Labour Disputes
Texto da decisão
REF. FPSD-10809
Decision of the
Dispute Resolution Chamber
passed on 25 January 2024
regarding an employment-related dispute concerning
the player Abdoulaye Touré
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Mario Flores Chemor (Mexico), member
Angela Collins (Australia), member
CLAIMANT:
Abdoulaye Touré, France
Represented by Ms Audrey Bruin
RESPONDENT:
Genoa CFC, Italy
Represented by Lombardi Associates
pg. 2
REF. FPSD-10809
I. Facts of the case
1.
On 24 December 2020, the Italian club Genoa CFC (hereinafter: the Respondent or club) sent
an offer to FC Nantes, the former club of the French player Abdoulaye Toure (hereinafter:
the Claimant or player), for the temporary transfer of the Claimant alongside a buy-option
within the context of said offer. Said offer was eventually rejected.
2.
On the same day, the Respondent made an offer of employment to the Claimant, in case
negotiations for the temporary transfer were successful, with the following conditions:
-
2020-2021 (loan period): total salary of EUR 500,000 net;
After potential buy-option
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2021-2022: EUR 1,250,000 net per annum;
-
2022-2023: EUR 1,250,000 net per annum;
-
2023-2024: EUR 1,250,000 net per annum;
-
2024-2025: EUR 1,250,000 net per annum.
3.
On 26 August 2021, the Respondent sent an offer for the permanent transfer of the player
to FC Nantes, which was subsequently accepted.
4.
On the same day, the Respondent sent the Claimant an offer of employment in case
negotiations for the temporary transfer were successful, with the following conditions:
-
Duration: four seasons (2021-2022 until 2024-2025)
-
Remuneration:
o
o
o
-
2021-2022: EUR 1,200,000 net per annum;
2022-2023: EUR 1,200,000 net per annum;
2023-2024: EUR 1,200,000 net per annum;
2024-2025: EUR 1,200,000 net per annum.
5.
On 28 August 2021, the Claimant and the Respondent signed an employment contract
(hereinafter: the Contract) valid as from the date of signature until 30 June 2023.
6.
In accordance with the Contract, the Respondent undertook to pay the Claimant a net
annual salary of EUR 1,200,000, i.e. corresponding to a monthly salary of EUR 100,000 net.
pg. 3
REF. FPSD-10809
7.
Furthermore, the Contract stipulated under art. 4 thereunder as follows:
“The resolution of all disputes regarding the interpretation, performance or termination of the
employment contract or of other agreements, as well as all disputes in any way ascribable to
the relationship between the Club and the Player are referred to the “Collegio Arbitrale” (Arbitral
Tribunal), which shall rule in the way and time required by the provisions of the relevant
Regulations that constitute an appendix to the Collective Bargaining Agreement.”
8.
On 29 November 2021, the Respondent engaged an agent (hereinafter: the Agent) for the
purposes of negotiating a contractual extension with the player. A remuneration payable
by the Respondent in favour of the Agent of EUR 750,000 in three equal instalments had
been agreed upon therein, in case the contractual extension would be successfully
concluded (cf. art. 4 b) 2) thereunder).
9.
On 31 December 2021, the Claimant and the Respondent allegedly concluded a contractual
extension pursuant to which the term of the Contract would be extended until
30 June 2025, under the same financial conditions but with an additional annual
guaranteed bonus payment of EUR 300,000 net foreseen as from 1 July 2022 (hereinafter:
the Extension).
10. On 8 January 2022, the Turkish club Fatih Karagümrük made an offer to temporarily acquire
the services of the player until the end of the season (i.e. June 2022).
11. On 11 January 2022, the Respondent replied to Fatih Karagumruk as follows:
“We respond to your offer of January 8, 2022. (…) We confirm the following:
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Free loan for 6 months (January 2022 / June 2022).
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Maximum salary of EUR 300,000 net that pays your club.
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Mandatory buy option in case the Player plays in the first eleven in more than 14 games.
This proposal is conditional upon Genoa and Club Karagumruk signing a valid transfer
agreement and the player Touré and Karagumruk signing a valid employment contract.”
