Royal AM Football Club v. Chippa United FC, National Soccer League (NSL), Polokwane City FC, Richards Bay United, Sekhukhune United FC, South African Football Association (SAFA)

I. BACKGROUND

1. Royal AM Football Club (“Royal” or the “Appellant”) is a football club based in Durban, South Africa. Royal is affiliated to the South African Football Association and to the National Soccer League. In the 2020/2021 season, Royal competed in the South African National First Division

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(known also as the GladAfrica Championship: the “Championship”), the second tier of professional football in South Africa.

2. The South African Football Association (“SAFA” or the “First Respondent”) is the national football federation in the Republic of South Africa, and is a member of the Fédération Internationale de Football Association (“FIFA”), the world governing body of football.

3. The National Soccer League (“NSL” or the “Second Respondent”), currently known as the Premier Soccer League, following an agreement with the National Professional Soccer League, is a sports association responsible for administering the two professional football divisions in South Africa, and is a special member of SAFA.

4. Sekhukhune United FC (“Sekhukhune” or the “Third Respondent”), Polokwane City FC (“Polokwane” or the “Fourth Respondent”), Richards Bay United (“Richards Bay” or the “Fifth Respondent”) and Chippa United (“Chippa” or the “Sixth Respondent”) are football clubs affiliated to SAFA and to the NSL, which in the 2020/2021 season competed in the Championship.

5. The First Respondent, the Second Respondent, the Third Respondent, the Fourth Respondent, the Fifth Respondent and the Sixth Respondent are collectively the “Respondents”. The Appellant and the Respondents are the “Parties”.

II. FACTUAL SUMMARY

6. Below is a summary of the main relevant facts, as submitted by the Parties in their written pleadings and/or adduced at the hearing. Additional facts may be set out, where relevant, in connection with the legal discussion that follows. Although the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in this Award only to the submissions and evidence it considers necessary to explain its reasoning.

7. On 2 January 2021, a match of the Championship was played in the city of Polokwane between Polokwane and Sekhukhune (the “Match”). The Match was won on the pitch by Polokwane by 1:0.

8. On 4 January 2021, Sekhukhune lodged a protest against the Match result under Article 51 of the NSL Handbook, noting that Polokwane had contravened Article 35.2 thereof (“Clubs participating in the National First Division must include in the team sheet for every match a minimum of 5 (five) players who are both under 23 and eligible to represent South Africa. A minimum of 2 (two) under 23 players must be on the field of play at all times during a match”), because it had failed to include in the team sheet a minimum of 5 players under 23 eligible to represent South Africa.

9. On 7 May 2021, the NSL Disciplinary Committee (the “DC”) issued a ruling (the “DC Ruling”) upholding the protest and sanctioning Polokwane with a deduction of 3 points and a suspended fine.

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10. Sekhukhune filed an appeal against the DC Ruling. The decision on such appeal was referred to arbitration pursuant to Article 64.1 of the NSL Handbook.

11. On 19 May 2021, Adv Hilton Epstein SC issued an award (the “Epstein Award”), setting aside the DC Ruling and declaring that Polokwane had forfeited the Match to Sekhukhune “with a score line of 3-0” and confirming the suspended fine.

12. On 21 May 2021, the NSL issued an “Urgent Note” with respect to the Epstein Award (the “21 May Note”). The NSL, disputing the findings of Epstein Award, indicated in the 21 May Note that it was seeking legal advice and was considering its options in respect of the Epstein Award. As a result, at that stage, the Epstein Award was not implemented, and Sekhukhune was not granted the 3 points based on the result of the Match declared by the Epstein Award.

13. On 23 May 2021, the final matches of the Championship were played. As a consequence of their results, Royal ranked first (with 51 points), with Sekhukhune ranking second (with 50 points). The club ranking first was entitled to the automatic promotion to the NSL Premiership (the top league in the South African football) for the 2021/2022 season.

14. On 23 May 2021, the NSL issued a press statement indicating that it had been threatened and served with court proceedings, and that the Championship trophy handover would be postponed.

15. Litigation started before the courts of South Africa. Such litigation involved a number of court proceedings. Notably, in that context, on 12 June 2021, the High Court of South Africa, Gauteng Division, in Johannesburg (the “High Court”) issued an order, dismissing, inter alia, an application brought by Polokwane to set aside the Epstein Award (the “HC Order”). Leave to pursue an appeal against such HC Order, which was requested by Royal was denied on 17 June 2021.

