Jurgen Borg v. Malta Football Association (MFA)

II. FACTUAL BACKGROUND

3. The present dispute concerns the registration of the Appellant with a Maltese football club that the Respondent was requested to cancel by the Appellant so that the latter is able to register with a new football club.

(operative part of 17 January 2018)

4. Below is a brief summary of the main facts and allegations based on the Parties’ written submissions and the CAS file. Additional facts and allegations found in the Parties’ submissions and evidence may be set out, where relevant, in other parts of this award.

1. The Appellant’s employment at Hibernians Football Club

5. On 19 June 2014, the Appellant and the Maltese football club, Hibernians Football Club (hereinafter the “Hibernians FC”) concluded and signed an employment contract (hereinafter the “Employment Contract”) whereby the Appellant was hired as a part-time professional football player with a monthly salary of EUR 350.00. The contracting parties agreed on a fixed contract term of 5 years, i.e. until the end of the season 2018/19.

6. On 9 June 2017, the summer transfer period for Malta opened.

7. In July 2017, Hibernians FC offered the Appellant an extension of the Employment Contract for an additional 2 years. The Appellant alleges that Hibernians FC threatened him in case he did not accept the offer he would not be allowed to join another football club neither on loan nor by transfer and, in addition, he would no longer play with Hibernians FC’s first team.

2. The termination of the Appellant’s employment contract with Hibernians FC

8. On 1 August 2017, the Appellant sent Hibernians FC a letter which reads as follows:

“I am writing you a notification notice to inform you that I am hereby unilaterally terminating my contract with Hibernians F.C. Following the recent events that transpired, whereby the club informed me that unless I sign a two (2) year extension I will not be part of the squad, I found no other option but to terminate my contract effective immediately.

P.S Notification of my termination has also been submitted to MFA”.

III. PROCEEDINGS BEFORE THE EXECUTIVE COMMITTEE OF THE MFA, THE

COMPLAINTS BOARDS OF THE MFA AND THE DISCIPLINARY BOARD OF HIBERNIANS FC

9. By letter of 1 August 2017, the Appellant informed the Executive Committee of the Respondent about the termination of the Employment Contract and requested the permission from the Respondent

“to register with a new club before the end of the summer transfer window without any condition except that due compensation is paid to the club in accordance with the rules and regulations of the Association, even if there is still a claim pending as to the substance of the dispute between the player and the club”.

(operative part of 17 January 2018)

10. With letter dated 4 August 2017 (registered as received by the Respondent on 8 August 2017), the Appellant filed a claim with the Complaints Board of the Respondent requesting the latter to rule as follows:

“i) The Complaints Board acknowledges the termination of the contract;

ii) The [Appellant] can register with any other club with immediate effect without any condition except that due compensation is paid to the club in accordance with the rules and regulations of the Association;

iii) No sporting sanctions or disciplinary measures shall be imposed on the player as the termination of the contract was done outside the protected period”.

11. On 21 August 2017, a hearing was held before the Respondent’s Complaints Board at the MFA’s headquarters in Ta’Qali.

12. On 30 August 2017, the Complaints Board issued its decision. The decision reads, amongst others, as follows:

“the Board:

Declares that it does not have the competence ratione materiae to take cognizance of the requests submitted before it by [the Appellant], and therefore abstains from taking further cognizance of the same matter.

Orders that this case is submitted to the MFA Secretary so that the latter can submit it to the entity within the same Association that has the competence to take cognizance of the requests submitted by [the Appellant]”.

13. On 31 August 2017, the Maltese summer transfer window closed.

14. On 13 September 2017, Hibernians FC summoned the Appellant to appear before the club’s Disciplinary Board.

15. On 15 September 2017, after discussing the Appellant’s case on 3 August 2017 and 14 September 2017, the Respondent’s Executive Committee sent a letter to the Appellant (hereinafter the “Letter”) which reads – inter alia – as follows:

“After having heard the [Appellant] and the club concerned [i.e. Hibernians FC] the Board deemed it had no competence to act on the possible cancellation of the [Appellant’s] registration, citing Article 2.1.8 of Section IV (Regulations on the Status and Transfer of Players). The decision, as communicated to [the Appellant] on the 31st August 2018, is being enclosed with this letter.

