Wydad Athletic Club v. Fédération Internationale de Football Association (FIFA)

III. FACTUAL BACKGROUND

7. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions with regard to the scope of this award. Additional facts and allegations found in the Parties’ written submissions and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in its Award only to the submissions, pleadings and evidence he considers necessary to explain his reasoning.

8. Having agreed on a bifurcation of the proceedings, the Parties are divided at this stage of the proceedings over two questions

• Whether the CAS has jurisdiction to decide the present appeal lodged by Wydad against the Player and FIFA (the “Appeal”), and if so,

• Whether the Appeal is admissible.

9. In light of the above, only the facts relevant to these questions will be briefly presented below.

10. On 7 March 2019, the FIFA DRC issued the Appealed Decision in the matters between the Player, as Claimant / Counter-Respondent, Wydad, as Respondent / Counter-Claimant and El Guna, as intervening party. This decision reads as follows:

“1. The claim of [Chikatara] is partially accepted.

2. [Wydad] has to pay to [Chikatara] within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 44,000.

3. [Wydad] has to pay to [Chikatara] within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 121,167.

4. In the event that the aforementioned amounts are not paid by [Wydad] within the stated time limit, interest at the rate of 5% p.a. will fall due as of the expiry date and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by [Chikatara] is rejected.

6. [Chikatara] is directed to inform [Wydad] immediately and directly of the account number to which the remittances under points 2. and 3. are to be made and to notify the Dispute Resolution Chamber of every payment received.

7. The counterclaim of [Wydad] is rejected”.

11. The Appealed Decision was issued without reasons pursuant to Article 15 of the Rules Governing the Procedures of the Player’s Status Committee and the Dispute Resolution Chamber (the “DRC Rules”) and contained the following note:

“Note relating to the findings of the decision (art.15 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber):

A request for the grounds of the decision must be received, in writing, by the FIFA general secretariat within 10 days of receipt of notification of the findings of the decision. Failure to do so within the stated deadline will result in the decision becoming final and binding and the parties being deemed to have waived their rights to file an appeal”.

12. The FIFA DRC sent the Appealed Decision on 13 March 2019 via e-mail to the parties involved in the proceedings before the FIFA DRC using, inter alia, one of the Appellant’s email address registered in FIFA’s Transfer and Matching System (TMS), i.e. […]@[…] and to a further address for the Appellant registered in FIFA’s files ([…]@[…]). The e-mail from FIFA DRC was an invitation to download the Appealed Decision via FIFA’s e-filing system Cargo Link. The Appealed Decision was however not downloaded via the download links contained in the e-mails sent to the Appellant.

13. On 27 March 2019, the Player’s legal counsel sent to Wydad an invoice for the amount awarded to the Player in the Appealed Decision, and attached a copy of the said decision.

14. On 28 March 2019, the Appellant sent to FIFA from its e-mail address […]@[…] a letter stating that Wydad had not received the Appealed Decision and requesting FIFA to provide the grounds for the Appealed Decision.

15. On 2 April 2019, FIFA’s Players’ Status Department sent a letter to the Appellant (‘the Appealed Letter’) which read as follows:

“[…] we understand that you request the grounds of the decision reached by the Dispute Resolution Chamber on 7 March 2019 in the dispute between the above-captioned parties, the findings of which were directly communicated to Wydad Athletic Club on 13 March 2019, specifically to the email addresses, […]@[…] and […]@[…], as indicated by you within the proceedings as well as in your last correspondence (cf. document and transmission report enclosed).

In this regard, we kindly ask you to take due note that in accordance with art. 15 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber as well as the note relating to the findings of the decision concerned, the motivated decision will be communicated to the parties, if a request for the grounds of the decision is received by the FIFA general secretariat in writing within ten days as from receipt of the findings of the decision. Failure to do so will result in the decision becoming final and binding and the parties being deemed to have waived their rights to file an appeal.

In view of the above, we would like to emphasize that the findings of the relevant decision passed on 7 March 2019 have been duly notified to your club on 13 March 2019, yet the grounds of said decision have been requested on 28 March 2018 only, i.e. fifteen days after the notification of the findings of the decision.

As a result, and considering all of the above, particularly that the grounds of the decision have not been requested within the stipulated ten day time limit, we regret having to inform you that we are not in a position to provide you with the motivated decision”.

