Barcelona Sporting Club v. Benito Floro Sanz, Fédération Internationale de Football Association (FIFA)

I. INTRODUCTION

1. This appeal by the football club Sporting Club Barcelona (hereinafter also “the Appellant” or “the Club”) against a decision (hereinafter referred to as “the Decision”) rendered by the Single Judge of the FIFA Player’s status Committee (hereinafter referred to as “the Single Judge”) is particular in the sense that the Appellant only contests before CAS the competence of the Single Judge to deal with its case and does not contest the Single Judge’s findings on

the merits. The Panel will therefore only address, in the present award, the question whether the Single Judge was competent to deal with the case at hand.

II. THE PARTIES

2. The Appellant is an Ecuadorian football club, affiliated with the Federación Ecuatoriana de Fútbol (“FEF”), which in turn is affiliated with FIFA.

3. Mr Benito Floro Sanz (also referred to as the “First Respondent” or the “Coach”) is a Spanish football coach exercising his activity with a license delivered by the Spanish Football Federation.

4. FIFA is the global governing body of football. It exercises regulatory, supervisory and disciplinary functions over national associations, clubs, officials and players around the world. FIFA is an association established under Swiss law with headquarters in Zurich, Switzerland.

VI. THE PARTIES’ REQUESTS FOR RELIEF

34. The Appellant’s requests for relief are the following:

“Without prejudice to any amendment of the present request for relief that this party reserves the right to make in the Appeal Brief, the Appellant, Barcelona Sporting Club, respectfully requests the CAS to: 1. Annul the Decision of the FIFA Dispute Resolution Chamber passed on November 14 th, 2012, declaring that the FIFA Dispute Resolution Chamber was competent to issue a decision on the dispute between M. Floro and Barcelona Sporting Club. 2. Declare that the Mediation and Dispute Resolution Chamber of the Ecuadorian Football Federation was the only competent body to resolve the dispute between the Respondent, Mr. Benito Floro Sanz, and the Appellant, Barcelona Sporting Club. 3. To order the respondent(s) to pay the full costs of the present arbitral proceedings. 4. To order the respondent(s) to pay a contribution towards Barcelona Sporting Club’s legal costs in an amount of 5.000 EUR”.

35. The First Respondent’s requests for relief are the following:

“For all the above reasons, Mr. Benito Floro Sanz respectfully requests the Panel to: 1. Reject the appeal lodged by Barcelona Sporting Club against the Decision of 14 November 2012. 2. Confirm the Decision in its entirety. 3. Sentence Barcelona Sporting Club to pay the entire costs of the arbitral proceedings before the CAS.

4. Sentence Barcelona Sporting Club to pay a contribution towards Mr. Floro’s legal fees in the amount of EUR 5.000”.

36. The Second Respondent’s requests for relief are the following:

“In the light of all the above considerations, we request for the present appeal against the challenged decision of the Single Judge of the Player’s Status Committee dated 14 November 2012 to be rejected and the relevant decision to be confirmed in its entirety. All costs related to the present procedure as well as the legal expenses of the Second Respondent shall be borne by the Appellant”.

VIII. MERITS

50. The following refers to the substance of the Parties’ allegations and arguments without listing them exhaustively. In its discussion of the case and its findings on the question of jurisdiction which was, as explained, the only issue raised before CAS in the appeals, the Panel has nevertheless examined and taken into account all of the Parties’ allegations, arguments and evidence on record, whether or not expressly referred to in what immediately follows.

A. The competence of the Single Judge

51. The Appellant considers that FIFA’s “Dispute Resolution Chamber” was not competent to decide on the claim submitted by the First Respondent against the Appellant, but deems that the CMRD was the competent body that should have adjudicated in the present matter. The

Appellant bases its assumption on clause 12 of the Employment Agreement signed between the Appellant and the First Respondent, according to which: “En caso de conflicto derivado del cumplimiento de este contrato, las partes renuncian a fuero y domicilio y se someten la instancia de mediación previa que dispone el artículo 36 de la Ley de Futbolista Profesional y posterior arbitraje ante el Tribunal Especial Arbitral de la Federación Ecuatoriana de Fútbol, luego de lo cual y en caso de no existir acuerdo acudirán ante los departamentos y comisiones de la FIFA que consideren pertinentes”.

This can be translated in English, as follows: “In the event of a conflict derived from the compliance of this agreement, the parties hereby waive their domicile and jurisdiction rights and submit to a process of a prior mediation as provided by article 36 of the Professional Soccer Player Act and a further arbitration before the Special Arbitration Tribunal of the Ecuadorian Soccer Federation, after which and in the event that no agreement is reached, they shall appear before FIFA’s departments and commissions that they deem appropriate”.