(…)

(operative part of 17 January 2018)

Without prejudice to the [Appellant’s] right for registration once the dispute is resolved, the Executive Committee cannot uphold the request for a provisional registration. MFA regulations do not recognise a registration of a player that is provisional in nature.

Furthermore, no good and just cause was proven to the satisfaction of the Executive Committee to warrant the cancellation of the [Appellant’s] registration under Article 2.1.8 cited above”.

16. On the same date, the Appellant advised Hibernians FC that no disciplinary procedure could be initiated against him, since he was no longer under contract with Hibernians FC, since the Employment Contract had been terminated by letter of 1 August 2017.

17. On 20 September 2017 (registered as received by the Appellant on 26 September 2017), the Disciplinary Board of Hibernians FC suspended the Appellant for 28 days because the latter had failed to participate in the team’s training sessions.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

18. On 26 September 2017, the Appellant filed a request for provisional measures with the Court of Arbitration for Sport (hereinafter the “CAS”) against the MFA. In application of Article R37 of the Code of Sports-related Arbitration (hereinafter the “Code”) the Appellant requested “the CAS to order that [the Respondent, i.e. the MFA] will allow the registration of the [Appellant] with any Maltese club that wants to sign him”.

19. By letter dated 29 September 2017, the CAS Court Office granted the Respondent a deadline of 10 days to file its position with respect to the Appellant’s request for provisional measures pursuant to Article R37 of the Code.

20. On 5 October 2017, the Appellant filed his statement of appeal against the Letter with the CAS in accordance with Article R48 of the Code. The appeal is directed against the MFA. The Appellant requested that the present case be submitted to a sole arbitrator.

21. By letter of 6 October 2017, the Respondent was invited to inform the CAS Court Office within 5 days whether it agreed to the appointment of a sole arbitrator in the present matter.

22. On 7 October 2017, the Respondent filed its comments on the Appellant’s request for provisional measures and objected to CAS’ jurisdiction to hear this appeal.

23. On 10 October 2017, the Appellant was invited by the CAS Court Office to file his comments on Respondent’s objection to CAS’s jurisdiction, as set out in its answer to the request for provisional measures.

24. On 12 October 2017, the Appellant filed his comments to the Respondent’s objection to CAS’ jurisdiction.

(operative part of 17 January 2018)

25. On 18 October 2017, the Appellant filed his Appeal Brief, pursuant to Article R51 of the Code.

26. On 19 October 2017, the CAS Court Office noted that it had not received any submission from the Respondent within the granted deadline regarding the Appellant’s request for the appointment of a sole arbitrator. Accordingly, it advised the parties that it would be for the President of the CAS Appeals Arbitration Division to decide the issue in accordance with Article R50 of the Code.

27. On 24 October 2017, the President of the CAS Appeals Arbitration Division rejected the Appellant’s request for provisional measures.

28. By letter of the same date, the CAS Court Office notified the decision on the Appellant’s request for provisional measures to the parties. In addition, the CAS Court Office forwarded the Appellant’s Appeal Brief to the Respondent and granted the latter a deadline to file its Answer within 20 days upon receipt of this letter.

29. On 25 October 2017, the Appellant requested “that these proceedings are continued in an expedite manner and that the final Award (or at least, its operative part) is – at the latest – issued prior to the end of the next transfer window (which is set on 31 January 2018)” and “that it would be more appropriate that the Final award (or its operative part) is issued before the start of the next transfer window (2 January 2018) – or at the very least – not later than 2 weeks before the end of the next transfer window”.

30. By letter dated 26 October 2017, the CAS Court Office acknowledged receipt of the Appellant’s request and advised that the request would be transmitted to the Panel/Sole Arbitrator, once constituted, for its/his/her consideration.

31. By letter dated 13 November 2017, the CAS Court Office advised the parties that the President of the CAS Appeals Arbitration Division had decided to appoint a Sole Arbitrator to hear the present appeal, pursuant to Article R50 of the Code.