16. On 12 June 2021, as a result of the HC Order, the NSL implemented the Epstein Award: Sekhukhune was crowned as the winner of the Championship with 53 points, earning the automatic promotion to the NSL Premiership; Royal was admitted to the play-offs, which offered the opportunity of a promotion to the NSL Premiership. Eventually, however, Royal decided not to play any of the play-off matches.

17. On 30 July 2021, Royal lodged with the Court of Arbitration for Sport (“CAS”) an appeal against the Epstein Award.

18. On 4 August 2021, the CAS Court Office, writing on behalf of the President of the CAS Appeals Arbitration Division, reminded Royal of the time-limits to file an appeal at CAS and informed it that “even if CAS would have jurisdiction (the present letter being without any prejudice on this issue), the appeal filed by email on 30 July 2021 would be manifestly late. … Therefore, …. the CAS shall not initiate an arbitral procedure in this matter”.

19. On 10 August 2021, Royall requested SAFA, pursuant to Article 71.4 of the SAFA Statutes and

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to Article 143 of the SAFA Disciplinary Code, to refer to arbitration the “disputes it has with the NSL” and seek “a review of the administrative decision taken by the NSL on the 12th June 2021”, as well as of the Epstein Award.

20. On 19 August 2021, SAFA sent to Royal, with copy to Sekhukhune, Polokwane, Richards Bay United and Chippa, a letter (the “19 August Letter”) denying the referral to arbitration as follows: “I refer to your letter of 10 August 2021 to which is attached Royal AM FC’s referral of the dispute to arbitration in terms of Article 71.4 of the SAFA Statutes and Article 143 of the SAFA Disciplinary Code. Proof of payment of the lodgement of fees is also attached. I have considered your statement of claim in the dispute on behalf of Royal AM, and I hereby decline to refer the said dispute to arbitration in terms of Article 71.4 of the SAFA Statutes and the review sought in terms of Article 143 of the SAFA Disciplinary Code. Without going into any further detail, it is manifestly the case that the conduct Royal AM FC complains of, namely the alleged administrative decision taken by the NSL on 12 June 2021, and the review sought of the award delivered by Hilton Epstein SC on 21 May 2021, arose out of the matter between Sekhukhune United FC and Polokwane City FC to which Royal AM was not a party. In any event, the arbitration award delivered by Epstein SC is final and binding in terms of both the NSL Handbook and the SAFA Statutes, and to date has not been set aside in a court of law. In fact, the validity of the award has been upheld in court notwithstanding challenges to the award by Royal AM FC, and leave to appeal against it, has been refused. Royal AM FC has sought to apply for leave to appeal from the Supreme Court of Appeal, and has also referred the matter to the Constitutional Court. Both latter applications, are pending. In the circumstances, the referral of the Royal AM FC dispute to arbitration in terms of Article 71.4, the review sought of the alleged administrative decision taken by the NSL on 12 June 2021, and the review sought in terms of Article 143 of the SAFA Disciplinary Code, is refused”.

21. On 21 August 2021, the SAFA Disciplinary Committee found Royal guilty of misconduct for failing to play the play-off matches and sanctioned it. Such decision was not challenged and therefore became final.

III. PROCEDURE BEFORE THE COURT OF ARBITRATION FOR SPORT

22. On 7 September 2021, Royal transmitted by email to the CAS a statement of appeal pursuant to the Code of Sports-related Arbitration (the “Code”) to challenge the 19 August Letter.

23. On 9 September 2021, Royal informed the CAS Court Office that the statement of appeal had to be considered as its appeal brief pursuant to Article R51 of the Code.

24. On 22 September 2021, the CAS Court Office informed the Appellant that the hard copies of the statement of appeal had not reached CAS yet, and drew the Appellant’s attention to the requirements of Article R48 of the Code, including the need to specify the name and full address

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of the Respondents and the nomination of an arbitrator.

25. On 23 September 2021, the Appellant provided the full addresses of the Respondents.

26. On 24 September 2021, the CAS Court Office acknowledged receipt of the provided addresses and reminded the Appellant that it was still invited to nominate an arbitrator.