12. On 21 January 2022, the Claimant was temporarily transferred from the Respondent to
Fatih Karagümrük, with the expiry of the loan taking place on 30 June 2022.
13. On 9 February 2022, the Respondent received a default notice from the Agent who had
been in charge of negotiating the Extension for EUR 250,000, i.e. the first instalment due
for purportedly successfully concluding the Extension.
14. On 28 February 2022, the Claimant sent a copy of the Extension was filed sent to the
registration department of Serie A.
pg. 4
REF. FPSD-10809
15. On 23 March 2022, the Respondent replied to said letter and firmly rejected any claim for
remuneration by the Agent, arguing that no extension had been validly and bindingly
concluded.
16. On the same day, a further copy of the Extension was filed sent to the registration
department of Serie A by the Claimant.
17. On 24 March 2022, Serie A informed the Claimant that the contractual extension was null
and void on account of the following reasons:
-
The Extension was not submitted to Serie A within the requisite time limit – i.e. no
later than 31 December 2021;
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The Extension contained the same document number as the Contract.
18. In the meantime, the Respondent had been relegated to Serie B.
19. On 19 May 2022, the Respondent received a second default notice by the Agent, in the
amount of EUR 500,000.
20. On 3 June 2022, the Agent lodged a claim with a private alternate dispute resolution body
in Italy for outstanding amounts under the agency agreement.
21. On 30 June 2022, the Claimant contacted the Respondent upon his return from loan, and
requested the latter to confirm that the extension had validly been concluded and would
be executed.
22. On 15 July 2022, the Respondent filed a criminal complaint against the Agent for attempted
fraud in relation to the Extension with the Public Prosecutor’s Office of Genoa.
23. On 18 July 2022, the Claimant sent a further notice to the Respondent, requesting once
again confirmation of the extension, as well as reintegration into the first team training
camp of the Respondent.
24. On 21 July 2022, the Respondent informed the Claimant that the Claimant had not been
excluded from first team activities, and that the Contract was merely valid until
30 June 2023. No direct mention was made of the extension.
25. On 22 July 2022, the Claimant lodged a claim before the Italian National Dispute Resolution
Chamber – (hereinafter: Collegio Arbitrale) – in relation to an alleged exclusion from the
Respondent’s pre-season training camp.
26. On 1 August 2022, the ADR body chosen as a forum by the Agent and the Respondent in
relation to the agency agreement rejected the Agent’s claim, on account of the formalities
pg. 5
REF. FPSD-10809
of the agreement not having been met (i.e. document was not filed on time with Serie A),
thus no compensation being payable to the Agent thereunder.
27. On 8 November 2022, the Respondent was ordered by the Collegio Arbitrale to pay the
Claimant compensation for excluding him from the pre-season training camp.
28. On 23 March 2023, the Claimant filed a second claim with the Collegio Arbitrale for
outstanding amounts under the Contract.
29. On 30 June 2023, the Claimant granted the Respondent one last chance to give effect to
the contractual extension which had allegedly been concluded on 31 December 2021.
30. On 3 July 2023, the Respondent replied and once again insisted that the extension had not
been validly concluded, and will not be executed.
31. On 25 July 2023, the Claimant signed an employment contract with French club Le Havre
AC (hereinafter: the New Club) valid as from the date of signature until the end of the 20242025 season (hereinafter: the New Contract).
32. In accordance with the New Contract, the Claimant was entitled to the following monthly
remuneration:
-
EUR 45,000 for the season 2023-2024;
-
EUR 49,500 for the season 2024-2025.
II. Proceedings before FIFA
33. On 5 July 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
34. According to the Claimant, the Respondent unlawfully failed to send the Extension for
validation to Serie A, and subsequently wrongfully insisted that no extension whatsoever
had been concluded.
