Lack of standing to be a party and of active legitimation of a complainant in an internal association disciplinary procedure; dismissal of the appeal against the CAS award

Facts

The appellants are [A.] , a football player from [U.] (appellant 1), and the football players' union [B.] (appellant 2), which has been a member of FIFPRO since 2011. The respondent is FIFA, an association under Swiss law with its seat in Zurich.

On 9 December 2016, the emergency committee of the national football association of [U.] (nFA) changed the composition of the nFA National Dispute Resolution Chamber (nFA NDRC), dismissed the previous arbitrators and appointed new arbitrators selected by the association. FIFPRO objected to this on 14 December 2016. On 7 February 2017, a meeting took place with the participation of UEFA, ECA, European Leagues, FIFPRO, nFA and interest groups, at which the distribution of the six vacant arbitrator positions among players and clubs was agreed. The players' union [B.] then nominated three persons for the new list of arbitrators, including [C.] .

On 15 August 2018, [C.] , sitting as sole arbitrator of the nFA NDRC, decided that the termination of the employment contract by the player [A.] vis-à-vis the club [D.] was admissible. On 3 September 2018, the President of the nFA NDRC ordered a review. On 4 September 2018, a new body declared the decision null and void and scheduled a new main hearing; on 14 September 2018, it decided that the player had not validly terminated the contract. The player, whose registration with the new club was not approved, became unemployed. On 2 November 2018, the emergency committee dismissed [C.] .

On 29 March and 9 December 2019, FIFPRO and the appellants lodged complaints with the FIFA Disciplinary Committee and requested disciplinary proceedings against the national football association. On 7 February 2020, FIFA notified that FIFPRO, as complainant, was not a party to the proceedings and that there was no active legitimation. On 26 March 2020, the Disciplinary Committee opened proceedings against the nFA, which were concluded on 4 May 2020. The appellants were not informed, as they were not considered parties. A request for reasons was rejected on 20 July 2020.

The appellants filed appeals with the CAS for denial of justice (CAS 2020/A/6921 and CAS 2020/A/2797, later joined). By award of 4 October 2021, the CAS dismissed the appeals. It held that party status and active legitimation were held only by holders of the disputed right who are directly affected; under the association's rules, there was no entitlement to the sanctioning of members. The appellants therefore lacked active legitimation.

By way of civil law appeal, the appellants requested that the arbitral award be set aside, that party status in the disciplinary proceedings or legitimation under Art. 47 CAS Code be granted; in the alternative, remittal to the arbitral tribunal. They also requested the production of the files and a public hearing. FIFA requested dismissal.

Considerations

The appeal concerns international arbitration with its seat in Lausanne; the civil law appeal is admissible under Art. 77 para. 1 lit. a FSCA in conjunction with Art. 190-192 PILA, as the appellants had their domicile or seat outside Switzerland (Art. 176 PILA). The appeal is in principle cassatory; reformatory requests are inadmissible, whereas the alternative request for annulment and remittal is admissible. The Federal Supreme Court examines only complaints raised in due form and time; appellatory criticism is inadmissible and the arbitral tribunal's findings of fact are binding (Art. 77 para. 3, Art. 105 para. 1 FSCA). The reply may not be used to supplement the appeal.

The request for a public hearing of the parties is dismissed, as there is no overriding obligation (Art. 30 para. 3 Cst., Art. 6 ECHR, Art. 14 UN Covenant II) and the appeal concerns highly technical legal questions without examination of the facts (Art. 57 FSCA); the conditions for an oral deliberation (Art. 58 para. 1 FSCA) are also absent.

A direct complaint of violation of the ECHR is inadmissible; the principles of Art. 6 ECHR may only serve to concretise the guarantees under Art. 190 para. 2 PILA. Art. 6 no. 1 ECHR does not apply in this case, as the appellants are affected neither in civil claims nor in a criminal charge. They are mere complainants with no entitlement to the opening of disciplinary proceedings and are not directly affected by any sanction (BGE 146 III 358 consid. 4.2).

The complaint of violation of the right to be heard (Art. 190 para. 2 lit. d PILA) fails. The right to be heard does not include an entitlement to reasons or to a materially correct decision; the arbitral tribunal must only examine questions material to the decision and may not disregard relevant submissions through oversight (BGE 134 III 186 consid. 6.1; 142 III 360 consid. 4.1.1). The CAS set out the relevant case law on active legitimation and took into account the financial interests of appellant 1 and the…