirety. 2. To confirm the decision hereby appealed against. 3. To order the Appellant to bear all costs incurred with the present procedure and to cover all the Respondent’s legal expenses relating to the present procedure”.
27. On 16 September 2015, the CAS Court Office invited the parties to state by 23 September 2015 whether they prefer for a hearing to be held in this matter or for the Panel to issue an award based solely on the parties’ written submissions.
28. On 17 September 2015, FIFA informed the CAS Court Office of its preference for the matter to be decided solely on the parties’ written submissions without holding a hearing.
29. On 23 September 2015, the Appellant informed the CAS Court Office of its preference for a hearing to be held in the matter, however stating that it left the final decision to the Panel.
30. On 15 October 2015, pursuant to Article R54 of the CAS Code, the CAS Court Office informed the parties that the Panel appointed to decide the present matter was constituted by:
Mr Sofoklis P. Pilavios, attorney-at-law in Athens, Greece, as President; Mr Michele A. R. Bernasconi, attorney-at-law in Zurich, Switzerland, and; Mr Patrick Lafranchi, attorney-at-law in Bern, Switzerland, as arbitrators
31. On 17 November 2015, the CAS Court Office informed the parties that the Panel noted that the dispute arises with respect to the date on which the Appellant requested FIFA to release the grounds of the Decision of the Single Judge of 19 March 2013. Therefore, the Panel invited the Appellant to submit by 24 November 2015: (i) its comments with regard to the issue of the date on which it has asked the grounds of the Decision and (ii) proof of receipt of such letter by FIFA.
32. On 24 November 2015, the Appellant, in response to the letter by the CAS Court Office, filed further written submissions and presented two positive fax reports dated 20 April 2013 regarding two fax transmissions of a total number of three pages to FIFA, as evidence that it
had requested the grounds of the Decision of the Single Judge of PSC. These fax reports were already submitted together with the Appeal Brief on 19 August 2015.
33. On 26 November 2015, the CAS Court Office, on behalf of the Panel, invited FIFA to file its comments on the Appellant’s latest submissions until 3 December 2015.
34. On 2 December 2015, FIFA in response to the letter by the CAS Court Office, filed further submissions with comments on the Appellant’s submissions of 24 November 2015.
35. On 17 December 2015, the CAS Court Office informed the parties that the Panel noted that FIFA did not comment on the two positive fax reports dated 20 April 2013 that were presented by the Appellant. Therefore, FIFA was invited by 20 January 2016 to file its comments with respect to the aforementioned fax reports.
36. On 20 January 2016 FIFA, in response to the letter by the CAS Court Office, filed further submissions with its comments.
37. On 27 January 2016, the CAS Court Office invited the Appellant, within fifteen days upon receipt of such letter, to file its comments on the FIFA’s latest submissions of 20 January 2016.
38. On 12 February 2016, the Appellant in response to the letter by the CAS Court Office, filed further submissions with its comments.
39. On 18 February 2016, FIFA filed a letter stating that it did not wish to comment further on the Appellant’s latest submissions.
40. On 3 March 2016, the Panel issued an Order of Procedure informing the parties that it considered itself to be sufficiently well informed to decide the matter based on the written submissions without the need to hold a hearing. The parties were invited to return a signed copy of the Procedural Order to the CAS Court Office by 10 March 2016.
41. On 8 March 2016, FIFA returned a duly signed copy of the Order of Procedure to the CAS Court Office and subsequently, on 16 March 2016, the Appellant returned a duly signed copy of the Order of Procedure on its part.
IV. SUBMISSIONS OF THE PARTIES
42. The submissions of the Appellant as contained in its Statement of Appeal, its Appeal Brief and its further submissions of 24 November 2015 may be summarized in essence as follows:
- On 10 April 2013, the Appellant received notification of the terms of the Decision rendered by the Single Judge of the FIFA Players’ Status Committee on 19 March 2013, by means of which it was ordered to pay the Belgian Club CS Visé the amount of EUR 15,000.