35. The Claimant insisted that the homologation of a document with national instances does
not affect the validity thereof for the sake of giving rise to legally binding obligations; per
the jurisprudence of the Football Tribunal and the Court of Arbitration for Sport, a
contractual document is valid and binding as long as it possesses the relevant essentialia
negotii.
pg. 6
REF. FPSD-10809
36. Beyond the valid signature of the Claimant and the Respondent on the extension, the
former also pointed out that the following aspects are circumstantially indicative of the fact
that the Respondent wished to prolong the term of the Contract from, originally, two
seasons, to subsequently four:
-
The offer sent by the Respondent to Nantes on 24 December 2020;
-
Correspondence exchanged between the Claimant’s personal agent and the
Respondent in the scope of negotiating a potential employment contract, should a
transfer agreement be concluded between Nantes and the Respondent;
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The offer sent by the Respondent on 26 August 2021 foreseeing four seasons as the
contractual term;
-
The fact that the Agent was hired to negotiate the terms of the Extension in
November 2021.
37. The Claimant equally emphasised that the letter sent by Serie A on 24 March 2022 does
not constitute a formal decision capable of producing a res iudicata effect.
38. The Claimant subsidiarily argued that, even if the Extension lacks formal registration, it
should at the very least give rise to liability on the Respondent’s part due to the principle
of culpa in contrahendo.
39. With the above in mind, the Claimant asserted that the non-recognition of the Extension
resulted in a contractual termination without just cause by the Respondent on 30 June
2023.
40. The requests for relief of the Claimant were, therefore, as follows:
-
EUR 2,400,000 net as compensation for breach of contract without just cause;
-
Interest as from 1 July 2023 at the standard annual rate of 5%;
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A registration ban imposed against the Respondent.
b. Position of the Respondent
41. In its reply, the Respondent contested both the admissibility of the claim and FIFA’s
jurisdiction on multiple grounds, as well as challenging the validity of the Extension in what
concerns the merits of the case.
42. Firstly, the Respondent firmly submitted that the Football Tribunal does not have
jurisdiction to hear the present dispute on account of the wording of art. 4 of the Contract
and the Extension, which both purportedly confer exclusive jurisdiction upon the Collegio
pg. 7
REF. FPSD-10809
Arbitrale, expressly, as well as by reference to the collective bargaining agreement
incorporated into the Contract.
43. The Respondent equally emphasised that the Collegio Arbitrale qualifies the requirements
for a fair trial and independent / impartial arbitral tribunal in accordance with FIFA Circular
no. 1010 and the (non-binding) National Dispute Resolution Chamber (NDRC) Standard
Regulations.
44. Subsequently, the Respondent moved on to contest the authenticity of the Extension.
45. In this respect, the former argued that there was a change in club management and that
the old CEO had approved the agency agreement without any authority to legally bind the
Respondent.
46. Additionally, the Respondent argued that it was no coincidence that the Extension was
purportedly concluded on the last day it could possibly trigger the compensation due to
the Agent – 31 December 2021 – since the latter had allegedly forged the Extension for the
sake of gaining a payment he was not entitled to.
47. The Respondent also wished to emphasise that the Extension contained the same
“document number” as the Contract, which further points to the conclusion that the
document has been forged. This is of importance according to the Respondent, as the
Federazione Italiana Giuoco Calcio (FIGC) utilises an online portal for keeping track of player
registrations which is only accessible by the clubs themselves, and, had the Respondent
indeed agreed to extend the Contract, it would have entered an instruction on said portal
for a new contractual document, which would have generated a new document reference
number.
48. The Respondent also pointed out that the Extension stated in print that no agent was used,
but that it had been subsequently added / amended in pen that the Agent had been
involved in the transaction. This further suggests, according to the Respondent, that the
Contract was used as a template for forging the Extension, and that the latter document
should be disregarded entirely.
49. The Respondent also outlined that the context surrounding the Extension is dubious, as
the Claimant had not been performing to a sufficient level and that the decision to loan
him to Fatih Karagumruk was representative of this. The Respondent emphasised that it
would make no sense to extend an employment contract for two further years with a player
whose performance did not warrant a contractual extension.
