Vladimir Simunovic, Sindikat Profesionalnih Fudbalera Nezavsinost (SPFN) v. Fédération Internationale de Football Association (FIFA)

II. FACTUAL BACKGROUND

4. A summary of the most relevant facts and the background giving rise to the present dispute will be developed based on the parties’ written submissions and the evidence filed with these submissions. Additional facts may be set out, where relevant, in connection with the legal discussion which follows. The Panel refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning. However, the Panel has considered all the factual allegations, legal arguments, and evidence submitted by the parties in the present proceedings.

5. On 9 December 2016, the Emergency Board of the Football Association of Serbia (the “FAS”) passed a decision through which the FAS changed the composition of the FAS Court of Arbitration (hereinafter also referred to as “FAS NDRC” or “Arbitral Tribunal”). The FAS Emergency Board dismissed the individuals who served as arbitrators on the NDRC, including its Chairman, and replaced those with new arbitrators, chosen and appointed by the FAS.

6. The FAS Emergency Board introduced some changes to the Rulebook of the Work of the Court of Arbitration of Serbia’s Football Association (the “FAS NDRC Procedural Rules”). This document governs the procedures in front of the FAS NDRC.

7. In this regard, the Appellants assumed that none of those changes to the composition of the FAS NDRC or the amendments to the FAS NDRC Procedural Rules had previously been discussed with the Union or the clubs in Serbia.

8. On 14 December 2016, FIFPRO, the World Players’ Union, after being made aware of the changes by its member SPFN, sent a letter to the FAS expressing discontent with the FAS changes without the involvement of the SPFN: “We have now come to learn that apparently, your Association has – without any involvement of our member, the Sindikat (SPFN) – amended the Procedural Rules governing the proceedings of your National Dispute Resolution Chamber (NDRC), and that, simultaneously, your Association has both replaced the President of the NDRC as well as dismissed a significant number of arbitrators…”.

9. FIFPRO also asked the FAS to rectify the situation: “…Evidently, a dispute resolution system in which all arbitrators of the NDRC, including the President, are selected and appointed by the Executive Committee of the Football Association of Serbia – without any influence of the SPFN – could not be considered as a system that guarantees fair proceedings and respects the principle of equal representation of players and

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clubs….We consider it absolutely critical that the above concerns are urgently rectified to ensure the players’ rights on fair and impartial proceedings…”.

10. On 4 January 2017, the FAS replied to FIFPRO stating, inter alia, that the amendments were made to “(…) improve certain rules of the arbitration proceedings, to speed up certain process actions, to raise the number of arbiters on the list and to secure and sustain absolute independence, expertise and impartiality of arbiters that settle the disputes arisen from sports (football) activities and performances. (…) General aim and task was to establish court of arbitration that would be independent and impartial, but also a credible and authoritative one at the same time (…) Therefore, general principles of arbitration are fully guaranteed by the provisions of these new Regulations governing activities of the Court of Arbitration of the FAS and of course, choice of arbiter from the arbiters’ list in order to settle a particular dispute will remain exclusive right of the interested parties …and FAS has in no way endangered that right of parties and which is a general principle of work and functioning of the Court of Arbitration”.

11. On 7 February 2017, and in reaction to the decisions passed on 9 December 2016, an “Emergency Meeting” was held at the FAS premises in the framework of the European Professional Football Social Dialogue. UEFA, ECA, European Leagues, FIFPRO, and the FAS and its national stakeholders (amongst which the SPFN) participated in the said meeting. The report of that meeting summarised the events giving rise to that event and further set the next steps and timelines to rectify the situation and comply with several other European Social Dialogue objectives. Regarding the Court Arbitrator, the parties of the meeting stated: “At the meeting, the FSS accepted to allocate to the players/clubs the 6 remaining spots in its list of arbitrators. In the future, discussions will be held in order to expand the list of arbitrators to 15 (5 members appointed by each of the parties). FIFPro could accept this for the time being, while pointing out that such structure was not completely in line with the relevant requirements…”.

12. Soon after, and under one of the agreements made during the meeting of 7 February 2017, the Union nominated three individuals to the new list of arbitrators of the FAS NDRC, one of them being Mr Jovan Micic.

13. On 15 August 2018, Mr Jovan Micic – acting as a Sole Arbitrator of the FAS NDRC – adjudicated on an employment dispute between the Serbian club, Radnicki Nis, and the Player. In his claim in front of the FAS NDRC, the Player requested the termination of the employment contract he had signed with Radnicki Nis.

14. Mr Jovan Micic ultimately accepted the Player’s request for the termination of the employment contract (the “Decision”). The Decision provided for detailed reasoning and stipulated that, under Art. 36 of the FAS NDRC Procedural Rules, the Decision was final and binding (enclosure 5). Indeed, the Procedural Rules of the FAS NDRC did not allow for any appeal or review procedure.

15. On 3 September 2018, the President of Court of Arbitration of Serbia ordered to review the case of the Player against Radnicki Nis as he found that the Decision in such case was rendered

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in violation of the imperative regulations of the Republic of Serbia as well as the regulations of the FA of Serbia.