52. In addition, the Appellant refers to clause 7 of the Termination Agreement, according to which:

“[…] DECLARACIONES Y JURISDICCION: Con la firma del presente convenio queda terminado en todas sus cláusulas y estipulaciones a partir del 5 de julio de 2009 el anterior contrato de prestación de servicios profesionales suscrito por ambos en enero del presente año 2009 quedando ambas partes totalmente desvinculadas, reconociéndose mutuamente no tener ningún otro compromiso que les obligue emanante de aquel y sometidos a los organismos competentes de la Federación Ecuatoriana de Fútbol y de la FIFA para resolver cualquier conflicto derivado del incumplimiento del presente contrato por cualquiera de las partes […]”.

This can be translated in English, as follows:

“[…] PRONOUNCEMENTS AND JURISDICTION: Upon the signature of this agreement, it is herein terminated, as of 5 July 2009, all clauses and provisions of the professional serv ices agreement, executed by the parties on January 2009, being both parties completely and fully released of all liabilities there provided, acknowledging reciprocally that they do not have any other binding commitment that such one and submitted to competent entities of the Ecuadorian Soccer Federation and FIFA to solve any conflict derived from the breach of this agreement by any of the parties […]”.

53. In this respect, and for the sake of good order, the Panel firstly notes that the Decision was taken by the Single Judge and not by the Dispute Resolution Chamber, as incorrectly stated in the Appellant’s appeal.

54. In accordance with Article 22 lit. c) in conjunction with Article 23 par. 3 of the Regulations on the Status and Transfer of Players (hereinafter referred to as the “Regulations”), the FIFA Player’s Status Committee, as well as, under certain circumstances, its Single Judge, is, as a general rule, competent to deal with employment-related disputes between a club and a coach of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings exists at national level. This means that if an independent arbitration tribunal

guaranteeing fair proceedings exists at national level, even a dispute between the aforementioned parties that has an international dimension may be referred to the national body, provided that the parties have explicitly chosen the national body by means of a respective agreement on jurisdiction. Yet, in case despite the parties’ choice of forum in fa vour of a national body one of the parties nevertheless refers a possible dispute to the FIFA Player’s Status Committee and the counterparty contests the competence of the FIFA body, the FIFA Player’s Status Committee would examine if the national body is an independent arbitration tribunal guaranteeing fair proceedings. Should this be the case, the FIFA body should decline its jurisdiction and refer the parties to the national body. However, if the relevant requirements are not met, the FIFA Player’s Status Committee should not recognise the jurisdiction of the national body and thus accept its competence to adjudicate in the matter as to the substance.

55. With regard to the present matter, the Panel stresses that the First Respondent has chosen to refer the dispute to the FIFA Player’s Status Committee and the Appellant has contested the competence of said FIFA body, arguing that based on clause 12 of the Employment Agreement and Clause 7 of the Termination Agreement, the CMRD was the competent body that should have adjudicated in the present matter. Thus, and as described above, the competent FIFA body had to examine, based on the documents provided, if the CMRD is an independent arbitration tribunal guaranteeing fair proceedings.

56. In this context, it must be proved by the Appellant that the national body meets the minimum procedural standards. In other words and following the general principle that any party claiming a right on the basis of an alleged fact has to carry the burden of proof (Article 12 par. 3 of the Rules Governing the Procedures of the Player’s Status Committee and the Dispute Resolution Chamber (hereinafter referred to as the “Procedural Rules”), and Article 8 of the Swiss Civil Code), it is up to the party contesting jurisdiction of the FIFA body and claiming that the national body meets the relevant prerequisites, in casu the Appellant, to prove the existence of such a body at national level.

57. The criteria that must be fulfilled for an arbitration tribunal to be classed as independent and duly constituted under the terms of Article 60 par. 3 lit. c) of the FIFA Statutes are listed in the FIFA Circular letter n° 1010 dated 20 December 2005. In this document, FIFA stated inter alia the following:

“[…] the terms “independent” and “duly constituted” in accordance with art. 60 par. 3 (c) of the FIFA Statutes require that an arbitration tribunal meet the minimum (international) procedural standard as laid down in several laws and rules of procedure for arbitration tribunals. This minimum procedural sta ndard comprises the following conditions and principles:

• Principle of parity when constituting the arbitration tribunal […];

• Right to an independent and impartial tribunal […];

• Principle of a fair hearing […];

• Right to contentious proceedings […];

• Principle of equal treatment […]”.

