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Background Dispute Resolution Chamber

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The Jurisprudence of the FIFA Dispute Resolution Chamber

Part of the book series: ASSER International Sports Law Series ((ASSER))

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Abstract

As an introduction this chapter first considers the background of the FIFA Dispute Resolution Chamber (“the DRC”). Subsequently, FIFA’s Regulations on the Status and Transfer of Players (“the RSTP”), its history and its various editions as from 2001 will be given attention. When taking decisions, the DRC applies the RSTP as the main source of law when judging a dispute relating to the international transfer of players, their status and their eligibility to participate in organised football. The RSTP aims to regulate international transfer law when judging a dispute between member associations and to establish legal basic principles that guarantee uniform and equal treatment of all participants in the international professional football world.

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Notes

  1. 1.

    FIFA Statutes, 2016 edition, Article 39 under g.

  2. 2.

    FIFA Statutes, 2016 edition, Article 46 para 2. A further indication that the PSC can be seen as the ‘umbrella organisation’ of the DRC is Article 23 para 3 of the RSTP, 2016 edition, which states that in case of uncertainty as to the jurisdiction of the PSC or the DRC, the chairman of the PSC shall decide which body has jurisdiction. Furthermore, in the first published decisions of the DRC, for example the DRC decision of 21 November 2003, no. 113291, the Chamber was described as ‘The Dispute Resolution Chamber of the Players’ Status Committee’, as the Chamber was also mentioned in the ‘Regulations for the Status and Transfer of Players, 2001 edition’.

  3. 3.

    The DRC is not a ‘standing committee’ of FIFA like the PSC (FIFA Statutes, 2016 edition, Article 21 para 4 in conjunction with Article 39 under g).

  4. 4.

    RSTP, 2016 edition, Article 25 para 6.

  5. 5.

    Furthermore, the RSTP also establishes rules regarding the release of players for association teams and the player’s eligibility to play for such teams. FIFA Commentary, explanation Article 1 para 1, pp. 7–8.

  6. 6.

    FIFA Commentary, explanation Article 1 para 1, p. 8.

  7. 7.

    FIFA Commentary, explanation Article 1 para 2, p. 8.

  8. 8.

    As a side-note, since the 2008 edition, the regulations are called ‘FIFA Regulations on the Status and Transfer of Players’. The editions before 2008 were called: ‘FIFA Regulations of the Status and Transfer of Players’. In this context, it is therefore called ‘the FIFA Commentary on the Regulations of the Status and Transfer of Players’.

  9. 9.

    RSTP, 2016 edition, Article 29.

  10. 10.

    Van Staveren 2003, p. 226.

  11. 11.

    Case C-415/93 Union Royale Belge des Sociétés de football association ASBL v. Jean-Marc Bosman Royal Club Liègois SA v. Jean-Marc Bosman. SA d’Economic Mixte Sportive de l’Union Sportive du Littoral de Dunkerque, Union Royale Belge des Sociétés de Football Association ASBL, Union des Associations Européennes de Football Union des Association Européennes de Football v. Jean-Marc Bosman [1995] ECR I-4837.

  12. 12.

    Wise and Meyer 1997, pp. 1104–1105.

  13. 13.

    Blanpain 2006, p. 116.

  14. 14.

    Weatherill 2014, pp. 90–91.

  15. 15.

    Weatherill 2014, pp. 91–92.

  16. 16.

    Drolet 2006, p. 66.

  17. 17.

    Weatherill 2014, p. 67.

  18. 18.

    See also Blanpain 2003, p. 98.

  19. 19.

    Weatherill 2005, p. 5.

  20. 20.

    Drolet 2006, p. 67.

  21. 21.

    RSTP, 2001 edition, Article 42 para 1 under b.

  22. 22.

    Procedural Rules for the FIFA Players’ Status Committee dated 21 February 2003 and the Rules Governing the Practice and Procedures of the Dispute Resolution Chamber dated 28 February 2002.

  23. 23.

    Regulations Governing the Application of the Regulations for the Status and Transfer of Players 2001 edition.

  24. 24.

    RSTP, 2005 edition, Article 29 paras 1–2.

  25. 25.