32. By letter of 23 November 2017, the CAS Court Office informed the parties that the Panel had been constituted in accordance with Article R54 of the Code as follows:

Sole Arbitrator: Prof. Ulrich Haas

33. On 30 November 2017, the Respondent filed its Answer, pursuant to Article R55 of the Code.

34. By letter dated 4 December 2017, the Appellant informed the CAS Court Office that “we believe that an award can be issued based solely on the parties’ written submissions”. By email dated 5 December 2017, the Respondent agreed with the Appellant’s view that the matter can be decided upon by the Sole Arbitrator on the basis of the written submissions filed.

35. On 15 December 2015, the CAS Court Office advised the parties that the Sole Arbitrator deems himself sufficiently well-informed to decide this case based on the parties’ written submissions,

(operative part of 17 January 2018)

without the need to hold a hearing. Also in 15 December 2017, the CAS Court Office advised the parties that Mr Oliver Vogel had been appointed as ad hoc Clerk in the present matter.

36. On 18 December 2017, the CAS Court Office forwarded to the Parties an Order of Procedure and invited them to return a signed copy thereof by 27 December 2017.

37. On 20 December 2017, the CAS Court Office acknowledged receipt of the Order of Procedure signed by both parties.

38. On 17 January 2018, the Sole Arbitrator issued the operative part of the award.

V. POSITIONS OF THE PARTIES

39. The following is a summary of the parties’ submissions and does not purport to be comprehensive. However, the Sole Arbitrator has thoroughly considered all the evidence and arguments submitted by the parties, even if no specific or detailed reference has been made thereto in the following outline of their positions and in the ensuing discussion of the merits.

A. The Appellant

40. The Appellant is – in essence – of the view that the decision contained in the Letter must be set aside. In support of his requests, the Appellant submits as follows:

(a) The Letter qualifies as a decision within the meaning of the Code and, therefore, can be appealed by the Appellant. The letter contains a ruling which affects the legal situation of its addressee, i.e. the Appellant.

(b) Furthermore, the decision contained in the Letter is final and binding according to Article 5.1. MFA Regulations on the Status and Transfer of Players (hereinafter the “MFA RSTP”). There is no internal instance within the MFA, to which the Letter can be appealed. Hence, the Appellant has exhausted all available internal remedies.

(c) The Respondent maintains and upholds a system whereby a player cannot terminate his employment contract with a Maltese football club without the approval of the decisionmaking bodies of the MFA. According to the Appellant this follows from Article 2.2.3. (g) MFA RSTP which reads as follows:

“Notwithstanding the above, the Complaints Board is entitled to terminate any contract or a modification of a contract or a termination of a contract between a Club and a player either conditionally or without any condition upon the application of the Club or the player provided that a good and just cause is proven to the satisfaction of the Complaints Board”.

(operative part of 17 January 2018)

(d) This system whereby a player cannot terminate his employment contract with a Maltese club without the approval of the decision-making bodies of the MFA is illegitimate, because

- the procedure is unfair, since the decision-making bodies lack equal representation between players and club;

- the players are prevented from seeking recourse in front of ordinary courts in Malta regarding employment-related disputes with the clubs;

- in order to obtain the termination of the contract (for just cause) the player would have to go through lengthy proceedings, i.e. three instances (Complaints Board, Appeals Board and Independent Arbitration Tribunal). All of these body lack equal representation of players and clubs and are, thus, constituted contrary to Article 22 FIFA RSTP. The Maltese regulatory framework puts players at a disadvantage from the outset and must be declared illegitimate. The Maltese football players, who are not members of the MFA, but are only registered with the latter, lack any legal representation in the MFA Executive Committee, the MFA Council, the Appeals Board or the Independent Arbitration Tribunal. Consequently, the player’s right to a fair and equitable remedy is not guaranteed in such procedure.

- Requiring a permission from anyone in order for a player to terminate his employment contract infringes upon the player’s fundamental rights. Such approach has been declared illegitimate on several occasions by CAS as it compels a player to perform an employment contract against his will.