The Appellant is not aware of any contractual basis that could have given rise to such claim by the Belgian Club and in essence disputes the findings of the aforementioned Decision.
The Appellant asserts that on 20 April 2013 it submitted a three page letter which contained a request for the grounds of the Decision of the Single Judge of PSC by means of two consecutive fax transmissions to FIFA’s fax number.
The Appellant relies on two positive fax reports that confirm the successful delivery of a total number of three pages by means of two consecutive fax transmissions to FIFA’s fax number [0041 43 222 77 55] on 20 April 2013. Each of the fax transmission reports indicates the fax number of the recipient, the number of pages sent, the result of the transmission and the time; the first indicating time of transmission of one page at 11:12, and the second time of transmission of two pages at 11:14.
The Appellant argues that the fax transmission reports provide adequate proof that it had duly submitted its request to FIFA within the specified ten-day deadline on 20 April 2013. No further evidence or record could be produced as evidence to verify this fact and, consequently, the Appellant has discharged its burden of proof for this purpose.
The Appellant further maintains that it filed again the same request on 28 August 2013 by means of a new fax whereby it also informed FIFA that it had already submitted such request by a previous fax dated 20 April 2013 and dispatched the respective fax reports.
The Appellant insists that despite its valid request FIFA did not communicate the grounds of the decision of the Single Judge of PSC of 19 March 2013 and as a result the Appellant was wrongly deprived of the right to appeal and the right to defend its substantive rights against it.
On these grounds, the Appellant maintains that there is no legal ground for the imposition of sanctions and the Decision of the Disciplinary Committee of 6 July 2014 should be annulled.
43. The submissions of FIFA, contained in its Answer and its further submissions of 2 December 2015 and 20 January 2016 may be summarized in essence as follows:
The terms of the Decision of the Single Judge of PSC of 19 March 2013 were notified to the Appellant on 10 April 2013.
The terms were accompanied by a Note according to which the parties were clearly informed that they have ten days from receipt of the findings of the decision to request the grounds of the decision and that failure to do so would result in the decision becoming final and binding.
The Appellant was fully granted the possibility to defend and protect its rights regarding the aforementioned Decision.
The Appellant did not submit such request to FIFA within the specified ten days deadline.
The Decision of the Disciplinary Committee of 6 July 2014 applied correctly Article 64 of the FIFA Disciplinary Code.
FIFA invokes Article R57 par. 3 of the CAS Code and requests the Panel to exclude the fax transmission reports dated 20 April 2013 that have been submitted as evidence, on account of the Appellant’s failure to submit said documents to the consideration of the FIFA Disciplinary Committee before it passed its Decision of 6 July 2014.
The fax transmission reports presented by the Appellant are incomplete as they do not indicate the fax number of the sender.
FIFA ITC department confirms that on 20 April 2013 FIFA received two fax messages from the same telephone line located in the Czech Republic of a total number of three pages. These two faxes messages were received consecutively at two different times, the first at 11:12 containing one page and the second at 11:14 containing two pages.
However, these faxes messages were received as three completely blank and empty pages with no content and no information whatsoever as to the sender or the matter referred to.
Therefore, it was impossible to determine to which matter these two empty fax messages actually corresponded.
In light of the above, it can only be concluded that the Appellant did not submit any fax to FIFA on 20 April 2013 with a valid request for the grounds of the Decision of the Single Judge of PSC of 19 March 2013.
44. The comments of the Appellant contained in the written submissions of 12 February 2016 may be summarized as follows:
The fax transmission reports contain all information required by law, namely date, time, number of pages transmitted, identification of the recipient and the transmission result.
FIFA ITC department confirmed that FIFA received two faxes from a telephone line in the Czech Republic on 20 April 2013. The time of receipt of both faxes corresponds precisely with the time displayed on the fax transmission reports and the telephone line indicated as the calling party corresponds to the telephone number used by the Appellant at that time.
The Appellant reasonably relied on these two fax transmission reports as positive confirmation that the fax transmissions to FIFA on 20 April 2013 were successfully completed.