16. In this regard, the Appellants underlined that the Player did not file any request for reconsideration and there was no information or documentation available that Radnicki Nis complained to the FAS about the Decision of Mr Micic.

17. On 4 September 2018, the Court of Arbitration of FA of Serbia, composed of arbitrators, Mr Miroslav Sever, as President, and Mr Vladimir Pantelic and Goran Delic as Members, passed its decision (the “Appeal Body Decision”): “It is hereby confirmed that by the Decision of the Court of Arbitration rendered in the case No. AS31/18 of 15.08.2018, there has been a violation of the imperative regulations of the Republic of Serbia and the said Decision is hereby DECLARED NULL AND VOID, and the main hearing in this legal matter I reopened. The next hearing is scheduled for 10.09.2018 starting at 2 pm which will be held before this Arbitral Tribunal”. Briefly, the Panel found that the Decision from Mr Micic, the former Arbitrator, was against the “imperative regulations of the Republic of Serbia” and “contrary to the regulations of the FAS” as well as “outside the principle of free judge’s opinion”. Further, the new Panel reasoned that the Decision passed by Mr Micic would be a “violation of the authority of the Court of Arbitration and the confidence of the Parties in the knowledge of the regulations by the Court”. The Appeal Body Decision of the new Panel further stipulated that “An appeal may not be lodged against this Decision”.

18. On 14 September 2018, a 3-member Panel issued a new decision – again constituted of Mr Sever, Mr Pantelic and Mr Delic – on the Player’s claim: the request for the employment contract termination by Mr Simunovic was this time rejected. Mr Simunovic had in the meantime already signed a contract with another club. In essence, he was ordered back in the employment with Radnicki Nis, his registration with the new club not being approved by the FAS Registration Committee. As the Player refused to return to Radnicki Nis, he became unemployed.

19. On 10 October 2018, FIFPRO wrote to the FAS expressing its firm disapproval of how it handled the Simunovic / Radnicki Nis dispute. Furthermore, FIFPRO requested the FAS to explain on which regulatory basis the newly appointed Panel had the competence to “review” and annul the Decision passed by Mr Micic.

20. On 23 October 2018, the FAS replied to FIFPRO, indicating that Mr Micic “ignored legislation”, violated “imperative legislation of the Republic of Serbia”, and “called into question the integrity of the Court of Arbitration”. The FAS also explained the dispute’s substance and indicated that the Court of Arbitration “appointed a jury of three arbitrators to review the gravity of infringement”.

21. On 2 November 2018, and allegedly under Art. 48 of the FAS Statutes in conjunction with Art. 4 para. 5 of the FAS NDRC Procedural Rules, the FAS Emergency Board decided to dismiss Mr Micic without further explanation.

22. On 13 November 2018, FIFPRO showed its disapproval of the procedure above and requested the FAS reinstate Mr Micic as an arbitrator of the FAS NDRC. FIFPRO

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complained: “what the Court of Arbitration cannot do is – without any legal or regulatory basis, and without any request from the parties to this extent – simply overrule a previous decision, (….) which shows unquestionably that the Court of Arbitration in Serbia is neither independent nor impartial and that the parties are not guaranteed a fair procedure. Please be informed that given the severity of the consequences of this situation, we will inform FIFA and UEFA and request them to take action”. The said letter remained to no avail.

23. On 11 December 2018, the FAS Emergency Board appointed a new arbitrator to replace Mr Micic, Mr Radan Ilic, under Art. 48 par. 2 of the FAS Statutes in conjunction with Art. 2 par. 2 of the FAS NDRC Procedural Rules.

24. On 29 March and 9 December 2019, FIFPRO and the Appellants lodged complaints before the FIFA Disciplinary Committee requesting the opening of disciplinary proceedings against the FAS and its officials given the above-described actions.

25. On 7 February 2020 – almost one year later – FIFA acknowledged receipt of the complaints and replied by solely addressing FIFPRO informing it, among other things: “Notwithstanding the above, even though you are entitled to file a complaint with regard to a conduct considered incompatible with the FDC and/or any other provisions of FIFA, it does not follow that you become a party to the proceedings as foreseen in Art. 27 of the FDC. In sum, and based on your complaint and your possible lack of standing in the potential case, FIFA is not mandated to start disciplinary proceedings…. With the above in mind, we would also like to draw your attention to the fact that we will not be in a position to provide you with information with regard to your inquiries or regarding the state of the proceedings before the FIFA Disciplinary Committee…”.

26. On 21 February 2020, FIFPRO and the Appellants objected to the content of the letter of FIFA dated 7 February 2020, and underlined that: “It is evident that only FIFA has jurisdiction to sanction its member associations when they engage in conduct that violate their own statutes and regulations, as well as those of FIFA. Indeed, as referenced in the Letter – FIFA bears a special responsibility to safeguard the integrity and reputation of football worldwide”. Consequently, the Appellants requested FIFA:

- to initiate disciplinary proceedings against the FAS based on the complaints, and

- to keep the Appellants and FIFPRO apprised of any developments concerning those proceedings (or any decision made by FIFA not to initiate proceedings at all).