16. By letter dated 3 April 2019, the Appellant informed FIFA that e-mail containing the Appealed Decision sent by FIFA on 13 March 2019 had been classified as “SPAM” by its e-mail service provider and that this e-mail had accordingly been moved to the spam folder on the respective account.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

(“CAS”)

17. On 3 April 2019, Wydad filed with the CAS a Statement of Appeal against “the decision of the FIFA Dispute Resolution Chamber of 7 March and the FIFA Decision of 2 April 2019”. FIFA and the Player were named as respondents.

18. On 25 April 2019, the CAS Court Office initiated the procedure CAS 2019/A/6253 Wydad Athletic Club c. FIFA and Chisom Elvis Chikatara.

19. On 26 April 2019, counsel for the Player requested that English be the language of the proceedings.

20. In a letter dated 28 April 2019, counsel for El Gouna announced that they are acting for the Third Respondent and stated that El Gouna “must … be part of this appeal process”. El Gouna also requested that English be the language of the proceedings.

21. By letter to the CAS dated 2 May 2019, FIFA claimed that the Appeal “is manifestly inadmissible” because the Appellant failed to timely request the grounds for the Appealed Decision and further that the CAS lacks jurisdiction because Wydad failed to exhaust the available remedies by not requesting the grounds for the Appealed Decision. FIFA thus requested the termination of the procedure. Alternatively and in case its first request would not be accepted, it also requested the bifurcation of the proceedings and further that the Appeal against the Appealed Letter be declared inadmissible because it does not constitute a “decision”. FIFA also requested the use of the English language.

22. On 7 May 2019, CAS pointed out to El Gouna that they had not been named as respondent in the Appeal and that consequently El Gouna was currently not a party to the proceedings but that its request for intervention was currently dealt with.

23. On 22 May 2019, the CAS Court Office informed the Parties that, in accordance with Articles R47, R49 and R52 of the Code of Sports- related Arbitration (the “CAS Code”), the President of the CAS Appeals Arbitration Division (the “Division President”) had decided that it would be for the Panel, once constituted, to decide on the admissibility of the appeal.

24. On 24 May 2019, the Appellant requested that a Sole Arbitrator be appointed.

25. On 14 June 2019 and after consultation with the Respondents, CAS communicated the decision of the Division President that the case will be submitted to a sole arbitrator.

26. On 9 July 2019, the CAS Court Office took note of the Parties’ agreement for a bifurcation

of the present proceedings and informed the Parties that it would be for the Sole Arbitrator, once appointed to issue further procedural directions and to rule on El Gouna’s request for intervention.

27. On the same day and after consultation with the Parties, the Division President had issued an Order on Language providing for the use of English as the language of the proceedings.

28. On 2 August 2019, CAS informed the parties that the Panel was constituted as follows: Dr Dirk-Reiner Martens, Attorney-at-law in Munich, Germany.

29. By letter of 13 August 2019 and in view of the Parties’ agreement, the Sole Arbitrator issued procedural directions for the filing of the written submissions on the admissibility of the appeal and informed the Parties that, depending on the outcome of the award on admissibility, they would be invited to submit written submissions on the merits.

30. By letter dated 21 August 2019, the CAS Court Office informed the Parties, on behalf of the Sole Arbitrator, that, as agreed by the Parties, El Gouna was admitted as co-respondent in the present procedure.

31. On 4 September 2019 and within the extended time-limit, the Appellant submitted its appeal brief on the admissibility of the appeal.

32. On 27 September 2019, the Respondents submitted their answers on the admissibility of the appeal.

33. By letter of 2 October 2019, the CAS notified these answers. In view of the exception of lack of jurisdiction raised by the First Respondent and since the issues of jurisdiction and admissibility had, if needed, to be addressed in the same award, the Sole Arbitrator further invited the Second and the Third Respondents to express their observations on CAS jurisdiction and informed the Parties that the Appellant would then be invited to submit a reply on jurisdiction and admissibility.

34. On 8 October 2019, the Second Respondent submitted his observations (dated 3 October 2019) on jurisdiction.

35. On 9 October 2019, the Third Respondent submitted its observations on jurisdiction.

36. On 21 October 2019, the Appellant submitted its reply on admissibility and jurisdiction. It further requested the Sole Arbitrator to exclude the Player’s and El Gouna’s submissions dated 3 and 9 October 2019 respectively as well as some of the exhibits to the response of FIFA from the CAS file, that were drafted in French and filed without English translation.

37. On 31 October 2019 and as agreed by the Parties, the CAS Court Office informed the Parties that the Sole Arbitrator deemed himself sufficiently well informed to decide on jurisdiction and admissibility without the need to hold a hearing.