50. The Respondent also emphasised that the loan transfer agreement concluded for the
Claimant’s temporary transfer made explicit reference to the Contract – with an expiry date
of 30 June 2023 – and no mention of the Extension, which purportedly took place 21 days
pg. 8
REF. FPSD-10809
earlier. This further underpinned, in the Respondent’s view, that the Extension never took
place, and that the Claimant was fully aware thereof.
51. Moreover, the Respondent pointed to the fact that the Claimant, when lodging his claim
for outstanding remuneration before the Serie B judicial bodies, made reference to the
Contract with an expiry date of 30 June 2023.
52. In addition, the Respondent reiterated that, given that the Extension was only filed by the
Claimant after the deadline granted in the relevant domestic registration framework, it is
procedurally invalid.
53. Therefore, the Respondent requested it to be held that FIFA has no jurisdiction to hear the
present claim, that the claim itself is inadmissible, and that, in any event, it should be
rejected as to the merits.
c. Replica of the Claimant
54. In his replica, the Claimant firstly pointed out that the latest version of the collective
bargaining agreement referred to in the Respondent’s submission should be disregarded
on account of the fact that no translation from Italian was provided.
55. As to the contestation of jurisdiction, the Claimant outlined that, pursuant to art. 22 par. 1
lit. b) RSTP, parties “may decide” to opt out of FIFA’s jurisdiction by virtue of an arbitration
clause in favour of another forum. However, the Claimant asserted that he never manifestly
agreed to the jurisdiction of the Collegio Arbitrale, and that he was forced to accept it as
part of the Contract, given that it formed an integral part of, and was mandated under the
threat of sanctions in case of non-compliance, by the collective bargaining agreement.
56. Additionally, the Claimant argued that, as the Extension had not been registered with the
Serie A / FIGC, such Extension could not fall within the jurisdiction of the Collegio Arbitrale,
given that the collective bargaining agreement stipulated that any disputes between
“professional players registered within the Serie A and their respective clubs” may be
brought before the aforementioned Collegio Arbitrale.
57. Subsequently, the Claimant submitted that the Collegio Arbitratle – the purported forum
chosen by the parties in the Contract – did not conform to the requirements of equal
representation and the right to a fair hearing.
58. The Claimant argued this firstly because, allegedly, there is no list of arbitrators available
online which the parties may access, and beyond this, the procedural rules of the Collegio
Arbitrale dictate that, if the parties fail to choose an arbitrator, said arbitrator shall be
chosen by the president of the local civil court of the place where the Contract was
concluded – pursuant to Italian civil procedure law. The Claimant argued that this
represented a manifest flaw to the right to equal representation, given that the arbitrator,
pg. 9
REF. FPSD-10809
in the absence of a choice by the Claimant, would be chosen by the president of the civil
court of the same area as the Respondent.
59. Furthermore, the Claimant argued that the costs of lodging a claim before the Collegio
Arbitrale are excessive and thus significantly prejudice the parties’ access to justice when
having to lodge a claim. In a recent case in which the amount in dispute was EUR 700,000,
total procedural costs of EUR 44,000 had been ordered. According to the Claimant, this is
in breach of the NDRC standard regulations issued by FIFA and, once again, results in a lack
of equality before the tribunal, as the Respondent has far greater economic resources to
entertain an entire judicial procedure before the Collegio Arbitrale than the Claimant.
60. As to the merits of the claim, preliminarily the Claimant wished to point out that the
criminal proceedings bear no influence, given that the claim is directed against the Agent,
who is not a part of the present proceedings.
61. Furthermore, the Claimant argued that, considering the fact that the former CEO of the
Respondent, with whom the agency agreement was concluded, continued to occupy a
position within the club, there was at least apparent authority to conclude the agreement.
In any event, the circumstances of the agency agreement do not affect the fact that the
Extension contained the essentialia negotii of a binding employment contract.
62. The Claimant from thereon reiterated a number of his previous arguments, emphasising
in particular that the purported procedural flaws of the Extension do not affect its validity,
and additionally that the events taking place after the Extension was concluded have no
bearing on the fact that it had been validly and bindingly agreed to.