- Because the system is illegitimate, the Appellant did not follow the termination procedure as foreseen in the MFA RSTP.

(e) According to the Appellant “the structure (…) [maintained by the Respondent] results in a system wherein the Executive Committee of the MFA and the MFA Council (…) have disproportional influence to determine whether a player (playing for one of their member clubs) has a just cause to terminate his employment contract with a club. Equally, the MFA Executive Committee (…) has the ability to determine whether a player’s registration can be cancelled (and thus whether a player can be registered with another Maltese club)”.

(f) The above legal framework does not comply with Article 59 of the FIFA Statutes. According thereto, the member federations must implement independent arbitration tribunals that allow for equal representation by the clubs and the players in order to ensure fair proceedings. Furthermore, the Maltese legal framework violates Article 22 of the FIFA Regulations on the Status and Transfer of Players (hereinafter the “FIFA RSTP”) and is incompatible with the FIFA Circular Letter No 1010.

(operative part of 17 January 2018)

(g) The Appellant submits that “it is imperative to recall that the current appeal does not require a decision from the Sole Arbitrator as to the question whether [the Appellant] terminated his employment contract with or without just cause on 1 August 2017. In fact, this is not what the Executive Committee of the MFA decided and therefore not what the current appeal relates to. Instead, the MFA Executive Committee determined that no “good and just cause” was proven to the satisfaction of the MFA Executive Committee to warrant the cancellation of [the Appellant’s] registration with Hibernians FC”.

(h) Notwithstanding the above, the prerequisite in Article 2.1.8. MFA RSTP (“good and just cause”) for the cancellation of the registration and the fate of the contractual relationship between the player and the club are “interlinked and cannot be considered separate issues; it would be illogical to conclude that a player no longer has a contractual relationship with the club, but that – at the same time – the player is ordered to remain registered with the club and cannot play for any other club”. Since the contract was terminated on 1 August 2017, there “cannot possibly be any valid reason for the MFA to maintain the registration of the player with the Hibernians FC”. Any decision to the contrary

- is incompatible with Maltese law that is applicable subsidiarily, since the MFA is domiciled in Malta;

- unduly infringes on the Appellant’s “fundamental right to work and his right to freelychosen employment”;

- prevents the [Appellant] from continuing his football career and thus deprives him from his right to work and his right to freely choose his employment, these rights being human rights as established in article 23 par. 1 of the Universal Declaration of Human Rights”; and

- is in violation of CAS jurisprudence.

(i) In this context, the Appellant submits “that there are two factual circumstances that cannot be denied in the present matter”, namely “(i) The Appellant terminated his employment contract on 1 August 2017, and (ii) As a consequence thereof, the Appellant is no longer contractually bound to Hibernians FC”. Thus, “there cannot possibly be any valid reason for the MFA to maintain the registration of [the Appellant] with Hibernians FC. (…) As such, for the MFA Executive Committee to conclude (without reasoning or justification (!)) that there is no “good and just cause” for the cancellation of the registration of [the Appellant] with Hibernians FC, whereas there is no longer an employment contract in existence between the player and said club, is plainly illogical and illegitimate”.

(j) The Respondent has denied the Appellant’s request arguing (in the Letter) that the legal framework within the MFA “does not recognise the registration of a player that is provisional in nature”. The Appellant contests this reasoning for two reasons:

(operative part of 17 January 2018)

- the Appellant has never requested the MFA for a provisional registration; the Appellant requested the cancelation of its registration with Hibernians FC with immediate effect in order to be declared free to register with any other club.

- the MFA is barred from arguing that it does not recognise provisional registrations, because according to Article 6 para 1 FIFA RSTP in conjunction with Article 1 para 3 a) FIFA RSTP the MFA is obliged vis-à-vis FIFA to implement these provisions within its own jurisdiction.