38. On 19 November 2019, CAS informed the Parties with great sadness, that the Sole Arbitrator

Dirk-Reiner Martens had passed away and that a new Sole Arbitrator shall be appointed in due course.

39. By letter dated 4 December 2019, CAS informed the Parties that Dr Jan Räker, Attorney-atlaw in Stuttgart, Germany, had been appointed as the new Sole Arbitrator in this procedure.

40. On 14 February 2020, the Sole Arbitrator confirmed to the Parties that a preliminary (or final depending on the outcome) award on jurisdiction and admissibility shall be rendered in this matter. He further informed the Parties that, should he consider that the Appealed Letter is an appealable decision before CAS, he also intends to address the merits of the Appealed Letter, as far as they are relevant for the jurisdiction or the admissibility of the appeal against the Appealed Decision. The Parties were invited to submit any objection in this respect within five days and the Respondents to comment the Appellant’s requests for exclusion of 21 October 2019. The Appellant was finally invited to indicate if he maintained such requests.

41. By communications of 17, 18 and 19 February 2020, respectively, the Appellant confirmed to maintain his requests made in his submission dated 21 October 2019, while all Respondents requested to reject such requests.

42. By letter dated 25 February 2020, CAS informed the Parties that the Sole Arbitrator had rejected the Appellant’s requests dated 21 October 2019 essentially since: For the exhibits submitted in French without an English translation, the Sole Arbitrator considered that in view of Article R29(3) of the CAS Code and in the absence of any request or order for their translation, they should not be excluded from the CAS file. For the Player’s and El Gouna’s submissions dated 3 and 9 October 2019, the Sole Arbitrator considered that their filing was in compliance with the instructions given to the parties and does not contradict Articles R55

43. On 3 March 2020, the CAS Court Office informed the Parties that they all tacitly agreed with the way of proceeding as described in the CAS letter of 14 February 2020.

44. On 4 and 6 March 2020 and further to a request from the Appellant, the CAS provided the Parties with a copy of the unpublished award issued in the case CAS 2018/A/5524 and, on behalf of the Sole Arbitrator, invited them to submit, their relating comments, if any.

45. The Second Respondent submitted its comments on 10 March 2020, while the other Parties submitted their comments on 19 March 2020.

V. THE PARTIES’ POSITIONS

46. The Sole Arbitrator has carefully reviewed all of the Parties’ submissions and will briefly summarise the same in this Section IV. To the extent relevant, they will be dealt with in more detail in the Section on the Sole Arbitrator’s findings.

A. The Appellant’s 4 September 2019’s submission on admissibility

47. Anticipating a challenge of the admissibility of its Appeal the Appellant argues:

• That it did not receive the Appealed Decision (and thus the notice on the need to request the grounds within 10 days of receipt) because FIFA’s 13 March 2019 e-mail arrived in its spam-box, and

• That it only became aware of the Appealed Decision on 27 March 2019 when the Player’s counsel requested payment of the amount awarded to the Player attaching a copy of the Appealed Decision, and

• That it timely requested the grounds for the Appealed Decision on 28 March 2019, and

• That as a result of the Appealed Letter with the refusal to provide the grounds for the Appealed Decision, the Appellant had no choice but to file on 3 April 2019 an appeal to the CAS both against such refusal in the Appealed Letter and against the Appealed Decision as such.

48. With respect to its Appeal against the Appealed Letter the Appellant submits:

• That the Appealed Letter has all the necessary characteristics of a “decision” within the meaning of Article 58 of the FIFA Statutes and Article R47 of the CAS Code, and

• That consequently the Appeal filed through its 3 April 2019 letter is admissible.

49. The Appellant further alleges the “lack of merits in refusing to communicate the grounds” of the Appealed Decision and contends that:

• “Knowledge of the decision … is the starting point for requesting the grounds”; and

• “FIFA failed to ensure a reliable and secure notification system for such procedures, …” and to ensure that “an acknowledgement of receipt has arrived”;

• One can conclude from several legal provisions and Swiss Federal Tribunals’ judgements (such as 1B_222/2013 of 19 July 2013 or 8C_239/2018 of 12 February 2019), that “the need to issue an acknowledgement of receipt in order to determine the time of compliance with a time limit therefore appears to be a principle commonly accepted in Swiss law and which should be taken into account in the absence of more precise provisions”;

