What began as a punishment by UEFA for FC Sion fielding ineligible players against FC Celtic has now transformed into a dispute that threatens to uproot FC Basel from their hard fought qualification into the next stages of the Champions League and, perhaps, change the relationship of football’s governing bodies with the courts.
The landscape of professional football has not changed so dramatically, nor has it appeared so likely to, since the European Court of Justice handed down Union Royale Belge des Sociétés de Football Association ASBL and Others v Jean-Marc Bosman Case C-415/93 sixteen years ago. What began as a punishment by UEFA for FC Sion fielding ineligible players against FC Celtic has now transformed into a dispute that threatens to uproot FC Basel from their hard-fought qualification into the next stages of the Champions League and, perhaps, change the relationship of football’s governing bodies with the courts.
FIFA found FC Sion guilty of encouraging Essam El Hadary to break a contract with his club, Al-Ahly, and sign with Sion for free. FIFA enforced a transfer ban for two transfer windows as a punishment. Sion appealed against the decision to the Court of Arbitration for Sport (CAS) and the Swiss Federal Court. Both Courts rejected their appeal in June 2010 and January 2011 (two transfer windows, as the suspension indicated).
FC Sion sought approval from FIFA to buy players in the following transfer window (May 2011). FIFA denied the request. FC Sion once again appealed but the this was again rejected by CAS. FC Sion ignored the ban and signed six new players in the summer of 2011 – Pascal Feindouno, Mario Mutsch, Gabri, Jose Goncalves, Stefan Glarner and Billy Ketkeophomphone.
The Swiss FA blocked the moves but the club and the players took action, claiming that such a block violated their rights. Article 22 of the FIFA Regulations for the Status and Transfer of Players (RSTP), regulating the relationship between clubs and professional players, indicates that a player has the right to seek redress before a civil court for employment-related disputes:
Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear:
b) employment-related disputes between a club and a player of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs has been established at national level within the framework of the association and/or a collective bargaining agreement;
The civil court made a provisional injunction authorising said players to play for FC Sion. UEFA warned FC Sion that they would risk disqualification from the Europa League Competition if they used any of the disputed players in their playoff tie against Celtic. FC Sion did not comply. FC Sion fielded the players and went onto beat FC Celtic earning a spot in the Europa League’s group stages.
Soon after FC Celtic launched an appeal to UEFA against FC Sion for fielding ineligible players, and UEFA excluded them from the Europa League. FC Sion appealed twice to UEFA. Both appeals were, unsurprisingly, rejected. FC Sion launched an appeal in a Swiss civil court once again, filing for an injunction against the exclusion, which the court refused. The Swiss court claimed that it was not their responsibility to reverse UEFA’s decision.
FC Sion took their appeal to the Civil Court of Vaux where UEFA’s headquarters are situated. The Vaux court made a provisional injunction and decided that Sion must be reinstated in the Europa League, ordering UEFA to pay FC Sion’s court costs and imposing a daily fine (1,000 Swiss Francs, the maximum penalty) for each day of non-compliance. UEFA refused to obey the court’s orders claiming that they had no chance to make a statement in front of the court.
Can UEFA ignore a decision of the Swiss courts?[/one_fifth] [four_fifth_last]The most significant question that arises out of UEFA’s non-compliance with the decisions of the Vaux court is: can UEFA ignore a decision of the Swiss courts?
The answer is not clear. It will undoubtedly be resolved as a result of the dispute between FC Sion and FIFA, however, at the moment questions are being asked by FC Sion of FIFA and UEFA’s sovereignty. The situation is further complicated by FIFA and UEFA being subject to Swiss law.
The FIFA Statutes, which came into force on 1 August 2011, introduce the basic laws for world football. Article 62 of the FIFA Statutes states:[/four_fifth_last]
1. FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between Members, Confederations, Leagues, clubs, Players, Officials and licensed match agents and players’ agents.
2. The provisions of the CAS Code of Sports-Related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA, and additionally, Swiss law.
Article 64 of the FIFA Statutes states:
2. Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations.
3. The Associations shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes affecting Leagues, members of Leagues, clubs, members of clubs, Players, Officials and other Association Officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration panel recognised under the rules of the Association or Confederation or to CAS.
The Associations shall also ensure that this stipulation is implemented in the Association, if necessary by imposing a binding legal obligation on its members. The Associations shall impose sanctions on any party that fails to respect this obligation and ensure that any appeal against such sanctions shall likewise be strictly submitted to arbitration, and not to ordinary courts of law.
Article 64 of the UEFA Statutes 2010 states:
1. These Statutes shall be governed in all respects by Swiss law.
2. The legal forum shall be the headquarters of UEFA. Lausanne (Switzerland) shall be the legal forum for all cases which, in accordance with these Statutes, come under the jurisdiction of CAS.
If the Swiss Courts rule that FIFA and UEFA acted unlawfully in removing FC Sion from the Europa League then there is a distinct possibility that the entire 2011/2012 Europa League could be invalidated. Both FC Sion and UEFA acted following the decision of the Swiss court and UEFA’s refusal to adhere to it. FC Sion filed a criminal complaint against UEFA, seeking to have UEFA’s benefits under Swiss law removed, because UEFA did not respect Swiss law. UEFA President Michele Platini, on the other hand, fearing that other teams would follow suit in the future and sue UEFA, went to the European Union and asked the European Commission President Durão Barroso to create an exemption for UEFA from civil lawsuits.