27. On 24 September 2021, the Appellant appointed Mr David Phillips QC as an arbitrator.

28. On 20 October 2021, the CAS Court Office confirmed receipt on 15 October 2021 of the hard copies of the statement of appeal sent on 9 September 2021, addressed some issues regarding the exhibits produced by the Appellant (neither listed nor numerated), forwarded to the Respondents copy of the Appellant’s submissions and of the correspondence exchanged, and invited them to jointly nominate an arbitrator.

29. On 25 October 2021, the Appellant submitted a list, and a copy, of the produced exhibits.

30. On 4 November 2021, Richards Bay informed the CAS Court Office that it would not participate in the CAS arbitration proceedings.

31. On 4 November 2021, the NSL informed the CAS Court Office that the First Respondent, the Second Respondent and the Third Respondent had decided to appoint Judge Rauf Soulio as an arbitrator in this matter, and that no response had been received from the remaining Respondents in relation to such appointment.

32. On 5 November 2021, the CAS Court Office in a letter to the Parties noted inter alia the appointment of Judge Rauf Soulio as an arbitrator, and informed the Parties that, in the absence of observations from the remaining Respondents, the CAS Court Office would consider Judge Rauf Soulio as jointly appointed by all Respondents.

33. On 30 November 2021, the CAS Court Office, noting that the Appellant had paid its share of the advance of costs in the present matter, informed the First, Second and Third Respondents that the time-limits for the filing of their answers, which were previously suspended further to their requests, were resumed, and therefore invited them to submit their answers. At the same, the CAS Court Office informed the Parties, on behalf of the President of the CAS Appeals Arbitration Division, that the Panel had been constituted as follows: Prof. Luigi Fumagalli, President; Mr David Phillips QC and Judge Rauf Soulio, Arbitrators.

34. On 6 December 2021, the CAS Court Office, writing on behalf of the Panel, noted the following with respect to the “CAS file”: “In spite of the list of its exhibits submitted by the Appellant on 25 October 2021, the file is still not easily readable. The Panel has indeed noted the following: - Doc. 5 of the Appellant’s list of 25 October 2021 (a “PLS media statement” dated 21 August 2021) cannot be found in the various exhibits submitted by the Appellant as RAD, AR, RAI, EPI etc.;

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• Some of the documents numbered in the Appellant’s list of 25 October 2021 appear filed in more than one copy as part of the groups of documents referred to as RAD, AR, RAI, EPI etc., and are mixed with others;

• It is not possible to link the documents numbered in the Appellant’s list of 25 October 2021 to those referred to as RAD, AR, RAI, EPI etc. in the body of the written submission. In light of the above, and in application of Article R44.3 (applicable by reference of Article R57 of the CAS Code) of the CAS Code, the Appellant is invited to resubmit all the documents already filed, numbering them in sequence starting from 1, together with their list and the indication of the paragraphs of the appeal at which they were referred to”.

35. On 6 December 2021, the Appellant provided some clarifications regarding the documents filed.

36. On 14 December 2021, the CAS Court Office, while confirming receipt of the Appellant’s exhibits, indicated that problems still existed in their respect, invited the Appellant to proceed accordingly and suspended the time-limit for the filing of the First, Second and Third Respondents’ answers.

37. On 15 December 2021, the CAS Court Office acknowledged receipt of some missing documents and invited the First, Second and Third Respondents to submit their answers.

38. On 13 January 2022, the CAS Court Office confirmed receipt of the answers filed by the Second Respondent and by the Third Respondent within the relevant time-limits, and noted that the remaining Respondents had failed to submit their answers.

39. On 18 January 2022, the CAS Court Office notified to the Parties the answers filed by the Second Respondent and by the Third Respondent. At the same time, the Parties were advised that the Panel had taken due note of the numerous objections of inadmissibility, lack of jurisdiction and res iudicata raised by the Second Respondent and/or Third Respondent, as well as of the Second Respondent’s comment relating to its scope of review. Therefore, in application of Articles R55 and R56 of the Code, the Appellant was invited to lodge an additional written submission strictly limited to these preliminary issues. Finally, the Parties were informed that, upon receipt of these observations, the Panel would consult the Parties on the appropriateness of the holding of a hearing and of the issuance of a preliminary decision dedicated to these issues.

