Gostareshe Foulad Tabriz Cultural-Sports Institution v. Nassaji Mazandaran FC

I. THE PARTIES

1. Gostareshe Foulad Tabriz Cultural-Sports Institution (the “Appellant”) is a professional football club with registered offices in Tabriz, Iran, and is currently competing in the Iran Persian League.

2. Basghah Farhangi Varzeshi Nassaji Mazandaran Nassaji Mazandaran FC (Nassaji Mazandaran FC – the “Respondent”) is a professional football club with registered offices in Mazandaran, Iran, and in currently competing in the Azadegan League.

IV. JURIDICTION

29. It is generally accepted that the choice of the place of arbitration also determines the law to be applied to arbitration proceedings. The Swiss Private International Law Act (“PILA”) is the relevant arbitration law (DUTOIT B., Droit international privé Suisse, commentaire de la loi fédérale du 18 décembre 1987, Bâle 2005, N. 1 on article 176 PILA; TSCHANZ P-Y., in Commentaire romand, Loi sur le droit international privé - Convention de Lugano, 2011, n° 1, p. 1627, ad art. 186 LDIP). Article 176 par. 1 PILA provides that the provisions of Chapter 12 of PILA regarding international arbitration shall apply to any arbitration if the seat of the arbitral tribunal is in Switzerland and if, at the time the arbitration agreement was entered into, at least one of the parties had neither its domicile nor its usual residence in Switzerland.

30. The CAS is recognized as a true court of arbitration (ATF 119 II 271). It has its seat in Lausanne, Switzerland. Chapter 12 of the PILA shall therefore apply, the parties in the present dispute having neither their domicile nor their usual residence in Switzerland.

31. Pursuant to article 176 para. 2 PILA, the provisions of Chapter 12 do not apply where the parties have excluded its application in writing and agreed to the exclusive application of the procedural provisions of cantonal law regarding arbitration. There is no such agreement in this case. Therefore, articles 176 et seq. PILA are applicable.

32. According to Swiss legal scholars, this provision “is the embodiment of the widely recognized principle in international arbitration of ‘Kompetenz-Kompetenz’. This principle is also regarded as corollary to the principle of the autonomy of the arbitration agreement” (ABDULLA Z., The Arbitration Agreement, in: KAUFMANN-KOHLER/STUCKi (eds.), International Arbitration in Switzerland – A Handbook for Practitioners, The Hague 2004, p. 29). “Swiss law gives priority to the arbitral tribunal to decide on its own competence if its competence is contested before it (…). It is without doubt up to the arbitral tribunal to examine whether the submitted dispute is in its own jurisdiction or in the jurisdiction of the ordinary courts, to decide whether a person called before it is bound or not by the arbitration agreement” (MÜLLER C., International Arbitration – A Guide to the Complete Swiss Case Law, Zurich et al. 2004, pp. 115-116). “It is the arbitral tribunal itself, and not the state court, which decides on its jurisdiction in the first place (...). The arbitral tribunal thus has priority, the so-called own competence” (WENGER W., n. 2 ad Article 186, in: BERTI S. V., (ed.), International Arbitration in Switzerland – An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute, Basel et al. 2000). The provisions of Article 186 are applicable to CAS arbitration (RIGOZZI A, L’arbitrage international en matière de sport, thesis Geneva, Basel 2005, p. 524; CAS

33. According to article R27 par. 1 of the CAS Code, the CAS has jurisdiction whenever the parties agreed to refer a dispute to the CAS:

• by means of an arbitration clause inserted in a contract or regulations or of a later arbitration agreement (ordinary arbitration proceedings), or

• by means of an appeal against a decision rendered by a federation, association or sportsrelated body where the statutes or regulations of such bodies, or a specific agreement provides for an appeal to the CAS (appeal arbitration proceedings).

34. In the present case, according to the Appellant, the jurisdiction of the CAS arises out of Article 65 para. 1 of the Statutes of the Football Federation of the Islamic Republic of Iran (2011 edition) (the “FFIRI Statutes”) provides as follows: “In accordance with articles 59 and 60 of the FIFA Statutes (sic), any appeal against a final FIFA decision shall be referred to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. CAS shall not, however, deal with appeals on violations of the laws of the Game, suspensions up to four matches or up to three months”.

35. As stated in the previous paragraph, the Appellant based the jurisdiction of the CAS on article 65 para. 1 of the FFIRI Statutes.