Simultaneously, FIFPRO and the Appellants stated that if FIFA failed to inform them of any development regarding the complaints by March 20 2020, they would have no choice but to assume that FIFA had decided not to initiate disciplinary proceedings against the FAS.

27. FIFA did not reply to the letter dated 21 February 2020.

28. On 24 March 2020, FIFPRO and the Appellants provided FIFA with a final deadline until 27 March 2020, to comply with their previous requests, failing to consider such failure as a refusal to initiate proceedings/denial of justice, which could be appealed before CAS.

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29. On 26 March 2020, FIFA opened disciplinary proceedings against the FAS due to the investigation conducted into the complaint. The Appellants were not informed of the disciplinary proceedings’ opening as they were not considered parties.

30. On 4 May 2020, the FIFA Disciplinary Committee issued a decision notified to the FAS on 15 May 2020. The terms of the FIFA Disciplinary Committee’s Decision were the following: “The disciplinary proceedings initiated against the Football Association of Serbia are hereby declared closed”.

31. On 15 July 2020, the Appellants requested the grounds of the FIFA Disciplinary Committee’s Decision on 4 May 2020.

32. On 20 July 2020, FIFA replied to the Appellants by email stating that the Appellants were not a party to the disciplinary proceedings and concluding that

“The above being clarified, we would like to draw your attention to Art. 51 par. 3 of FIFA Disciplinary Code which states that “In principle, the FIFA judicial bodies issue the terms of decisions without grounds, and only these terms of the Decision are notified to the parties, who are informed that they have ten days from that notification to request, in writing, a motivated decision. Failure to make such a request results in the Decision becoming final and binding and the parties being deemed to have waived their right to lodge an appeal.

Taking into account that the Football Association of Serbia did not request the grounds of the Decision passed by the FIFA Disciplinary Committee on 4 May 2020, we hereby inform you that said Decision became final and binding. As the result of all the above, we regret having to inform you that your request for the grounds is rejected”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

33. On 7 April 2020, according to Article R47 and R48 of the Code of Sports-related Arbitration (the “CAS Code”), the Appellants filed a Statement of Appeal complaining that FIFA’s refusal to initiate disciplinary proceedings against FAS constituted a denial of justice. Consequently, they asked to order FIFA to initiate such disciplinary proceedings and notify any decision regardless of the outcome. Alternatively, should FIFA have already started such disciplinary proceedings, order FIFA to keep the Appellants informed about the evolving. The CAS Court Office registered these proceedings with no. CAS 2020/A/6921.

34. On 6 May 2020, the Appellants filed their Appeal Brief in relation to CAS 2020/A/6921 under

35. On 4 June 2020, the Parties were informed by the CAS Court Office that the Panel had been constituted as follows: Mr Francesco Macrì, Attorney-at-Law in Piacenza, Italy (President of the Panel), Mr Mark Hovell, Solicitor, Manchester, United Kingdom (nominated by the Appellants) and Patrick Lafranchi, Attorney-at-Law, Bern, Switzerland (nominated by the Respondent).

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36. On 10 July 2020, the Respondent filed its Answer in relation to CAS 2020/A/6921 in accordance with Article R55 of the CAS Code objecting, inter alia, the CAS jurisdiction over the claim from the Appellants.

37. On 15 July 2020, the Appellants informed the Panel that, on the same day, having found that FIFA Disciplinary Committee issued a decision in the proceedings against the Football Association of Serbia and the closing of such file, they have requested the grounds of such decision.

38. Pending the Answer to their request, the Appellants asked to suspend the given deadline to file a comment on the admissibility and jurisdiction of the CAS. As the Respondent objected to such request, the decision was referred to the Panel.

39. On 20 July 2020, FIFA replied to the Appellants stating that they were not a party to the disciplinary proceedings against FAS and concluding that “your request for the grounds of the decision (of FIFA Disciplinary Committee dated 4 May 2020) is rejected”.

40. On 27 July 2020, according to Article R47 and R48 of the CAS Code, the Appellants filed another Statement of Appeal requesting the CAS to rule that the Appellants have an interest worthy of protection and legitimate interest in the proceedings before FIFA Disciplinary Committee and, consequently, to order FIFA to provide the Appellants with the grounds of the Decision of FIFA Disciplinary Committee dated May 4 2020. These proceedings were registered as CAS 2020/A/7297.

41. As a preliminary request for relief, the Appellants asked for the consolidation with CAS 2020/A/6921 and the suspension of the deadline to file the Appeal Brief until the CAS had ruled on that issue.

42. By letter dated 30 July 2020, the CAS Court Office, inter alia, invited the Respondent to take a position about the Appellants’ request for consolidation with the matter CAS 2020/A/6921 and whether it agreed to submit the procedure to the same Panel of that case. Besides, the CAS Court Office informed the Appellants of the rejection of their request to suspend the time limit to file their Appeal Brief until a decision on the consolidation had been taken.