40. On 27 January 2022, the Appellant filed its “Short Submission on Admissibility, Jurisdiction, Res Judicata and Scope of Review”.

41. On 28 January 2022, the CAS Court Office invited the Parties to state their positions on (i) the issuance of a preliminary decision (or final decision depending on its outcome) dedicated to the preliminary issues, and (ii) the holding of a hearing for the discussion of the same issues.

42. On 1 February 2022, the Appellant expressed its opinion that the matter be heard on all aspects,

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and that a final decision on the preliminary issues be made in the final award on merits.

43. On 4 February 2022, the Second Respondent indicated to be in favour of the issuance of an award on the preliminary issues and of the holding of a hearing for their discussion.

44. On 11 February 2022, the Parties were advised by the CAS Court Office that the Panel had decided to hold a hearing on the preliminary issues and to decide after this hearing whether to render an award on the preliminary issues or to join their discussion with the merits.

45. On 18 February 2022, the CAS Court Office informed the Parties that the hearing would be held by video-link on 3 March 2022.

46. On 2 March 2022, the Second Respondent submitted a document containing a time-line of the main events to which it would refer at the hearing.

47. On the same day, the Third Respondent submitted a CAS award (CAS 2013/A/3276) upon which it intended to rely on at the hearing.

48. A hearing was held on 3 March 2022 by video link. The Panel was assisted by Ms Carolin Fischer, Counsel to the CAS. The Panel was joined at the hearing:

i. for the Appellant: by Mr Leruma Thobejane, Attorney; ii. for the Second Respondent: by Adv Franck Snyckers SC, Adv Tidimalo Ngakane, Counsel, Mr Dario Milo, Attorney, Ms Lavanya Pillay, Attorney, Mr Divashen Naidoo, Attorney, Mr Hoosein Mayet, Candidate Attorney, Mr Michael Murphy, PSL representative, Ms Dolores Madlala, PSL representative, Mr Nande Becker, PSL representative, and Mr Daniel Sive, Pupil Advocate; iii. for the Third Respondent: Adv Norman Arendse SC, Adv David Borgström SC, Ms Karabo Tshabuse, Attorney, Mr Simon Malatji, President, Mr Jonas Malatji, CEO, Mr Luxolo Matikinca, Manager; iv. for the remaining Respondents: nobody.

49. The hearing was also attended by Adv. Tebogo Matlanthe, CEO of SAFA, as an observer invited by the Third Respondent.

50. At the hearing, preliminarily, the Parties confirmed that they had no objection as to the appointment of the Panel and the holding of the hearing by video connection. The Parties, then, made submissions in support of their respective cases.

51. At the conclusion of the hearing the Parties confirmed that they had no objections in respect of their right to be heard and to be treated equally in the arbitration proceedings.

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52. Further to the hearing of 3 March 2022 and in response to a question from the Panel regarding the state of the current season, the Second Respondent submitted some information on the number of matches played or to be played.

53. On 4 March 2022, the Appellant submitted the written version of the submissions it presented at the hearing. Referring to the submissions made by the Second and Third Respondents after the closure of the exchange of written submissions, the Appellant deemed that they were filed in violation of Article R56 of the Code and that, should they nonetheless be admitted, fairness would require that the written submissions of its oral pleadings be also admitted in the CAS file.

54. On the same day and on behalf of the Panel, the Parties were invited to refrain from submitting unsolicited documents and were informed that any unsolicited documents or submissions lodged after the hearing would not be considered by the Panel.

55. The Panel notes here that the documents submitted by the Second and Third Respondents on 2 March 2022 are admitted in the file insofar as they are a publicly available CAS award (which is not a new exhibit under Article R56 of the Code, parties being free to refer at the hearing to publicly available decisions drafted in the language of the procedure in support of their argumentation) and a time-line established on the basis of the produced written submissions. The Panel also notes that insofar as the Appellant’s written submissions of 4 March 2022 is the written version of its pleading it is materially admitted in the file, the Parties’ oral submissions being obviously taken into account.

56. On 5 April 2022, the Parties were informed of the Panel’s decision to issue a separate award on the preliminary issues.

IV. THE POSITION OF THE PARTIES

57. The following outline describes only the Parties’ positions with respect to the CAS jurisdiction and the admissibility of the appeal, and is illustrative only. As a result, it does not necessarily comprise every contention put forward by the Parties. The Panel, indeed, has carefully considered all the submissions made by the Parties, even if there is no specific reference to those submissions in the following summary.