58. Bearing in mind the above, it has to be concluded that in accordance with Article 12 par. 3 of the Procedural Rules, recalling the principle of the burden of proof, it is for the Appellant, who deems that not the Single Judge, but the CMRD is the competent body that should have adjudicated in the present matter, to provide evidence to demonstrate that the CMRD is in compliance with the minimum procedural standards for an independent arbitration tribunal guaranteeing fair proceedings.

59. In this regard, the Panel notes that the Appellant did not submit, neither before the Single Judge, nor before CAS, any documentation whatsoever, together with its appeal brief, which would establish that the CMRD would have been the competent body to deal with the matter at stake, i.e. that it meets the minimum procedural standards to be considered as an independent arbitration tribunal guaranteeing fair proceedings.

60. Therefore, in view of the Panel’s conclusion with regard to the nature of the CMRD, the Panel concludes that FIFA’s relevant body was competent to hear the dispute at hand.

61. Notwithstanding the above, and for the sake of good order only, the Panel would like to refer to the “Reglamento de la Cámara de Mediación y Resolución de Disputas de la Federación Ecuatoriana de Fútbol” (hereinafter referred to as the “CMRD Regulations”).

62. From the said set of rules, it appears that a national deciding body indeed exists within the FEF, i.e. the CMRD.

63. In this regard, when analysing the respective set of rules, and in particular the rules governing the jurisdiction of the aforesaid national deciding body, the Panel notes that the CMRD is competent to decide on disputes “entre un club y un jugador […]” (in English: “between a club and a player […]”) (Art. 1 of the CMRD Regulations).

64. In view of the aforementioned and in the absence of any evidence provided by the Appellant of the contrary, it can be determined that the CMRD is not competent to deal with disputes between a club and a coach.

65. The Panel must therefore conclude that the CMRD would clearly not, in any circumstances, have been competent to hear the dispute between the First Respondent and the Appellant, since such dispute would not have fallen with the jurisdiction of the CMRD.

66. Furthermore, the Panel notes that in any event, by signing the termination agreement the parties cancelled the Employment Agreement and thus in case of a dispute in respect of the termination Agreement (as is the case at stake) there is no relevancy any more to the article on jurisdiction that existed in the Employment Agreement (Art. 12) and the only relevant contractual clause on jurisdiction is Art. 7 of the Termination Agreement. Therefore the attempt of the Appellant to rely on Art. 12 of the Employment Agreement in order to support his arguments on jurisdiction is denied.

67. According to clause 7 of the Termination Agreement the parties are “[…]sometidos a los organismos competentes de la Federación Ecuatoriana de Fútbol y de la FIFA para resolver cualquier conflicto

derivado del incumplimiento del presente contrato por cualquiera de las partes […]” (In English: “[…]subject to the competent bodies of the Ecuadorian Soccer Federation and FIFA to solve any conflict derived from the breach of this agreement by any of the parties […]” (emphasis added). Therefore, it can be understood that according to said clause the parties could lodge a claim in front of the competent deciding bodies of the FEF and FIFA. In this context the word “and” should be interpreted as establishing an alternative venue and not an accumulated one which has no sense.Therefore, the Panel finds that the respective deciding body of the FEF by no means had the exclusive competence to deal with a dispute arising from the execution of the Termination Agre ement.

68. In view of all the above, the Panel concludes that the Single Judge was competent to decide the case and that the Single Judge’s decision in this regard shall be confirmed.

B. The substance of the case

69. As seen above, the Appellant did not contest the findings of the Single Judge with regard to the substance of the case, i.e. the compensation to be paid to the First Respondent following the breach of contract by the Appellant.

70. The Panel therefore concludes that the findings of the Single Judge in this regard shall also be confirmed.

IX. CONCLUSION

71. In view of all the above, the Panel concludes that:

• The Appellant could not prove that the CMRD would have been the competent tribunal due to the fact that the latter national deciding body constitutes an independent arbitration tribunal guaranteeing fair proceedings, in accordance with Article 22 lit c) of the Regulations, completed by Circular letter n° 1010 dated 20 December 2005.;

• In the absence of any independent arbitration tribunal guaranteeing fair proceedings at the national level, the Single Judge was competent to hear the present international dispute between a club and a coach;

• In any circumstances, Article 1 of the CMRD Regulation stipulates that the CMRD is competent to hear disputes between a club and a player, which is not the case in the present dispute, the latter being between a club and a coach;

• As the Single Judge was competent to hear the dispute and as the Appellant did not challenge the latter’s conclusion on the substance of the case, the Decision shall be confirmed.