• The CAS, in the award CAS 2014/A/3642, underlines that whilst the use of emails is not a problem per se, unless a “read receipt” is obtained, if the e-mail is met with silence, it leaves evidential difficulties in proving it was received and not automatically consigned to “spam”, as the Club contended it was in this case (cf. §140);

• It follows from the SFT and CAS case law that “it is for FIFA to demonstrate that the decision

ha[d] been received by the WAC, based on the circumstances of the case and the addressee’s statements within the time-limits of his good faith”;

• FIFA can “not prove the reading of its e-mail by the WAC on 13 March 2019” since “on the contrary, the exhibit produced by FIFA shows that the WAC never downloaded the decision”, while “the WAC provides a report of the receipt of the decision by a bailiff in [its] SPAM box”;

• FIFA irrefutable presumption that the WAC had received the Appealed Decision “violates the General Principles of Law, the case law of the CAS and the right of defence of the WAC”;

• “[U]nless it could be presumed without proof that it was acting in bad faith, it obvious that the WAC had no interest in not requesting the grounds of the [Appealed Decision] insofar as this request allowed it to protect its interests”

50. On a subsidiary basis, the Appellant further refers to the CAS awards CAS 2004/A/748, CAS 2005/A/899 and CAS 2008/A/1705, to consider that “a decision without grounds of the FIFA Dispute Resolution Chamber is subject to appeal to the CAS if it meets the conditions laid down in Article 47 of the CAS Rules of Procedures” and that these conditions are all respected here. The Appellant further refers to the case CAS 2008/A/1708 where “[t]he Panel concluded that, in the event that a party does not wish to request the grounds of the decision, since CAS may hear any appeal de novo pursuant to Article R57 of its Code of Procedure, the grounds of the decision should not be considered a precondition for an appeal”. The Appellant is aware that some subsequent case-law “made the request for communication of the grounds of the decision a mandatory precondition for any appeal”. It however considers that such case law is inapplicable here, since the Appellant was not able to request the grounds within the 10-day period established by Article 15 of the DRC Rules because of the lack of a valid notice. Under such circumstance ruling its appeal inadmissible would infringe the Appellant’s right to due process as recognized by the CAS (CAS 2013/A/3155) and Article 6 of the European Convention on Human Right.

51. The Appellant submits the following requests for relief:

“Principally:

• Declare admissible its appeal against FIFA’s decision of April 2019 not to communicate the grounds for its decision;

• Command FIFA to communicate the grounds for the decision of 7 March 2019;

• Refer the case back to FIFA to reform its previous ruling by communication of the grounds;

• Impose jointly and severally on the Respondents the costs of the proceedings;

• The reimbursement of the expenses and procedure fees of the Appellant’s lawyers jointly and severally by all the Respondents for a total amount of € 15,000.

Subsidiary:

• Declare admissible the appeal against FIFA’s decision of 7 March 2019;

• Set a timetable to enable the WAC to reach a conclusion on the merits of the dispute;

• Impose jointly and severally on the Respondents the costs of the proceedings on the Respondents the costs of the proceedings; and

• The reimbursement of the expenses and procedure fees of the Appellant’s lawyers jointly and severally by all the Respondents for a total amount of € 15,000”.

B. The Player’s 25 September 2019 submission on admissibility

52. The Player puts into question the Appellant’s contention that it did not receive the e-mail from FIFA of 13 March 2019 with the invitation to request the grounds for the Appealed Decision within ten days. According to the Player, the extensive and unobstructed e-mail exchange between the Parties, consistently using the e-mail addresses for Wydad on file at FIFAs’ TMS system, demonstrates that the Appellant also received FIFA’s 13 March 2019 email. In any event, even if this e-mail did in fact end up in the Appellant’s spam-box, it was negligent on its part to not regularly check the spam-box, particularly at a time when the Appellant knew that the Appealed Decision was imminent. The Player also rejects the Appellant’s argument that FIFA needs to verify that e-mails have been read “as this would lead to chaos because a party can receive an e-mail and be too busy to open it or too scared to open it knowing the outcome”.

53. According to the Player, “it is general and accepted practice that receipt of the e-mail by a party in their email box is deemed sufficient and does not have to depend on any further action by the recipient to be deemed as duly notified”. The Player further submits that in view of FIFA Procedural Rules and CAS case-law (CAS 2015/A/3903, CAS 2011/A/2563), the Appealed Decision became final and binding 10-day after it had been sent.

54. The Player submits the following prayers for relief:

“We hereby humbly urge this honourable court :

1. To reject the Appellant’s request to set aside the decision hereby appealed against and hold that the DC Decision is final and binding: since its grounds were not requested to be submitted, the Appellant is deemed to have waived its right to file an appeal against the DC Decision.