43. By letter of 10 August 2020, the Respondent objected to the requested consolidation and agreed to submit the matter to the same Panel of CAS 2020/A/6921.

44. On 24 August 2020, the Appellants filed their Appeal Brief in CAS 2020/A/7297 under Article R51 of the CAS Code.

45. On 27 August 2020, the Parties were informed by the CAS Court Office that the same Panel had been constituted in both CAS 2020/A/6921 and CAS 2020/A/7297.

46. On 5 October 2020, the Respondent filed its Answer in CAS 2020/A/7297 under Article R55 of the CAS Code.

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47. With separate communications on 8 and 15 October 2020, the Appellants and the Respondent agreed that the decision in the procedure CAS 2020/A/7297 should be based on the solely written submissions without a hearing. The Appellants also asked that the operative part of the Award be communicated before the reasons.

48. On November 11 2020, as requested by the Panel, FIFA submitted a copy of the disciplinary file regarding the decision 200437, passed on 4 May 2020.

49. On 27 November 2020, the CAS Court Office informed the parties of the decision of the Panel to consolidate the two procedures and invited them to submit a further written submission on the issue of CAS Jurisdiction in the matter CAS 2020/A/6921.

50. On 16 December 2020, the CAS Court Office informed the parties that the Panel did not consider it necessary to hold a hearing in the consolidated procedure. The Respondent was invited to submit to the Panel the reason why the case was closed on 4 May 2020, without any answer from the FAS regardless of granting it the asked time limit extension to file its response.

51. On 27 January 2021, the Panel decided to admit the requested submissions from both the parties such as the last exhibit submitted by the Appellants on 20 December 2020.

52. On the same date, the CAS Court Office issued the Order of Procedure, which was duly signed by all parties. The parties recognised CAS jurisdiction to deal with this matter and confirmed that their right to be heard had been respected in this procedure.

IV. THE PARTIES’ REQUEST FOR RELIEF AND SUBMISSIONS. — A. The Appellants’ position

53. In their Appeal Brief in CAS 2020/A/6921, the Appellants requested the CAS to rule as follows:

a) “To rule that CAS has jurisdiction to hear the present appeal.

b) To rule that the Appellants have an interest worthy of protection and/or a legitimate interest in the proceedings before the FIFA Disciplinary Committee as well as in this Appeal Procedure.

- Should FIFA have not yet initiated disciplinary proceedings against FAS:

c) To consider that FIFA’s refusal to initiate disciplinary proceedings against the FAS constitutes a refusal to initiate proceedings or a denial of justice.

d) To order FIFA to initiate disciplinary proceedings against the FAS.

e) To order FIFA to keep the Appellants informed of any developments regarding the disciplinary

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proceedings against the FAS.

f) To order FIFA to notify the Appellants of the Decision of the FIFA Disciplinary Committee, regardless of the outcome.

g) To order FIFA to notify the Appellants of the Decision of the FIFA administration should they proceed to the closure of the disciplinary proceedings against the FAS, without the FIFA Disciplinary Committee passing a decision.

- Alternatively, should FIFA have already initiated disciplinary proceedings against FAS:

h) To consider that FIFA’s refusal to inform the Appellants of the developments regarding the disciplinary proceedings against FAS constitutes a denial of justice.

i) To order FIFA to keep the Appellants informed of any developments regarding the disciplinary proceedings against the FAS.

j) To order FIFA to notify the Appellants of the Decision of the FIFA Disciplinary Committee, regardless of the outcome.

k) To order FIFA to notify the Appellants of the Decision of the FIFA administration should they proceed to the closure of the disciplinary proceedings against the FAS, without the FIFA Disciplinary Committee passing a decision.

In all scenarios:

l) To condemn the Respondent to pay the entire CAS administration costs and the arbitration fees.

m) To rule that the Respondent has to pay to the Appellants a contribution towards their legal costs and other expenses incurred with the present proceedings”.

54. In its Appeal Brief in CAS 2020/A/7297, the Appellants requested the CAS to rule as follows:

a. “to rule that CAS has jurisdiction to hear the present appeal.

b. to rule that the Appellants have an interest worthy of protection and/or a legitimate interest in the proceedings before the FIFA Disciplinary Committee as well as in this Appeal Procedure.

c. to order FIFA to provide the Appellants with the grounds of the Decision of the FIFA Disciplinary Committee dated 4 May 2020.

d. To condemn the Respondent to pay the entire CAS administration costs and the arbitration fees

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e. to rule that the Respondent has to pay to the Appellants a contribution towards their legal costs and other expenses incurred with the present proceedings”.

55. In essence, the Appellants state that the Appeal Body Decision of the FAS to revise the Decision of Mr Jovan Micic, as the designated FAS Sole Arbitrator, was manifestly unlawful and contrary to the regulatory framework provided by the FAS’ Statutes and FIFA’s regulations about the right of the parties (such as football players and clubs) to have an independent and impartial Court of Arbitration to settle their disputes in light of preventing any abuse and safeguard the integrity of matches and competition.