63. The Claimant also sent the original version of the Extension via post to FIFA for analysis.
64. In conclusion, the Claimant insisted on his request for relief.
d. Duplica of the Respondent
65. In its duplica, the Respondent addressed the admissibility of the collective bargaining
agreement and corrected the Claimant in his assertion that it had not been translated,
mentioning that the provisions on which it intends to rely have been duly translated, and
that it would be irrational to translate the entire collective bargaining agreement –
a document of 44 pages – of which only small portions are actually used within the scope
of the proceedings.
66. As to the jurisdiction of the Collegio Arbitrale, the Respondent insisted that the Claimant
expressly agreed to the jurisdiction of the aforementioned forum when lodging his first two
claims for outstanding amounts and exclusion from training, prior to the lodging of the
present claim before FIFA. Given that those disputes concerned the same contractual basis,
the Claimant’s conduct is, according to the Respondent, blatantly inconsistent.
pg. 10
REF. FPSD-10809
67. Moreover, and in any event, the Respondent insisted that the Claimant, by virtue of the
collective bargaining agreement, as well as the provision contained in art. 4 of the Contract,
agreed to the jurisdiction of the Collegio Arbitrale, and that, the argument of a “forced
arbitration” should be dismissed.
68. The Respondent also outlined that the Collegio Arbitrale meets the requirements of a fair
hearing and equal representation, and that Circular no. 1010 has been entirely complied
with.
69. Lastly, the Respondent asserted that the registration of the Claimant before Serie A is not
in question, as the Contract was validly and duly registered, and that the lack of registration
of the Extension pursuant to the relevant regulatory framework does not affect the
jurisdiction of the Collegio Arbitrale.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
70. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 5 July 2023 and submitted for
decision on 25 January 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
71. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players May 2023 edition), the Dispute Resolution
Chamber is – in principle – competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a French player and
an Italian club.
72. Notwithstanding, the Chamber took note of the fact that the Respondent challenged the
jurisdiction of FIFA to deal with the present matter.
73. More specifically, the Respondent had alleged that the Collegio Arbitrale was competent to
deal with the present matter, by virtue of art. 4 of the Contract, and that said deciding body
was an equitably represented, independent, national arbitration tribunal as required by
the FIFA Regulations (art. 22 par. 1 lit. b) RSTP).
pg. 11
REF. FPSD-10809
74. The Chamber also observed that the Claimant insisted on the competence of FIFA to
adjudicate the present claim, sustaining that the clause purportedly excluding FIFA’s
jurisdiction was not sufficiently clear nor exclusive, as well as asserting that the Collegio
Arbitrale is not an independent arbitration tribunal guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs.
75. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA NDRC Standard Regulations, which came into force on 1 January 2008.
76. In this context, the Chamber pointed out that it should, first and foremost, analyse whether
the provision contained in art. 4 of the Contract constituted a clear and exclusive
jurisdiction clause in favour of the Collegio Arbitrale. The Chamber hereby recalled the
wording thereof, which stipulated:
“The resolution of all disputes regarding the interpretation, performance or termination of the
employment contract or of other agreements, as well as all disputes in any way ascribable to
the relationship between the Club and the Player are referred to the “Collegio Arbitrale” (Arbitral
Tribunal), which shall rule in the way and time required by the provisions of the relevant
Regulations that constitute an appendix to the Collective Bargaining Agreement”.
77. Having analysed the wording of the abovementioned clause, the Chamber noted that clear
reference is made to the Collegio Arbitrale therein, and, not least importantly, that the
latter is further substantiated by way of the collective bargaining agreement which is
incorporated into the Contract.
78. Thus, the Chamber concluded that the jurisdiction clause under art. 4 of the Contract was
clear and exclusive in its wording.
79. The Chamber did not fail to take note of the Claimant’s line of reasoning that the clause
represents a “forced arbitration” as he did not expressly consent to the jurisdiction of the
Collegio Arbitrale during to the contractual negotiations.