2. To confirm the decision hereby appealed against in its entirety.

3. To order the Appellant to bear all costs incurred with the present procedure and to cover all legal expenses of the 2nd Respondent related to the present procedure”.

C. FIFA’s 27 September 2019 submission on admissibility

55. FIFA submits that CAS lacks jurisdiction to decide on the Appeal because by not timely requesting the grounds for the Appealed Decision the Appellant failed to exhaust the legal remedies available to it.

56. As to the Appellant’s appeal against the Appealed Letter, FIFA argues that this letter is not a “decision” within the meaning of Article 58 of the FIFA Statutes/ Article R47 CAS Code as it lacks the necessary form, content and “animus decidendi” and does not contain a ruling.

57. FIFA expresses surprise that out of a series of e-mails exchanged between the parties over the course of several months the 13 March 2013 e-mail with the Appealed Decision is supposed to have been the only one which allegedly arrived in the spam-boxes of the two e-mail addresses to and from which the previous messages were received and sent without a problem.

58. FIFA points out that Articles 9bis para. 1 and 19 para. 2 expressly provide for notification by e-mail and that the Appellant does not contest that the e-mail in question was received in its e-mail accounts, albeit allegedly in the spam-boxes. Thus, the e-mail entered the Appellant’s sphere of control as a result of which the alleged failure to open it falls within the Appellant’s responsibility, particularly since it had – in the words of the Swiss Federal Tribunal – and “inquiry obligation” (“Abfrage-Obliegenheit” in German) given the obvious likelihood that a DRC decision was forthcoming shortly.

59. Finally, FIFA emphasises that following the addition a few years ago of the words “… and the parties being deemed to have waived their rights to file an appeal” in Article 15 of the DRC Rules, it can no longer be put into question that an appeal against a DRC decision within the 21–day time limit pursuant to R49 CAS Code is inadmissible if the grounds for such decision have not been previously and timely requested.

60. FIFA requests CAS to issue a preliminary award and submits the followings prayers for relief:

(b) Declaring the lack of jurisdiction of CAS in the present case;

(c) Alternatively, declaring the present appeal inadmissible;

(d) In any event, ordering the Appellant to bear all costs incurred with the present procedure and to cover all the expenses of FIFA related to the present procedure.

D. The Player’s 8 October 2019 submission on jurisdiction

61. The Player briefly supports FIFA’s 27 September 2019 position that CAS lacks jurisdiction because by not timely requesting the grounds for the Appealed Decision Wydad failed to exhaust the legal remedies.

62. The Player does not submit any further prayers for relief.

E. The Third Respondent El Gouna’s 27 September and 9 October 2019 submissions on

jurisdiction/ admissibility

63. Quoting the full set of applicable regulations, El Gouna submits that the Appellant’s request to be provided with the grounds for the Appealed Decision is clearly out of time and thus inadmissible.

64. Also, according to El Gouna, CAS lacks jurisdiction because by not requesting the grounds for the Appealed Decision Wydad failed to exhaust its legal remedies.

65. With respect to the appeal against the Appealed Letter, El Gouna states that this is not a “decision” within the meaning of the regulations because it lacks a “ruling” affecting Wydad’s legal situation.

66. Finally, according to El Gouna “there is a common sense obligation on a party to check spam” and that there was “in fact no adequate proof that the email first went to spam anyway”.

67. El Gouna submits the following prayers for relief:

“I. Declare that CAS does not have jurisdiction in relation to the Appealed Decision or the Second Appeal.

II. In the alternative to declare Wydad’s appeal to be out of time.

III. Wydad shall bear all arbitration costs.

IV. Wydad shall be ordered to pay El Gouna a contribution towards the legal and other costs incurred by the latter in relation to these proceedings, in an amount to be determined at the discretion of the Panel”.

F. The Appellant’s 21 October 2019 and 19 March 2020 submission

68. In these further submissions the Appellant contends that it has no control over its computer system’s qualification of an e-mail as spam and emphasises that, according to the CAS and SFT case-law, the burden of proof for proper notification lies with FIFA. On 19 March 2020, he further referred to the award issued in the case CAS 2017/A/5524 to sustain that a decision to refuse to communicate the ground of another decision is a decision and that the receipt of a FIFA decision shall be good and effective, since, in that case, further to an incomplete notification by fax, FIFA resent its decision by courier.