56. Amongst these provisions, the FAS, as a member of FIFA and UEFA, has undertaken to, inter alia,: (…): “Respect at all times the Statutes, Regulations, Directives and Decisions of FIFA and UEFA and the FIFA Code of Ethics (…) Refer in the last instance any dispute of national dimension arising from or related to the application of the Statutes or Regulations of the FA of Serbia to an independent and impartial court of arbitration to settle the dispute to the exclusion of any ordinary court, unless expressly prohibited so by the laws in force in Serbia; Respect the principles of loyalty, integrity and sportsmanship in conformity with the principles of fair-play; (…)Exercise due care in respect of others rights and responsibilities deriving from the Statutes, Regulations and decisions of FIFA and UEFA” (Art. 3 FAS Statutes).

57. FIFA Statutes also provide: “The objectives of FIFA are: (…) to draw up regulations and provisions governing the game of football and related matters and to ensure their enforcement; to control every type of association football by taking appropriate steps to prevent infringements of the Statutes, regulations or decisions of FIFA or of the Laws of the Game; (…) (g) to promote integrity, ethics and fair play with a view to preventing all methods or practices, such as corruption, doping or match manipulation, which might jeopardise the integrity of matches, competitions, players, officials and member associations or give rise to abuse of association football”.

58. Art. 14 of the FIFA Statutes provides, inter alia, that: “1. Member associations have the following obligations: (a) to comply fully with the Statutes, regulations, directives and decisions of FIFA bodies at any time as well as the decisions of the Court of Arbitration for Sport (CAS) passed on appeal on the basis of Art. 57 par. 1 of the FIFA Statutes;(…) d) to cause their own members to comply with the Statutes, regulations, directives and decisions of FIFA bodies; (…) (j) to comply fully with all other duties arising from these Statutes and other regulations. 2.Violation of the abovementioned obligations by any member association may lead to sanctions provided for in these Statutes.(…)”.

59. Art. 15 of the FIFA Statutes provides, inter alia, that: “Member associations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters:(…) to be independent and avoid any form of political interference; (…) to ensure that judicial bodies are independent (separation of powers);all relevant stakeholders must agree to respect the Laws of the Game, the principles of loyalty, integrity, sportsmanship and fair play as well as the Statutes, regulations and decisions of FIFA and of the respective confederation; (…) (i) to avoid conflicts of interests in decision-making; (j) legislative bodies must be constituted in accordance with the principles of representative democracy and taking into account the importance of gender equality in football”.

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60. The Appellants stated that the replacement of the designated arbitrator was contrary to the national rules of the Serbian Federation and all the FIFA rules in force concerning fair competition.

61. As such, Art. 59 of the FIFA Statutes provided that disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to the CAS: “The associations shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in the association or disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other association officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to CAS. (…)”.

62. In light of the above, the Appellants argued that neither the decision from FAS Emergency Board to remove Mr Micic nor the FAS NDRC’s composition itself are fair, independent and impartial.

63. Regarding the first censure, the decision of FAS Emergency Board to dismiss Mr Micic as an arbitrator of the FAS NDRC violates the principle of integrity and ethics and Art. 15 of the FIFA Statues, and it was incompatible with the principles of separation of powers and good governance, and therefore again a blatant violation of FIFA Statutes. In addition, the actions taken by FAS show that the NDRC in Serbia is not independent.

64. In this regard, the Appellants stressed that the actions were taken by the FAS and/or the FAS NDRC Chairman are not in line with the FAS regulations. Art. 30 and Art. 36 of the FAS NDRC Procedural Rules foresee that the awards of the FAS NDRC are final and binding and thus not subject to a “review” or appeal. Hence, the Decision passed by Mr Micic was final and binding and could, following the applicable regulations of the FAS, neither be “reviewed” nor be annulled.

65. Despite this provision, the Decision of Mr Micic was annulled on 4 September 2018, and a newly constituted 3-member Panels passed a new decision on 14 September 2018. Therefore, in the absence of any provision to that extent, it was not up to the discretion of the FAS and/or the Chairman of the FAS NDRC to order a review/annulment and to constitute a new Panel and pass a recent decision. These actions infringed fundamental law principles and the FAS NDRC procedure, such as FIFA Statutes and Regulations.

66. In the view of the Appellants, the FAS NDRC is also not an independent tribunal.

67. The Chairman of the FAS NDRC had been elected and appointed by the FAS Executive Committee (cf. Art. 2 FAS NDRC Procedural Rules), and not by consensus between player and club representatives, as contemplated under the FIFA RSTP. Indeed, Art. 22 lit. b) of the FIFA RSTP indicates that an independent national arbitration tribunal must respect the principle of equal representation of players and clubs. This element was absent in Serbia.

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68. Another blatant indication that no equal representation between players and club exists in the FAS NDRC is the fact that Mr Micic – an arbitrator nominated by the Union – has been replaced by the FAS with an arbitrator who is employed by the Serbian club, Radnicki Nis (Mr Radan Ilic), i.e. the club which was involved in the dispute on which Mr Micic adjudicated.