80. In this respect, the Chamber deemed the argumentation of the Claimant unconvincing on
two particular grounds: firstly, as correctly pointed out by the Respondent, the Claimant
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REF. FPSD-10809
had submitted two claims to the Collegio Arbitrale within the context of the same clause as
in the Contract that lies at the basis of the present dispute.
81. The Chamber considered such conduct as venire contra factum proprium, as the Claimant,
having previously accepted the jurisdiction of the Collegio Arbitrale under an identical
clause and, arguably, the same contractual basis (the Extension being based on the
Contract, which formed the basis of the previous two disputes brought to the Collegio
Arbitrale).
82. The Chamber equally opined that the challenge to the Collegio Arbitrale’s competence was
also in contravention to the principle of good faith, given the submission of two previous
claims by the player to such deciding body.
83. Moreover, and not least importantly, the Chamber pointed out that the Claimant provided
no evidence as to any objection of the inclusion of such clause into the Contract during the
negotiation thereof, or after its conclusion. This further underpinned the conclusion of the
Chamber that the clause was not forced upon the player.
84. Lastly, and for the sake of completeness, the Chamber dismissed the line of argument that
the dispute falls outside the scope of the jurisdiction of the Collegio Arbitrale on account
of the player’s registration. Not only is it uncontested that, by virtue of the Contract, the
player himself was effectively registered with Serie A, but also the Extension, acting on the
basis of the Contract – which was successfully filed with the Italian authorities – falls within
the scope of the Collegio Arbitrale’s ambit by virtue of art. 4 thereunder.
85. Having established the foregoing, the Chamber turned its attention to the further prerequisites for establishing the competence of a NDRC. The Chamber namely referred to
principle of equal representation of players and clubs and underlined that this principle is
one of the very fundamental elements to be fulfilled, in order for a national dispute
resolution chamber to be recognised as such. Indeed, this pre-requisite is mentioned in
the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well
as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle
as follows: “The NDRC shall be composed of the following members, who shall serve a four-year
renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player
and club representatives (…); b) between three and ten player representatives who are elected
or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no
such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between
three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the
following: “The parties must have equal influence over the appointment of arbitrators. This
means for example that every party shall have the right to appoint an arbitrator and the two
appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators
are to be selected from a predetermined list, every interest group that is represented must be
able to exercise equal influence over the compilation of the arbitrator list”.
pg. 13
REF. FPSD-10809
86. With this in mind, the Chamber went on to consider the abovementioned criteria in turn.
a) Parity when constituting the arbitral tribunal
87. In this respect, the Chamber noted that art. 3.1 and art. 3.2 of the procedural rules of the
Collegio Arbitrale describe as follows: “the CA is normally made up of three members, two of
them appointed by the parties in the claim or in the answer, and the third one, with the functions
of president, appointed by agreement of the other two. (…)The Parties in their autonomy can
replace the CA with a Sole Arbitrator appointed by mutual agreement.”
88. The Chamber then turned to the wording of Circular no. 1010, which states that in order
for such requirement to be complied with, parties must have “equal influence over the
appointment of arbitrators (…) [and] equal influence over the compilation of the arbitrator list”.
89. Having done so, the Chamber deemed that the procedural rules of the Collegio Arbitrale
fall entirely within this definition. In this respect, the Chamber wished to point out that a
list of the arbitrators was easily accessible online, and upon inspecting such list, it was clear
that each interest group had equal influence in appointing arbitrators to the list – with the
club representatives nominating eight, and the players’ / coaches’ representatives
nominating four each.
90. Furthermore, the Chamber referred to the CAS award with reference 2021/A/7859, wherein
one reason for rendering the Croatian NDRC as incompatible was that the appointment of
the president of the panel was through the Executive Committee of the Croatian Football
Association, which was not deemed to constitute equal representation of both players’ and
clubs’ stakeholders.
91. In the present case, as the president of the respective panel is chosen by the two arbitrators
that are appointed by the parties themselves, the Chamber considered that the Collegio
Arbitrale appears to meet the threshold of parity.