(k) On a subsidiarily basis the Appellant submits that “good and just cause” to cancel the termination follows from the fact that the Appellant – undoubtedly – terminated the Employment Contract with Hibernians FC. This conclusion is also supported by the MFA RSTP, in particular by Article 2.1.3. of the MFA RSTP. According thereto the registration of a player requires – besides the duly filled out the registration form – the filing of a written contact between the player and the Maltese club with the MFA. Consequently, where there is no longer a written contract, because the latter has been terminated, the registration must be cancelled.

41. The Appellant has filed the following prayers for relief:

“The Appellant is respectfully requesting the [CAS]:

a) To set aside the decision of the MFA notified to the [Appellant] on 15 September 2017.

b) To order the MFA to recognise that the employment contract between the Maltese club, Hibernians Football Club, and the [Appellant] has been terminated by the [Appellant] on 1 August 2017.

c) To rule that the registration of the [Appellant] with Hibernians Football Club is automatically cancelled in view of the fact that the employment contract between the [Appellant] and the Maltese club has been terminated through the [Appellant’s] termination notice of 1 August 2017.

d) To rule that the system maintained by the MFA which does not allow a party to terminate a contract without the approval of the MFA decision-making bodies is illegitimate.

e) To rule that the [Appellant] can register with any other Maltese club.

f) To condemn the MFA to pay the entire CAS administration costs and the arbitration fees and to reimburse the [Appellant] of any and all expenses he incurred in connection with this procedure.

In the alternative:

g) To set aside the decision of the MFA notified to the [Appellant] on 15 September 2017.

(operative part of 17 January 2018)

h) To order the MFA to recognise that the employment contract between Hibernians Football Club and the [Appellant] has been terminated by the player on 1 August 2017.

i) To rule that there is a “good and just cause” that warrants the cancellation of the [Appellant’s] registration.

j) To rule that the [Appellant] can register with any other Maltese club.

k) To condemn the MFA to pay the entire CAS administration costs and the arbitration fees and to reimburse the [Appellant] of any and all expenses he incurred in connection with this procedure”.

B. The Respondent

42. The submissions of the Respondent, in essence, may be summarised as follows:

(a) According to Article R47 of the Code the Appellant must exhaust all (internal) legal remedies available to him. According to the Respondent the Appellant has failed to do so. Therefore, the procedure before the CAS is untimely, abusive and must be rejected. In particular, the Appellant could have requested the MFA Council for a revision of the Letter in accordance with Article 49 (xiii) MFA Statutes. This provision reads as follows:

“The Council shall have the power to annul any decision taken by an official, Board or Committee of the Association, except a decision of the Independent Arbitration Tribunal established in this Statute, if it results that such decision was taken in blatant breach of the rules, regulations and byelaws of the Association or in blatant breach of the decisions or directives of a competent body of the Association. In such instance the Council shall refer back the case regarding which a decision is annulled to the official or body which had taken such decision to reconsider properly the case in accordance with the rules, regulations, bye-laws, decisions and directives of the Association”.

(b) The Respondent also contests CAS jurisdiction on the grounds of forum non conveniens. According to the Respondent the MFA Council is the more appropriate forum to decide the matter and therefore should be regarded as the competent instance in the present case.

(c) The Appellant’s objections regarding the composition of the various MFA’s bodies are without merits, since the MFA Complaints Board – the only organ to which the Appellant addressed his request – is a body composed of an equal number of persons representing players’ and clubs’ interests.

(d) The Appellant’s request was and still is exclusively aimed at obtaining a provisional registration. This clearly follows from the wording of the original request of 1 August 2017 whereby the “the player is seeking permission from the [MFA] to register with a new Club (…) even if there is still a claim pending as to the substance of the dispute between the player and the club”. This request implies that:

(operative part of 17 January 2018)

- “there has presumably been a ‘claim’, that in the humble view of the Respondent was initiated in procedural terms solely and exclusively by the Appellant himself through the unilateral nonadherence to the contract in force between him and his club; and

- at no moment did the Appellant appear minimally interested in addressing such claim in substance, presumably because his sole intention was to rescind the contract”.