69. Lastly, it needed to be recalled by the Appellants that the FAS Emergency Board – which played a questionable role in this matter – is a sub-committee of the Executive Board and was therefore appointed and constituted similarly as the FAS Executive Board. In this respect, the “urgency” of the various decisions taken by the FAS Emergency Board has also not been clarified by the FAS.

70. The Appellants argued that, as a player and as the football players’ union, they are entitled to promote, through the disciplinary bodies of FIFA, the necessary actions to protect the due process in disputes between players and clubs and be informed of the outcome of such instances. In particular, they shall be kept informed of the commencement of disciplinary action and the results of the investigations and decisions of the relevant court or tribunal.

71. In this sense, the request to know the existence and the state of the disciplinary procedure appear legitimate and admissible given the direct interest of the appellants in receiving just and fair decisions and respecting the Serbian football system and the rules of FIFA: “In seeking such a confirmation from the FIFA Disciplinary Committee, the Appellants submit that they have: a legitimate interest and an interest worthy of protection in having disciplinary proceedings opened by FIFA; a legitimate interest and an interest worthy of protection in having their complaints assessed by the FIFA Disciplinary Committee; and a legitimate interest and an interest worthy of protection in the FIFA Disciplinary Committee imposing sanctions on the FAS” (Appeal Brief CAS 2020/A/6921, pag. 18).

72. In brief, and with particular reference to the player’s rights, the Appellants have standing to sue because: they are directly affected by the FIFA Disciplinary Committee’s decision; they have a substantial interest of a financial or sporting nature; they have been treated unjustly; it has been shown that there is a “practical use” in the appeal.

73. Regarding the Player, he is directly affected since he is seeking confirmation from FIFA that the actions of the FAS and its officials in the FAS NDRC procedure initiated by him are incompatible with the rules and regulations of the FAS and FIFA. He has been aggrieved by the actions of the FAS and its officials and seeks confirmation to this extent which does just to his belief that he is the victim of non-compliant – or even corrupt - behaviour and that he has been mistreated. He also has a tangible financial interest as a confirmation from the FIFA Disciplinary Committee that the actions of the FAS are incompatible would open up a claim for damages against the FAS for the latter’s unlawful acts. Lastly, FAS has violated his human rights by making it compulsory to submit his dispute to arbitration, while not providing independent and impartial arbitration. As the Player is invoking the violation of a human right, he has per se a legitimate interest and/or an interest worthy of protection.

74. Regarding the Union, SPFN, art. 10 of its Statutes, provides the following: “The task and the purpose of the Trade Union shall be protection and promotion of individual, specific and collective economic,

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social, educational, professional and cultural interests and rights of its members and the interests of all professional football players”.

75. In this context, reference must also be made to Art. 89 of the Swiss Civil Procedure Code which, inter alia, stipulates that associations and other organisations - which are authorised by their statutes to protect the interests of a specific group of individuals - may bring an action in their name for a violation of the personality of the members of such group. This is the case for the SPFN, which, based on its Statutes, protects the interests of professional football players in Serbia: the SPFN and its members, therefore, have a tangible financial interest in FIFA initiating disciplinary proceedings and taking action against the FAS when the latter’s arbitration system is unfair and not independent.

76. As such, the Appellants submitted that they have a legitimate interest and an interest worthy of protection in these appeal proceedings when FIFA refuses to inform the Appellants of any developments of the proceedings against the FAS and/or refuses to disclose the Appellants whether or not FIFA will even open proceedings against the FAS. Indeed, by refusing to keep the Appellants apprised of the state of proceedings or whether a procedure has been initiated, FIFA – in an absolute manner – prevents the Appellants from ever finding out whether their complaints are adequately dealt with or even dealt with at all.

77. Consequently, the letter from FIFA of 7 February 2020 and the absence of any reply to the Appellants’ letter of 21 February 2020, means that FIFA decided not to initiate a disciplinary proceeding against FAS, which is an appealable decision before CAS.

78. In the Appellants’ view, such interest to know the outcome of their complaints against FAS is also reflected in the right to know the grounds of FIFA Disciplinary Committee’s Decision to terminate the proceedings without imposing disciplinary sanctions against FAS or its governing bodies.

79. As the Appellants received FIFA’s Answer in CAS 2020/A/6921 on 10 July 2020, they learned that the FIFA Disciplinary Committee had opened disciplinary proceedings against FAS and a decision was passed on 4 May 2020. FIFA rejected the Appellants’ request for the grounds of the Decision given by the Disciplinary Committee; therefore, the Player and the Union filed a new appeal on 24 August 2020 in CAS 2020/A/7927.

80. In brief, the Appellants argue that “if FIFA cannot be forced or ordered to enforce its rules, regulations and statutes against its direct members, it would effectively mean that players (and clubs) are completely dependent on FIFA’s willingness to sanctions their Member Associations, for which FIFA may not always have an appetite. If there is a severe violation of the rules and regulations of FIFA by a Member Association – yet it does not directly affect FIFA like in the matter at hand – it cannot be left to FIFA’s sole discretion to decide to initiate disciplinary proceedings against a Member Association. There must be a mechanism of checks and balances for indirect members of FIFA and those collectively representing them” (submission reported in both Appeal Briefs).