The fact that the faxed pages were not properly received by FIFA - possibly due to technical reasons - cannot be used to the detriment of the Appellant.
The Appellant already notified FIFA about its fax of 20 April 2013 with its letters on 28 August 2013 and of 10 October 2013. Therefore, FIFA’s request to exclude the fax transmission reports dated 20 April 2013 as evidence on the basis of Article R57 par. 3 of the CAS Code shall be rejected.
V. ADMISSIBILITY
45. Article R49 of the Code provides as follows:
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. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late.
46. The motivated decision of the FIFA Disciplinary Committee of 6 July 2014 was delivered by courier to the Football Association of the Czech Republic on 20 July 2015. The Football Association of the Czech Republic subsequently forwarded the motivated decision to the Appellant and to its legal representative by email on 21 July 2015. The Appellant filed its Statement of Appeal on 10 August 2015. Therefore, the 21-day deadline to file the appeal was met.
47. The Appeal Brief was filed on 19 August 2015, namely within the deadline prescribed at Article
48. The Panel, therefore, finds that the appeal is admissible.
VI. JURISDICTION
49. Article R47 of the Code provides as follows:
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.
50. The jurisdiction of CAS, derives from Article 67 par. 1 of the FIFA Statutes that provides as follows: “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” and Article R47 of the CAS Code.
51. The jurisdiction of CAS is further confirmed by the Order of Procedure duly signed by both parties. It therefore follows that CAS has jurisdiction to decide on the present dispute.
VII. APPLICABLE LAW
52. Article R58 of the Code provides as follows:
The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association
or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.
53. The Panel notes that Article 66 par. 2 of the FIFA Statutes provides the following:
The provisions of the CAS Code of Sports related Arbitration shall apply to the proceedings. CAS shall apply the various regulations of FIFA and additionally Swiss law.
54. The Panel therefore finds that the relevant FIFA rules and regulations, and more specifically the FIFA Disciplinary Code (FDC) and the FIFA Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, as in force at the relevant time of the dispute, shall be applied primarily, and Swiss law shall be applied subsidiarily.
VIII. MERITS
55. The Appealed Decision of the Disciplinary Committee of 6 July 2014 imposed sanctions on the Appellant pursuant to Article 64 of the FIFA Disciplinary Code, on account of its failure to pay the amount of EUR 15,000 to the Belgian club CS Visé, as ordered by the Decision of the Single Judge of PSC of 19 March 2013.
56. The principal ground for appeal put forward by the Appellant is that the Decision of the Single Judge of PSC has not become final and binding, as FIFA failed to release its grounds, even though the Appellant had duly submitted a respective request by fax on 20 April 2013, namely within the 10-day deadline from receipt of the findings on 10 April 2013, in accordance with Article 15 par. 1 of the FIFA Rules Governing the Procedures of Players’ Status Committee and Dispute Resolution Chamber. Therefore, the conditions for the imposition of sanctions by the Disciplinary Committee are not fulfilled.
57. To support its submission, the Appellant relies on two positive fax transmission reports dated 20 April 2013, that appear attached on a three page letter addressed to FIFA with a request to release the grounds of the Decision of the Single Judge of the PSC. These fax reports are purported to confirm the successful delivery of three pages to FIFA’s fax number on 20 April 2013 by two separate and consecutive fax transmissions, the first at 11:12 of one page, and the second at 11:14 of two pages.
58. FIFA, on the other hand, admits having received two fax messages on 20 April 2013 from a telephone line from the Czech Republic, the first at 11:12 with one page, and the second at 11:14 with two pages, yet contends that these fax messages were received completely blank, without any content or reference to the subject matter. As a result, FIFA maintains that no valid request for the grounds of the Decision of the Single Judge of PSC was ever made by the Appellant within the specified deadline.
59. In addition, FIFA claims that the fax reports at issue should be held inadmissible evidence in the present appeal proceedings on the basis of Article R57 par. 3 of the CAS Code, as the Appellant failed to submit same reports as evidence for the consideration of the FIFA Disciplinary Committee before it rendered the Appealed Decision.