A. The Position of the Appellant

58. In its combined statement of appeal and appeal brief, the Appellant requested the following relief: “67.1. The decision taken by SAFA on the 19th August 2021, be declared incompetent, reviewed and set aside.

67.2. Declaring the decision by the NSL to refuse to implement the Epstein arbitration award on the 21st May 2021, was unlawful and was in violation of the NSL handbook, SAFA Disciplinary Code and

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the FIFA statutes.

67.3. Reviewing and setting aside the Epstein award in so far as advocate Epstein SC for the first time at arbitration introduced a new issue of the alleged fielding of an ineligible player by Polokwane City FC in order to attract and impose a sanction under article 22 of the FIFA Disciplinary Code as being grossly irrational, grossly irregular, not supported by the facts for the protest or the evidence.

67.4. An order confirming the ruling as the sanction imposed by the NSL disciplinary committee.

67.5. An order confirming that the NSL Handbook is not silent on the sanction in respect of violation of rule 3.5.2 and any other violation of the NSL Handbook as provided for in terms of rule 51.4 of the NSL Handbook.

67.6. An order reviewing and setting aside the Epstein award in its entirety”.

59. According to the Appellant, CAS has jurisdiction to hear the appeal it filed. In more detail, jurisdiction is based, for the purposes of Article R47 of the Code, on Articles 56 and 57 of the FIFA Statutes, read in conjunction with Articles 127(2) and 129 of the SAFA Disciplinary Code.

60. In that respect, the Appellant indicates that SAFA adopted the provisions of the FIFA Statutes and the FIFA disciplinary code in its statutes and disciplinary code. The Second Respondent is a member league of SAFA and is bound by the SAFA Statutes; all the remaining Respondents are also bound by the SAFA Statutes as member clubs of the Second Respondent. As a result, all the Respondents are bound by the SAFA provisions, and by the rules of FIFA as incorporated in the SAFA regulations.

61. Under Articles 127 of the SAFA Disciplinary Code, the right was reserved for an appeal to be made to the “as set out” in Article 129, which in turn refers to the CAS.

62. The principle that SAFA and its members submitted to the jurisdiction of CAS is further reinforced by the SAFA Statutes at their Article 73, under which SAFA agreed and bound itself to enforce compliance with CAS decisions, and at Article 11.2.4, requiring the SAFA members to recognize “the judicial bodies of SAFA and the Court of Arbitration for Sport (CAS) in Lausanne, as specified in these Statutes”.

63. According to the Appellant, then, its appeal is admissible, as it was filed within the time limit set by Article R49 of the Code and Article 57 of the FIFA Statutes: in fact, the appeal proceedings against the 15 August Letter were instituted on 6 September 2021, in full respect of the indicated deadline.

64. The Appellant submits finally that the requirements of res judicata have not been met in the present case: therefore, these proceedings are not affected by it. Indeed, the Appellant underlines that the existence of res judicata is subject to the “triple identity test” used in all jurisdictions: the parties must be the same, the claim must be the same, the claim must have been decided on merits and finalized. Such test is not satisfied with respect to both grounds on which the exception of res judicata as raised by the Second and Third Respondents is premised:

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i. with respect to the withdrawal of the first CAS appeal, it is to be noted that a termination order is not final and cannot produce a res judicata effect, if the appeal is withdrawn before the constitution of the panel and the filing of the appeal brief;

ii. with respect to the HC Order, a civil court judgement could not have a res judicata effect since, in accordance with its rules which prohibit the recourse to ordinary courts, SAFA stance is that courts have no jurisdiction to determine the correctness of the SAFA, NSL and FIFA regulations. In any event, it must be noted that the parties to the proceedings in which it was rendered are not the same as the parties in the current arbitration, the HC Order did not deal with the merits of the Epstein Award, but only with the power of the arbitrator who rendered it. In addition, the HC Order did not help create certainty as to the application of the relevant rules, on which only CAS can be the arbitral tribunal to decide.