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81. Accordingly, if the NDRC set up by the Member Association is not complying with the principles of FIFA, if the Player (as well as the Union) does not have the right to ask FIFA to sanction a Member Association, and, finally, if FIFA its does not enforce its regulations against its Member Associations, Players would be left unprotected and forced, at least, into an arbitration procedure (such as it happened before FAS NDRC) that is neither independent nor impartial.

82. In a case like the one at stake, where there is compulsory arbitration for the players in Serbia, and they do not have any alternative, it is fundamental that FIFA orders the FAS to provide the safeguard of fair and independent arbitration and sanctions the FAS if they do not.

83. In its Human Rights Policy, FIFA itself has emphasised that they have jurisdiction over its Member Associations and has already confirmed it has a special responsibility concerning players’ rights. Suppose FIFA is indeed serious about its human rights policy. In that case, it cannot simply ignore individuals when they address FIFA’s human rights violations and not grant them a place in the disciplinary process.

B. FIFA’s position

84. In its Answer filed in CAS 2020/A/6921, FIFA requested the CAS to rule as follows:

“a) declaring that it does not have jurisdiction to deal with the present matter and that the appeal is inadmissible;

Alternatively, should the Panel deem that it has jurisdiction and that the appeal is admissible, FIFA requests that it issue an award:

b) rejecting the reliefs sought by the Appellants:

In any event, FIFA asks that:

c) the Appellants are ordered to bear the full costs of these arbitration proceedings;

d) the Appellants are ordered to pay a contribution to FIFA’s legal and other costs incurred in the framework of these proceedings”.

85. In its Answer filed in CAS 2020/A/7297, FIFA requested the CAS to rule as follows:

“a) Rejecting the reliefs sought by the Appellants:

In any event, FIFA asks that:

b) the Appellants are ordered to bear the full costs of these arbitration proceedings;

c) the Appellants are ordered to pay a contribution to FIFA’s legal and other costs incurred in the framework of these proceedings”.

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86. Firstly, FIFA objected that the Appellants provided “a misleading portrayal of the facts and law applicable” to the cases at stake and that they don’t have standing to sue as well as they lack legal interest.

87. The Respondent argued that the Appellants were not even the persons filing the Complaint: FIFPRO filed it on both occasions; the fact that the Appellants co-signed the second complaint did not result in their consideration as complainants, as they objectively signed the document in their capacity as members of FIFPRO; they did not demonstrate a tangible interest in the outcome of eventual disciplinary proceedings against FAS and did not prove how the closure of the proceedings (with a sanction or not against FAS) could directly affect them.

88. Besides, in FIFA’s view, the Appellants did not (and continue not to have) a right for disciplinary proceedings to be opened against the FAS, and even less for a disciplinary sanction to be issued against the FAS.

89. Both the appeals filed by the Player and the Union should be rejected.

90. Notably, in the first case (CAS 2020/A/6921), the Appellants did not (and continue not to have) a right to open disciplinary proceedings against the FAS. Even less for a disciplinary sanction to be issued against the FAS and the appeal became moot due to the Disciplinary Committee had issued the final and binding Decision.

91. In CAS 2020/A/7927, the Appellant’s request for grounds of the FIFA Disciplinary Committee’s Decision was rightfully rejected on the basis of the applicable regulations as well as on the lack of standing in the framework of the disciplinary proceedings against the FAS and before CAS.

92. FIFA recalled the principle of standing to sue under the Swiss Civil Procedural law whereas: “the basic principle is that a claimant has standing to sue and the claim is admissible providing the person is invoking a substantive right of its own, i.e. a right deriving from contract, tort or another source” In other words, the standing to sue is recognised if a person appealing against a specific decision has an interest worthy of protection, i.e. sufficient interest in the matter being appealed. This principle is provided in Article 59(2) of the Swiss Civil Procedure Code (“SCPC”) and is known as “intérêt digne de protection”. Thus, having a legal interest is a condition for access to justice.

93. CAS jurisprudence recalls such principle stating that whether there is a legal interest is the socalled “aggrievement requirement” which has been defined as the “essential element to determine the legal interest and the standing of a party to appeal before the CAS a sports body’s decision, because the duty assigned to a panel by the CAS Code rules governing the appeal arbitration procedure is that of solving an actual dispute and not that of delivering an advisory opinion to a party that has not been aggrieved by the appealed decision”.

94. Notwithstanding that FIFA objected that the Appellants would never have become parties to or had any rights concerning the disciplinary proceedings against the FAS, the Respondent

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stressed that disciplinary proceedings were opened and a decision was passed. In any case, such a decision could not directly affect the Appellants as a third party. As a result, the Respondent concluded that FIFA simply cannot be used by every player or union that disagrees with a domestic dispute resolution mechanism to further their interests. This is neither the purpose of the FIFA Disciplinary Code or the practical solution to the Appellants’ alleged problems.