60. In this regard, the Panel observes that the Appellant had brought the matter to the attention of FIFA before the present appeal proceedings, i.e. in its correspondence of 28 August 2013 and 10 October 2013 and had submitted for its consideration the respective fax reports. Besides, FIFA concedes having received two fax messages consisting of three pages on 20 April 2013, exactly as evidenced in the fax reports at issue. At any rate, these fax reports are central to the evaluation of the facts of the dispute, and for all these reasons the Panel finds that these documents are complete and constitute admissible evidence.
61. The central issue of fact that must be addressed in the present appeal proceedings is whether the Appellant requested the grounds of the Decision of the Single Judge of PSC within the tenday deadline that started running from notification of its findings on 10 April 2013, and more specifically whether this request was made properly by means of two consecutive fax transmissions to FIFA’s fax number on 20 April 2013 at 11:12 and 11:14.
62. The Panel notes that according to Article 19 par. 3 of FIFA Rules Governing the Procedures of Players’ Status Committee and Dispute Resolution Chamber [2010 edition], decisions communicated by fax shall be legally binding. It thus follows that delivery of documents by fax is a valid notification method between FIFA and interested parties.
63. The first question that needs to be examined is whether the fax transmission reports at issue qualify as sufficient and reliable evidence that the Appellant has actually sent by fax a total of three pages to FIFA’s fax number on the date and at the time indicated therein.
64. In the course of the present proceedings, FIFA did not dispute the information appearing on the fax transmission reports. In fact, FIFA positively confirmed to the Panel that it indeed received two fax messages transmitted from the Czech Republic consisting of three pages in total on the exact same date, namely on 20 April 2013 and at the exact same time, namely at 11:12 and subsequently at 11:14, corroborating the information displayed on the fax reports adduced by the Appellant.
65. Consequently, the accuracy of information contained in the fax transmission reports is not in question. Moreover, the fact that the Appellant has available on its record and presented the Panel with these fax reports leads to the conclusion that the respective fax transmissions took place under the Club’s responsibility or upon the Club’s instructions.
66. In light of the above considerations, the Panel is satisfied that the Appellant has sent by fax a three pages document to FIFA’s fax number on 20 April 2013.
67. The next relevant question and the key point of contention is whether the Appellant by these two fax transmissions of 20 April 2013 managed in effect to file properly a request to FIFA in a valid manner, in so far as the three pages document sent by the Appellant was actually received by FIFA within the specified deadline, yet with a serious defect, that is, completely empty, blank, without any content or reference.
68. It is fairly common knowledge that faxed documents may be misdirected or transmitted with defects due to technical errors thus creating legal controversy especially when a deadline has to be met.
69. The Panel observes that FIFA has not established a set of specific rules or guidelines regulating fax transmissions between FIFA’s services and interested parties in order to determine when a deadline is properly met. In the absence of such rules the Panel would have to resort to procedural rules of Swiss law that may be relevant and applicable by analogy.
70. In this respect, the Panel notes that Article 143 par. 2 of the Swiss Procedural Code provides as follows: “In case of electronic transmission, the deadline is met if the host system at the official electronic address of the court confirms the receipt no later than the last day of the limitation period”.
71. In light of the foregoing, it is significant to note that in the case at hand, FIFA was able to track down and verify the receipt of two incoming fax messages transmitted from the Czech Republic on 20 April 2013, exactly as evidenced by the fax transmission reports submitted by the Appellant. It is also important to take into account that by means of these two fax transmissions the Appellant intended to file an official request in accordance with Article 15 par. 1 of the Rules Governing the Procedures of PSC and DRC, namely to convey its intention to enforce a procedural right in front of FIFA. So, the fact that all three pages that the Appellant transmitted by fax on 20 April 2013 were ultimately received by FIFA on that same day, in other words entered the sphere of control and responsibility of FIFA, even though as an incomplete document, is a conclusive factor to confirm that the specified deadline has been met.