92. Thus, in conclusion, the Chamber was satisfied that the requirement of parity when
constituting the tribunal was met by the Collegio Arbitrale.
b) Right to an independent and impartial tribunal
93. Subsequently, the Chamber analysed whether the Collegio Arbitrale met the requirement
of an independent and impartial arbitral tribunal.
94. In doing so, the Chamber took particular note of the following criteria as outlined under
the procedural rules:
“4.2: The Arbitrators have the obligation to refrain from accepting or continuing the assignment
if there are reasons, deriving from any subjective link, objective link, working or professional
pg. 14
REF. FPSD-10809
relationship with one of the Parties or their lawyers, which affect their independence or
impartiality or if the violation of the obligations imposed on them by the Regulation/CA is
ascertained, also in other arbitration proceedings, and, in any case, in the cases referred to
under Article 51 of the Procedural Civil Code.
4.3: The appointment of an Arbitrator can be challenged, in addition to the cases provided under
article 815 of the Procedural Civil Code, which is considered conventionally applied to the CA, in
case of violation of the code of ethics referred to in the last paragraph of this article and if, even
though he was bound to do so, he did not refrain from accepting the appointment. The recusal
is proposed by the Parties in the forms and terms referred to in Article 815 of the Procedural
Civil Code.
4.4: In case of abstention and/or acceptance of the recusal, the parties shall immediately take
all the steps required for the replacement, according article 3 above.”
95. At this point, the Chamber deemed it important to refer to the wording of Circular no. 1010,
pursuant to which the relevant arbitral tribunal must reject the appointment of any
arbitrators if there is any legitimate doubts about their independence. Furthermore, such
option to reject an arbitrator, and the procedure to conduct a replacement, must also be
entrenched clearly by an agreement, rules of arbitration or an applicable domestic
procedural framework.
96. Following a thorough assessment of the abovementioned provisions against the contents
of Circular no. 1010, the Chamber considered that these revealed a clear compliance with
the requirements of Circular no. 1010 – not only did it appear that parties are able to
challenge the appointment of an arbitrator based on a potential conflict of interests, but
moreover they are able to do so pursuant to a clear and equitable procedure as required
by Italian procedural law.
97. The Chamber once again referred to the seminal CAS award with reference
CAS 2021/A/7859, pursuant to which, inter alia, the Croatian NDRC was – contrary to the
Collegio Arbitrale – critically held as falling short of said requirement, inter alia due to the
fact that the latter foresaw no mechanism for challenge and replacement of arbitrators in
its regulations.
98. The Chamber did not fail to take note of the argument presented by the Claimant in respect
of the replacement procedure being conducted by the president of the local court where
the contract was concluded.
99. In respect of such line of reasoning, the Chamber acknowledged the argument presented
by the Respondent, who asserted that the president of each local civil instance in Italy is a
public official and that a challenge to his neutrality in choosing an arbitrator in the absence
of the parties’ choice can objectively not be upheld.
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REF. FPSD-10809
100. The Chamber also noted that, beyond a general geographical reference that the respective
president may or may not be from the same “town” as the Respondent, the Claimant failed
to elaborate exactly how such reason could constitute a serious threat to a fair potential
hearing, or adduce any evidence of past examples where this has been the case.
101. Therefore, the Chamber opined that equally the requirement of an independent and
impartial arbitral tribunal was met in the case at hand.
c) Principle of a fair hearing
102. Having established this, the Chamber went on to consider the requirement of ensuring a
fair hearing.
103. The Chamber took particular note of art. 6.2 of the Collegio Arbitrale’s procedural rules,
which stated that proceedings before said body include in any case written submissions,
and where appropriate, oral hearings and the possibility of hearing testimonies therein.
104. Furthermore, the Chamber was able to establish that both parties also have the right to be
legally represented pursuant to the subsections of art. 5 of the procedural rules.
105. The Chamber subsequently made reference to the wording of Circular no. 1010, which
states that each party must be granted the right to speak on all facts essential to the ruling,
represent its legal points of view, file relevant motions to take evidence and participate in
the proceedings. Equally, parties must have the right to be represented by a lawyer or other
expert.