    In a decision by the DRC on 22 July 2004, the DRC clarified that Circulars are an administrative instrument, which—as sources of law within the FIFA legal system—are hierarchically subordinated to the FIFA Regulations. Accordingly, the useful and legitimate aim of Circulars is to implement, detail and interpret the FIFA Regulations. However, the Regulations must remain the main source of law when having to judge a dispute; DRC 22 July 2004, no. 74477. See also the CAS jurisprudence in this regard. In CAS 2004/A/785 T. v. L., award of 30 August 2005, the CAS Panel noted that Circulars are not regulations in a strict legal sense, they reflect the understanding of FIFA and the general practice of the federations and associations belonging to it. The CAS Panel also considered Circulars to be relevant for the interpretation of FIFA regulations. See also CAS 2004/A/594 Hapoel Beer-Sheva v. Real Racing Club de Santander S.A.D., award of 1 March 2005, CAS 2006/A/1018 C.A. River Plate v. Hamburger S.V., award of 10 November 2006, CAS 2004/A/797 Confederação Brasileira de Futbol (CBF) v. Bayer 04 Leverkusen Fussball, award of 25 January 2006, CAS 2009/A/1908 Parma FC S.p.A. v. Manchester United F.C., award of 9 July 2010, CAS 2004/A/593 Football Association of Wales (FAW) v. UEFA, award of 6 July 2004 and CAS 2007/A/1320-1321 Feyenoord Rotterdam v. Clube de Regatas do Flamengo, award of 26 November 2007. Also in the latter case the CAS Panel stated that although Circulars are not regulations in a strict legal sense, they reflect the understanding of FIFA and the general practice of the federations and associations belonging to it. In other words, the Panel also considers Circulars to be relevant for the interpretation of the RSTP. However, in view of the nature of the Circulars, a strictly word-oriented interpretation of the Circulars should not prevail over an intention-oriented interpretation. When interpreting the RSTP, FIFA’s true intention shall be sought without exclusive regard to the literal meaning of the Circulars. The CAS Panel has to interpret the latter according to the requirements of good faith and in line with common usages. Finally, consistent practice within FIFA can help in interpreting how FIFA, as an association, and its direct and indirect members, have understood and applied FIFA Regulations.

  26. 26.

    Drolet 2006, p. 70.

  27. 27.

    FIFA Commentary, explanation Article 1 para 2, p. 9.

  28. 28.

    FIFA Commentary, explanation Article 2 para 1, p. 9.

  29. 29.

    FIFA Commentary, explanation Article 1 para 2, p. 9.

  30. 30.

    FIFA Commentary, explanation Article 1 para 3, p. 9.

  31. 31.

    Comparison of the FIFA Regulations version July 2001 and following Circulars with the FIFA Regulations version December 2004.

  32. 32.

    According to the FIFA Commentary, the new terminology is more appropriate as it reflects the evaluation of professionalism in football over the years. FIFA Commentary, explanation Article 2, p. 10.

  33. 33.

    FIFA Commentary on the Regulations for the Status and Transfer of Players. See also FIFA Circular no. 1075 dated 18 January 2007.

  34. 34.

    FIFA Commentary, General Remarks under 1, p. 4.

  35. 35.

    FIFA Commentary, General Remarks under 2, p. 4.

  36. 36.

    DRC 16 April 2009, no. 49444.

  37. 37.

    See for example, CAS 2008/A/1453 Elkin Soto Jaramillo & FSV Mainz 05 v. CD Once Caldas & FIFA, award of 10 July 2008, CAS 2008/A/1469 CD Once Caldas v. FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008, CAS 2012/A/2908 Panionios GSS FC v. Parná Clube, award of 9 April 2013 and CAS 2012/A/2698 AS Denizlispor Kulübü Dernegi v. Wescley Pina Gonçalves, award of 28 November 2012.

  38. 38.

    CAS 2007/A/1369 O. v. FC Krylia Sovetov Samara, award of 6 March 2008.

  39. 39.

    See also FIFA Circular no. 1075.

  40. 40.