(e) The Respondent heard also Hibernians FC. The latter held the position that there (still) was a valid employment contract between the club and the Appellant. This is also the reason why Hibernians FC initiated internal disciplinary proceedings against the Appellant which are still pending as of today and which are undisputed by the Appellant.

(f) The Appellant’s request “to register with a new club in accordance with the rules and regulations of the Association” falls “outside the scope of these proceedings”. The “Respondent is certainly not the right defendant” and has “no locus standi” when it comes to examining “the merits of the differences – if any – the [Appellant] could have had with his club Hibernians FC and the reasons behind such differences”.

(g) The conditions to cancel a registration with a Maltese club solely follows from Article 2.1.8. of the MFA RSTP. The FIFA RSTP, on the contrary, are not applicable. The MFA RSTP provide that a contract can only be terminated “either by written agreement between both parties, or unilaterally for just cause or sporting just cause according to FIFA or the Association’s regulations” (Article 2.2.2. (k) MFA RSTP). No unilateral termination of the contract is possible without just cause.

(h) Furthermore, the MFA RSTP provide that even if there is just cause, “only the Complaints Board is entitled to terminate (…) a contract between a Club and a player (…) upon the application of the Club or the player” (Article 2.2.3. (g) MFA RSTP). The Complaints Board will only rescind the contract if “good and just cause” is proven to its satisfaction.

(i) The Appellant never filed a request that the MFA Council shall terminate the Employment Contract with good and just cause according to article 2.2.3. (g) MFA RSTP. Instead, the Appellant was of the view that the contract came (automatically) to an end once he notified the club with the termination letter and, therefore, only requested the Complaints Board in his petition dated 4 August 2017 to “acknowledge the termination of the contract”. Such request was dismissed by the Complaints Board, because the latter is only entitled to bring a contract to an end if a good and just cause exists. This decision of the MFA Complaints Board has not been contested by the Appellant. Thus, the decision is vested with res judicata-effects and all possible legal remedies against this decision of the MFA Complaints Board are now “fuori termine”.

(j) A unilateral termination of the contract (independent of a just cause) is not possible according to the applicable rules and cannot be acknowledged by the Complaints Board.

(operative part of 17 January 2018)

The fact that Article 2.2.3. (f) MFA RSTP provides for damages in case a party unilaterally terminates a contract on the basis of the respective FIFA rules “is not tantamount to recognising a right to terminate a contract unilaterally without just cause”, because this “would run counter to the principle of contractual stability”.

(k) In view of the above, the Employment Contract is – for the time being – still valid. The issue whether the Appellant’s registration may be cancelled can only be resolved once the dispute concerning the contractual matter between the club Hibernians FC and the Appellant has been resolved. Thus, the Executive Committee of the MFA – according to the Respondent – correctly stated in the Letter that the decision taken is “without prejudice to the player’s right for registration once the dispute is resolved”.

(l) The refusal to cancel the registration does not adversely impact the Appellant in an inappropriate manner. It was the Appellant who chose to terminate the contract without just cause. The player suffers a self-inflicted hardship due to his non-adherence to his contractual obligations. Furthermore, he is not adversely affected because he has a fulltime job outside of football. In addition, the Respondent also refers to the principles of commodum ex injuria sua non habere debet (i.e. one ought not to profit from his own tort) and ex turpi causa non oritur actio (i.e. from a self-created cause an action does not arise) in the present case.

(m) The Appellant cannot avail himself in the proceedings before the CAS that there is just cause to cancel the registration, since the decision of the Complaints Board of the MFA has res iudicata effects and, in addition, such defense violates the principle of venire contra factum proprium in light of the Appellant’s petition before the MFA’s Complaints Board. In the context of the proceedings before the Respondent’s Complaints Board the Appellant and his representative stated unequivocally that the Employment Contract had been unilaterally terminated without just cause.

43. The Respondent submitted the following prayers for relief:

“the Respondent respectfully asks the CAS to reject the appeal;

- to confirm the decision taken by the Executive Committee of [the MFA] on the 15th September 2017; and

- to order that all costs pertaining to this procedure shall be borne by the Appellant”.