106. In light of the above, and after analysing the wording of the Collegio Arbitrale’s procedural
rules against the contents of Circular no.1010, the Chamber was satisfied that the right to
a fair hearing was clearly provided for before the Collegio Arbitrale.
d) Right to contentious proceedings
107. The Chamber went on further in its deliberations to consider the right to contentious
proceedings, which constitutes a pre-requisite for compliant NDRCs pursuant to Circular
no. 1010.
108. In doing so, the Chamber made reference to art. 6.1 of the Collegio Arbitrale’s procedural
rules, which outlines that the “adversarial principle and right of defence” must be respected
by the tribunal at all times.
109. The Chamber considered that, whilst being broadly worded, such provision echoed the
contents of Circular no. 1010, which lays down that “each party must be entitled to examine
and comment on the allegations filed by the other party and attempt to rebut and disprove them
with its own allegations and evidence.”
pg. 16
REF. FPSD-10809
110. Furthermore, the Chamber observed that the Claimant did not provide any argumentation
to the contrary – which served to underpin its conclusion.
111. Thus, the Chamber was satisfied that also this requirement was met by the Collegio
Arbitrale.
e) Principle of equal treatment
112. The last criterium the Chamber referred to in respect of the Collegio Arbitrale’s compliance
with Circular no. 1010 was the principle of equal treatment.
113. Most notably, the Chamber deemed that such requirement – in obvious addition to the
previously mentioned criteria – concerned the matter of procedural costs.
114. The Chamber took note of the line of reasoning by the Claimant, that the substantial
arbitration costs involved in proceedings before the Collegio Arbitrale represent a conflict
with the standard NDRC regulations of FIFA, given that the Respondent’s financial means
to undergo such a costly judicial procedure comfortably exceed those of the Claimant. This
would allegedly result in an “unequal treatment” of the parties and an obstacle to access to
justice.
115. In this respect, the Chamber considered that the existence of costs involved in the
proceedings brought before the Collegio Arbitrale did not, per se, mean that there is a
violation of equal treatment, the right to a fair trial or any other requirement of an NDRC
pursuant to the current framework.
116. The Chamber hereby deemed it important to point out that the NDRC regulations to which
the Claimant made reference constitute merely an instrument of guidance, and do not bind
any NDRC to provide free procedures as indicated therein.
117. Furthermore, and with specific reference to the Collegio Arbitrale, based on the evidence
provided by the Claimant suggesting an inequality and unfair trial caused by the arbitration
costs, it appears that such costs are determined in accordance with reference to the
success of the respective proceedings – an entirely objective criterium, in the Chamber’s
opinion, that falls within the criteria set out by Circular no. 1010.
118. Therefore, the Chamber concluded that the Collegio Arbitrale provided sufficient access to
justice and respected the principle of equal treatment.
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REF. FPSD-10809
f) Conclusion
119. Summarising the abovementioned deliberations, the Chamber considered that the
Collegio Arbitrale objectively fulfilled the following requirements, as prescribed by Circular
no. 1010:
-
Parity when constituting the arbitral tribunal;
Right to an independent and impartial tribunal;
Principle of a fair hearing;
Right to contentious proceedings;
Principle of equal treatment.
120. Moreover, and not least importantly, the Chamber understood from the evidence on file
that the abovementioned provisions forming the procedural rules of the Italian Collegio
Arbitrale were collectively bargained – which further served to underpin its conclusion in
the case at hand.
121. In view of all the above, the Chamber concluded that, based on the evidence and
submissions on file, the Collegio Arbitrale meets the requirements of a fair and equal
arbitral tribunal for the purposes of art. 22 par. 1 lit. b).
122. Therefore, the Chamber established that the Respondent’s objection to the competence of
FIFA to deal with the present matter is accepted and that it is not competent, on the basis
of art. 22 par. 1 lit. b) of the Regulations, to consider the present matter as to the substance.
b. Costs
123. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
124. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
125. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 18
REF. FPSD-10809
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant,
Abdoulaye Touré.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 19
REF. FPSD-10809
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 20