36. The arbitral tribunal has the power to decide on its own jurisdiction, it has the “Kompetenz- Kompetenz” (Article R55 para. 4 of the Code). This exercise is especially important when the Respondent is in default, that is, if it has not taken standing on the jurisdiction of the tribunal or with respect to the merits of the case. In similar cases, the arbitral court is obliged to examine its jurisdiction ex officio (BERGER/KELLERHALS, Internationale und interne Schiedsgerichtsbarkeit in der Schweiz, second ed., N 629 ff.).

37. This is the case in the present dispute. A clarification regarding the ambit of this examination is warranted. The Sole Arbitrator does not have to search for reasons that cause lack of jurisdiction and he may accept his jurisdiction, as long as he is prima facie satisfied that the Appellant provides a valid arbitration clause and there is no indication that such clause should be declared null and void, inoperative or incapable of being performed (BERGER/KELLERHALS, Internationale und interne Schiedsgerichtsbarkeit in der Schweiz, second ed., N 629).

38. In the present case, the Sole Arbitrator notes that the Appellant argues that article 65 para. 1 of the FFIRI Statutes confers jurisdiction to the CAS. Such clause refers to articles 59 and 60 of the FIFA Statues which are now articles 66 and 67 according to the 2012 edition of such Statutes.

39. Article 67 para. 1 of the FIFA Statutes provides as follows: “Appeals against final decision passed by FIFA’s legal bodies and against decision passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question”.

40. After having referred to article 67 para. 1 of the FIFA Statutes, the Sole Arbitrator has to determine whether the arbitration clause contained in such legal provision – as far as a decision

of a member or league is concerned – is a directly applicable, i.e. a self-executing norm, or if it needs to be transcribed into an implementation rule of a FIFA-section in order to be applied.

41. As it can be seen subsequently, this question has been widely discussed in the jurisprudence of the CAS.

42. The landmark CAS decision in this topic area was the arbitral award issued in the procedure CAS 2005/A/952. In such award, the Panel concluded the following: “It is only with the implementation by the individual confederations of the […] FIFA statutes into their individual statutes, that the CAS can be held to have jurisdiction. The FIFA rules […] do not constitute per se a basis for arbitration. Instead, they constitute an instruction to introduce a regulation providing for CAS arbitration”.

43. In the procedure CAS 2009/A/1910, for instance, the Panel underlined that: “In accordance with the consistent jurisprudence of the CAS on this issue, in the Panel’s view article 63 para. 1 of the current FIFA Statutes does not by itself grant jurisdiction to the CAS with respect to decisions passed by confederations, members or leagues (see e.g., CAS 2008/A/1656, CAS 2005/A/952, CAS

44. The Sole Arbitrator emphasises that the above-mentioned CAS decisions were confirmed in

45. In a nutshell, with respect to the consistent jurisprudence of the CAS, the current version of article 67 of the FIFA Statutes is not directly applicable as far as decisions passed by a confederation, member or league is concerned. In order that such a decision can be appealed with the CAS, the Statutes or Regulations of the concerned member of FIFA need to contain a clause transcribing article 67 para. 1 of the FIFA Statutes into a “national” Regulations.

46. In light of the above, the Sole Arbitrator finds that article 67 para. 1 of the FIFA Statutes on its own does not confer jurisdiction to rule over the present matter. Rather, a jurisdiction’s clause contained in the FFIRI Statutes is necessary to confer jurisdiction to the CAS.

47. The Sole Arbitrator thus has to examine if the applicable FFIRI Statutes contains a clause conferring jurisdiction to the CAS.

48. As mentioned in paragraph 34, the Appellant based the jurisdiction of the CAS on article 65 para. 1 of the FFIRI Statutes which reads as follows: “In accordance with articles 59 and 60 of the FIFA Statutes (sic), any appeal against a final FIFA decision shall be referred to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. CAS shall not, however, deal with appeals on violations of the laws of the Game, suspensions up to four matches or up to three months” [emphasis added].

49. In the present case, article 65 para. 1 of the FFIRI Statutes does not grant jurisdiction to the CAS because there is presently no FIFA decision under appeal.

50. As a conclusion, the Sole Arbitrator finds that the Appellant failed to produce any FFIRI Regulations, any directly applicable FIFA Regulations or any bilateral arbitration agreement that would confer jurisdiction to the CAS. The proof of the existence of a valid and directly applicable arbitration clause has not been met. As a consequence, the CAS has no jurisdiction to rule over the present matter.

V. CONCLUSION

51. As the FFIRI Statutes does not contain any valid arbitration clause granting jurisdiction to the CAS, the Sole Arbitrator has consequently no jurisdiction to decide the present matter.