    In CAS 2014/A/3710 Bologna FC 1909 S.p.A. v. FC Barcelona, award of 22 April 2015, the Panel was of the opinion that the FIFA Commentary may not be interpreted in a way that contradicts the clear wording of an Article (para 57).

  41. 41.

    FIFA Commentary, explanation Article 18, p. 54.

  42. 42.

    RSTP, 2008 edition, Article 29 para 2.

  43. 43.

    PSC 24 April 2012, no. 412155.

  44. 44.

    See for example, CAS 2011/A/2653 FC Shakhtar Donetsk v. CPF Karpaty, award of 27 April 2012. With regard to the concept of “economic rights” see among others CAS 2004/A/635 RCD Espanyol de Barcelona v. Club Atletico Vélez Sarsfield, award of 27 January 2005, CAS 2004/A/662 RCD Mallorca v. Club Atletico Lanus, award of 8 March 2005, and CAS 2008/A/1482 Genova C.F.C. v. C.D. Maldonado, award of 9 February 2009.

  45. 45.

    DRC 30 November 2007, no. 117311.

  46. 46.

    DRC 2 November 2007, nos. 117953a and 117953b. See also DRC 27 April 2007, no. 47216, no. 47321 and no. 47408.

  47. 47.

    RSTP, 2009 edition, Article 29 para 2.

  48. 48.

    RSTP, 2009 edition, Article 29.

  49. 49.

    The Rules governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, Article 4, Article 13 para 1 and Article 15 para 1 were amended.

  50. 50.

    It contained an amendment with regard to Article 15 para 1 that was going to contribute to enhanced legal security with regard to decisions notified to the parties without grounds and the applicable deadlines.

  51. 51.

    RSTP, 2009 edition, Article 29.

  52. 52.

    As we will see later on in this book, with regard to the amendment in the 2009 edition of the RSTP, which came into force on 1 October 2009, it is important to stress that the DRC decided that it could not apply the said amendment retroactively, which indirectly follows from CAS 2014/A/3500 FC Hradec Kralove v. Genoa Cricket and Football Club, award of 23 September 2014. In FIFA Circular no. 1437 dated 23 July 2014 this was also confirmed as FIFA referred to the general principle under which a provision could not be applied retroactively. It cannot be left unmentioned that in a more recent case before the CAS, it can be derived indirectly that the said amendment could be applied with retroactive effect; See CAS 2014/A/3652 KRC Genk c. LOSC Lille Métropole, award of 5 June 2015.

  53. 53.

    Via this Circular, FIFA also introduced several amendments to the Rules governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (“Procedural Rules”).

  54. 54.

    See Shoichi 2015. See for example DRC 12 June 2015, no. 0615532, DRC 3 July 2015, no. 07156413, DRC 8 July 2015, no. 0715508, DRC 16 September 2015, no. 0915970, DRC 1 October 2015, nos. 10151062 and 1015648 and DRC 17 August 2015, nos. 0815801 and 0815802, DRC 10 September 2015, no. 0915670, DRC 13 October 2015, no. 10151251, DRC 15 October 2015, no. 10151105, DRC 1 October 2015, no. 1015648 and DRC 1 October 2015, no. 10151062. In the DRC decisions of 27 October 2015, no. 10151248 and DRC 4 February 2016, no. 02161733, the DRC decided that in the event that the amount due to the claimant party was not paid by the respondent party within the stated time limit, the respondent shall be banned from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision.

  55. 55.

    See FIFA Circular no. 1468 dated 23 January 2015.

  56. 56.

    As follows from FIFA Circular no. 1500, the current Annex 6 of the RSTP which governs the Rules for the Status and Transfer of Futsal Players, will continue as Annex 7 of the RSTP with its current wording unchanged as of 1 October 2015.

  57. 57.

    According to FIFA, the new system is closely related to the existing handling of applications in relation to the protection of minors.

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  1. Legal Counsel, Dutch Federation of Professional Football Clubs (FBO), Zeist, The Netherlands

    Frans de Weger

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de Weger, F. (2016). Background Dispute Resolution Chamber. In: The Jurisprudence of the FIFA Dispute Resolution Chamber. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-126-5_1

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  • DOI: https://doi.org/10.1007/978-94-6265-126-5_1

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