B. The Position of the Respondents

B.1 The Position of the Second Respondent

65. In its Answer, the Second Respondent sought: “an order dismissing Royal AM’s appeal with costs”.

66. In support of its request, the Second Respondent denies the jurisdiction of CAS to determine the appeal, disputes the admissibility of the appeal in respect of the non-compliance with the applicable deadline and the defect in the “appeal paper” precluding the entertainment of the appeal, and invokes res judicata as a preclusion to the Appellant’s claims.

67. According to the Second Respondent, the Appellant has failed to make out a case to show that CAS has jurisdiction to hear this case. In fact:

i. as recognized by the CAS jurisprudence, the provisions of the Statutes of FIFA invoked by the Appellant do not offer a sufficient basis for the CAS jurisdiction. Article 57 of the FIFA Statutes in any case was incorrectly stated by the Appellant;

ii. the SAFA Statutes do not provide for CAS jurisdiction. The provisions referred to by the Appellant imply at most a recognition of CAS, but do not confer jurisdiction to hear appeals beyond the narrow limits in which such jurisdiction is granted. Actually, as made clear by the examination of a CAS precedent involving SAFA (the award in CAS 2013/A/3276, Thanda Zulu FC (Pty) v/ South African Football Association & al.: the “Thanda Zulu Award”), the SAFA Statutes were amended in 2017, and the provisions previously conferring jurisdiction to CAS (Articles 70.6 and 72 of the version previously in force) were deleted and replaced by new rules, making no reference to CAS (Article 71.6 of the text currently in force), or limiting the mention to CAS to the obligation of SAFA to ensure compliance with final decisions of FIFA and CAS;

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iii. equally the SAFA Disciplinary Code does not provide CAS with jurisdiction, because its Article 127(2) applies only to decisions taken by the Appeal Committee, and the 19 August Letter is not a decision of the Appeal committee, and Article 129 is of no assistance to the Appellant.

68. In summary, there is no provision in the NSL Handbook, SAFA Statutes or SAFA Disciplinary Code, which provides for a right for an appeal and/or review to CAS following an unsuccessful review report and/or review in terms of Article 143 of the SAFA Disciplinary Code. Accordingly, CAS does not have jurisdiction to hear an appeal against the Epstein Award and/or SAFA’s decision declining the Appellant’ request for review.

69. The admissibility of the appeal is disputed by the Second Respondent under several points of view. The Second Respondent, in fact, contends that:

i. the Appellant has no standing to appeal, because it did not establish a legally protected interest at the moment the appeal was launched;

ii. the Appellant’s statement of appeal failed to comply with Article R51 of the Code, because it failed to include any list of witnesses or witness statements or a brief summary of their expected deposition;

iii. the Appellant has not challenged the disciplinary proceedings for failing to participate in the play-off matches;

iv. the current CAS proceedings were not instituted or authorized by the Appellant, in light of the sale of its football activities, and its decision, communicated to the NSL on 7 September 2021, not to continue these proceedings and not to appoint attorneys. Any subsequent ratification is ineffective and late;

v. the relief sought by the Appellant against the 21 May Note are “out of time”.

70. In the Second Respondent’s opinion, then, any review sought by the Appellant of the Epstein Award is inadmissible, as it is covered by res judicata. The relief sought before CAS, in fact, is the same as the operative part of the HC Order, which is final and binding on the merits of the Appellant’s challenge to the Epstein Award.

B.2 The Position of the Third Respondent

71. In its Answer, the Third Respondent requested that: “The matter … be dismissed in its entirety” and that “Royal AM and its successor, […], should be held liable for the costs of the appeal incurred by Sekhkhune FC”

72. According to the Third Respondent, the appeal of the Appellant is inadmissible, and should be rejected, for a number of reasons:

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i. CAS has no jurisdiction to hear an appeal against final and binding orders and judgments of the High Court. The validity of the Epstein Award was finally determined in the HC Order, and cannot be disputed before CAS;

ii. Royal has no standing to raise an appeal before CAS against the Epstein Award, because it played no role in the proceedings that led thereto;

iii. the appeal was filed by the Appellant when the deadline of 21 days after decision challenged had expired;

iv. no basis is provided to challenge the 19 August Letter, also in light of the fact that the Appellant had no standing to request a review before SAFA of the Epstein Award.

B.3 The Position of the other Respondents

73. The First Respondent, the Fourth Respondent, the Fifth Respondent and the Sixth Respondent took no position in the course of this arbitration.