UEFA delegated the final decision to CAS, who recently announced their verdict, upholding UEFA’s decision to ban Sion from the Europa League and ordering the latter to pay UEFA 40,000 Swiss Francs for their legal costs. The Swiss club hasn’t given up yet. A representative of FC Sion made the following statement:
The CAS does not offer any guarantee of independence (in particular, how it chooses arbitrators) and violates several standards of national and international law…
The verdict makes stronger our feeling of the servility of the CAS to the powerful football authorities. It confirms our belief that now it becomes urgent to change the functioning of that court, which ultimately is not one…
We are now taking the case in front of Swiss Federal Court (the CAS recognises its authority), and then the European Court…
It does not take much effort to see that FC Sion and its Chairman are not afraid from pursuing legal redress when they feel that the machinery of football government has delivered an unfair decision. This dispute however, has gone beyond whether or not FC Sion have been lawfully excluded from the UEFA Europa League. The feud asks whether, if FIFA and UEFA give an undesirable finding against it, a club can seek redress in the Swiss courts. It also raises the question of how the Swiss courts view UEFA’s dismissal of the Vaux court’s injunction.
FIFA, in response to the the danger that losing the dispute possesses, have threatened to expel Switzerland from FIFA’s football activities if the Swiss FA fail to enforce a transfer ban on FC Sion by 13 January 2012, and have demanded that FC Sion lose all the points earned in games where the ineligible players were fielded. Opponents of FIFA’s President Sepp Blatter have criticised the decision and likened it to a bullying tactic.
The Civil Court of Vaux will announce their decision on FC Sion’s appeal against the forfeit of the games against Celtic and whether or not FC Sion should be reinstated into the Europa League on 11 January 2012. If FIFA do lose the appeal then FIFA’s threat to ban the Swiss FA from football will become more real and put significant pressure onto FC Sion to drop the case altogether.
It is however, essential for FIFA’s sovereignty that they succeed in the dispute, whether that is by coercing the Swiss FA into doing what it wants or hoping that the Swiss courts will uphold its findings and its jurisdiction.
FC Sion has since asked the Swiss FA to appeal against the threat of suspension from 14 January 2012. In the strongest terms FC Sion has come out against FIFA’s threat:
…[FC Sion] believes that…is the responsibility of leaders to defend their Swiss football association, and thus its national teams and clubs all Swiss address this unacceptable blackmail. FC Sion has also warned the leaders of the SFA and SFL they will assume the consequences of their choice if they had to sacrifice the FC Sion to satisfy FIFA. Such a lack of courage demonstrate that they lack the skills to continue to manage the Swiss football.
FC Sion has now filed a criminal complaint against FIFA. A press release from their website states:
The ASF was recently enjoined by FIFA to deliver packages or withdrawals of points against FC Sion. This has threatened the entire Swiss football irreparable harm if the ASF did not come to run from here to 13 January 2011.
FC Sion has now filed a criminal complaint against members of the executive committee of FIFA after the threat to exclude the Helvetic Federation, and also involving the clubs affiliated to it. As the FSA has itself pointed out, the requirements of the FIFA forced to act against its own rules and against the laws of Switzerland. This amounts to an unacceptable blackmail, especially as this, to impose its views, FIFA is at the forefront of the parties completely unrelated to the litigation against FC Sion.
The club can not tolerate Wallis as national teams and clubs in Switzerland and are taken hostage by FIFA, whose decisions are ignoring the most basic legal rules. In criminal terms, the behavior of the FIFA contravenes section 181 of the Swiss Penal Code (coercion).
The complaint was sent to the prosecutor in Zurich. It is directed against anyone who participated or contributed to the decision of the FIFA. It is for the court to determine the role of various stakeholders related to the offense, whether acting officially or in the shade.
The sometimes unpredictable nature of the courts provide no guarantee that this dispute will be disposed of one way or another. It is clear to see that if FC Sion are victorious in their feud then a message would be sent around both Europe and the world, suggesting to football clubs that it is possible to sue UEFA or FIFA in the Swiss Courts and not rely on the CAS if they want a truly impartial hearing and binding decision.
FIFA demanded that the Swiss FA take action against FC Sion and on December 30 2011 the Swiss FA announced a 36 point punishment. The Swiss FA said:
This points deduction is to punish the illegal behaviour of FC Sion, also contrary to the statutes and rules, by illegitimately getting around the transfer ban imposed by Fifa and fielding non-eligible player
The Swiss FA has taken the opening measure in accordance with FIFA’s requests, which FC Sion has condemned as being ‘an intolerable attack on fairness in sport’. FC Sion have criticised in a statement made by the club:
[the decision] comes as no surprise to the club which did not expect any courage on the part of the ASF in the face of FIFA.
It seems unlikely therefore that FIFA will end up banning Switzerland from world football. FIFA have, effectively, won the latest round of the dispute with FC Sion. The Swiss FA, whether they agree with FIFA or not (and there is no evidence to suggest that they do not agree), have sided with FIFA. The football world is awaiting the decision of the Swiss courts to see who will win the dispute and whether the landscape of football administration will change as a result.