72. As regards the content of the faxed documents at issue, the Panel holds that FIFA, immediately upon receiving what clearly appeared to be a defective fax message, given that it conspicuously consisted only of empty pages, was reasonably expected to determine that the fax transmission at issue was incomplete by a manifest error. Therefore, FIFA as the receiver was under an imperative duty in good faith to notify the sender, in this case, the Appellant and report back the error indicating that the received material was incomplete. This is fair and reasonable, especially in view of the fact that all three defective faxed pages were actually reported as received by FIFA’s hosting fax service system.
73. Otherwise the sender, in the present case the Appellant, would rely on the positive fax reports assuming that the fax transmissions at issue have been completed. And so indeed, the information about the blank fax messages became known for the first time in the present appeal proceedings. At the relevant time of the fax transmissions, the Appellant had no indication and no plausible cause for concern that the faxed three pages document to FIFA was not properly received.
74. So, considering that FIFA is the international federation governing the sport of football worldwide and is also responsible for the administration of adjudication proceedings in front of its Committees, namely the Players’ Status Committee and the Dispute Resolution Chamber, it is fair to expect that it undertakes reasonable efforts to ensure a reliable and secure notifications’ system in such proceedings, especially in cases where substantive rights of the parties may be seriously prejudiced.
75. This duty corresponds to general standards of good faith inherent in FIFA’s administrative functions, and most certainly it does not involve an excessive administrative burden to FIFA, at least in cases of flagrant errors in incoming faxed messages that could be easily detected by a mere glance, as in the case at hand.
76. Instead, in the present case, FIFA completely ignored the defective fax messages and made no attempt to notify back the sender, namely the Appellant, even though the telephone number of the calling party was automatically recorded with FIFA’s hosting system and thus could have been easily reached in order to sort out the situation and correct the error. This could be expected from FIFA at the very latest when the Appellant drew the attention of FIFA to the fact that it had sent a fax on the relevant date.
77. Under these specific circumstances, the Appellant could reasonably place reliance on the two fax transmission reports dated 20 April 2013 as sufficient verification that the fax transmission of the three pages document with its request for the grounds of the Decision of the Single Judge of PSC to FIFA was submitted in a timely and valid manner, and thus, was justified to assume that no further action was required on its part for this purpose.
78. And although in the following months in August of 2013 and in October of 2013 the Appellant brought the matter to the attention of FIFA and communicated the respective fax reports, FIFA dismissed outright its allegations, and made no effort to track down receipt of any corresponding fax messages.
79. In light of the above, and taking into due consideration the very special circumstances of the present case, the Panel concludes that the deadline to request FIFA to release the grounds of the Decision of the Single Judge of PSC shall be deemed to have been met. Therefore, in accordance with Article 15 par. 1 of Rules Governing the Procedures of the PSC and DRC and in so far as FIFA has not yet released the motivated part of the Decision, said Decision is still not final and binding on the Appellant and the latter cannot be deemed as having waived its right to appeal against it.
80. This conclusion makes it now necessary for FIFA to communicate in full written form the grounds of the Decision of the Single Judge of the Players’ Status Committee passed on 19 March 2013 to the Appellant, as provided in Article 15 par. 2 of the Rules Governing the Procedures of the PSC and DRC.
81. Consequently, there is no scope for the application of Article 64 of the FDC and consequently, the Appealed Decision of the Disciplinary Committee of 6 July 2014 shall be set aside and annulled in its entirety. All other motions or prayers for relief are dismissed.
ON THESE GROUNDS
The Court of Arbitration for Sport rules that:
1. The appeal filed by FK Bohemians Praha on 10 August 2015 against the Decision issued by the Disciplinary Committee of the Fédération Internationale de Football Association on 6 July 2014 is upheld.
2. The Decision issued by the Disciplinary Committee of the Fédération Internationale de Football Association on 6 July 2014 is set aside.
(…)
5. All other motions or prayers for relief are dismissed.