95. In addition to the abovementioned lack of standing to sue and appeal of the Appellants, by the wording of Article 70(2) FIFA DC 201747, the Respondent argued that it is clear that, even if the requirements set out in the mentioned provision that entitles the judicial bodies of FIFA to deal with a matter which in principle falls under the scope of an association, confederation or other sports organisation, would have been fulfilled, it would be at FIFA’s discretion whether to open disciplinary proceedings and, if applicable, impose sanctions. This discretionary element impedes anyone from claiming that justice was denied by FIFA in case it would choose not to investigate an alleged infraction.

96. In this regard, FIFA recalls the provision of Article 108(2) FIFA DC, which establishes that “[a]ny person or body may report conduct that he or it considers incompatible with the regulations of FIFA to the judicial bodies. Such complaints shall be made in writing”. The Respondent also stressed that CAS jurisprudence has acknowledged that said provision does not impose any obligation on FIFA to pursue or not a possible infringement.

97. FIFA complained that the Appeals filed by the Player and the Union constituted a sort of “manifesto” against the FIFA disciplinary system, which, on the contrary, is fully compliant with Swiss Law.

98. Besides, FIFA objected that the Appellants have not provided any evidence of having challenged the system that they believed to be unjust within their domestic framework. Of course, FIFA has an interest in its member associations respecting their own and FIFA’s statutes, and it was frivolous of the Appellants to imply the contrary. However, for the purposes that the Appellants wished to achieve, it would appear that the FIFA Disciplinary Committee is not the correct forum to solve their domestic problems.

99. Lastly, FIFA believes that it cannot be accused of a diminished commitment to protecting human rights where “persons” (understood as all those belonging to the world of football) are not considered parties in disciplinary proceedings such as the one at stake.

100. Such statements, as well as all the reasoning from the Appellants, should be rejected.

VII. CONSOLIDATION OF THE PROCEEDINGS.

135. After having consulted the parties, the Panel considers that the requirements in fact and law for the consolidation of the two proceedings are met.

136. According to Art. R52 para. 5 of the CAS Code, some conditions have to be met to consolidate the proceedings: the identity of the parties, the identity of applicable rules and the identity of the underlying legal relationship. In the case of a plurality of agreements, there should be consistency between them. What is more, the composition of the arbitral tribunal should be the same in both procedures. If the Panel has already been constituted, there should be the identity of arbitrators (MAVROMATI/REEB, The Code of Arbitration for Sport, pag. 251).

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137. The same legal basis is provided by Art. 4 (1) of the Swiss Rules of International Arbitration (in force since 2012): “Where a Notice of Arbitration is submitted between parties already involved in other arbitral proceedings pending under the Rules, the Court may decide, after consulting with the parties and any confirmed arbitrator in all proceedings, that the new case shall be consolidated with the pending arbitral proceedings. The Court may proceed in the same way where a Notice of Arbitration is submitted between parties that are not identical to the parties in the pending arbitral proceedings. When rendering its Decision, the Court shall take into account all relevant circumstances, including the links between the cases and the progress already made in the pending arbitral proceedings (…)”.

138. In this legal and factual framework and the consequent costs savings in case of consolidation, the Panel finds that all the above-mentioned conditions are met in the case at stake, such as the reasons underlying the requests for relief of the parties are essentially the same in both proceedings.

139. The Panel finds that where the Appellants, by arguing in both cases their legitimate interest and their interest as being worthy of protection, claim in the first proceedings to order FIFA to initiate disciplinary proceedings against the FAS (as well as to be informed of the outcome of this procedure), in the second case, given the decision of the FIFA Disciplinary Committee, they ask to know the grounds of such decision dated 4 May 2020.

140. In light of the above, let alone any other issue on CAS Jurisdiction and Appellants’ lack standing to sue, it appears that the content of CAS 2020/A/6921 has been absorbed in CAS 2020/A/7297 after the conclusion of the disciplinary proceedings as the issues seem to be the same. However, the request for relief in CAS 2020/A/6921 is clearly and time-wise previous

141. The Panel finds that the concrete and final aim of the Appellants is to seek the opening of disciplinary proceedings against FAS and sanctions to be imposed over such Association whenever it is found guilty of the violation of the applicable national and FIFA’s regulations. As such, it can be stated that the disputes in the arbitrations have arisen in connection with the same legal relationship between the same parties.

142. Due to these considerations, the Appellants requested the consolidation of the two proceedings due to the close subjective and objective connection. FIFA objected to this request due to the lack of jurisdiction of the CAS and, in any case, the intervened lack of interest in the dispute CAS 2020/A/6921 after the decision of the Disciplinary Committee. In any case, FIFA underlines the difference in objects of the respective proceedings.

143. In light of the above, it should be stated that the Panel has the discretion to grant the consolidation. The Panel may consolidate or may deny the request, even though the requirements for consolidation are met, considering the case at hand. In exercising this discretion, the Panel may consider any circumstances it deems relevant and consider factors such as whether the same or different arbitrators have been confirmed or appointed, the procedural stage of the proceedings, and whether the terms of reference have been established.

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144. Consequently, the Panel deems that all the conditions to consolidate the proceedings have been met.