CAS 2010/A/2071 - Tribunal Arbitral du Sport / TAS

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CAS 2010/A/2071 IFA v/ FAI, Kearns & FIFA - Page 8 - For the FAI, its Chief Executive Officer, Mr John Delaney, its Honorary Secretary, Mr Michael Cody, its legal advisor, Ms Sarah O’Shea, assisted by Mr Paul Gardiner SC and Mr David Casserly, barristers and Mr Antonio Rigozzi, attorney. - For FIFA, Mr Omar Ongaro, Head of FIFA’s Players’ Status Department and by its legal counsel, Ms Mariana Jönsson. - For Mr Kearns, himself and his attorney, Mr Aidan Healy. 26. At the conclusion of the hearing all parties accepted that their rights before the Panel had been fully respected. The Panel reserved its award, which takes account of all the arguments and material admitted before it. They would wish to pay tribute to the excellence of the advocacy from all parties’ legal representatives. IV. DISCUSSION IV.1 CAS Jurisdiction 27. The jurisdiction of CAS, which is not disputed, derives from Articles 62 ff. of the FIFA Statutes and Article R47 of the Code of Sport-related Arbitration (hereinafter referred to as the “Code”). 28. It follows that the CAS has jurisdiction to decide on the present dispute. 29. Under Article R57 of the Code, the Panel has the full power to review the facts and the law. IV.2 Applicable Law 30. Article R58 of the CAS Code provides the following: “The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sportsrelated body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”. 31. Pursuant to Article 62 par. 2 of the FIFA Statutes, “[t]he 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”. 32. As a result, subject to the primacy of applicable FIFA’s regulations, Swiss law shall apply complementarily.
CAS 2010/A/2071 IFA v. FAI, Kearns & FIFA - Page 9 33. Mr Kearns filed an application before FIFA for a change of association team, from the IFA to the FAI, after 2 August 2009, which is the date when the 2009 edition of the FIFA Statutes came into force. Consequently, the case is to be assessed according to the 2009 edition of the FIFA Statutes and the 2009 Application Regulations. IV.3 Admissibility 34. The IFA asserts that it received the Appealed Decision, dated 4 February 2010, only on 12 February 2010 and the FAI did not take issue with this assertion. The statement of appeal was filed on 2 March 2010 and therefore within 21 days of the IFA receiving notification of the Appealed Decision, consistently with the deadline set out in the FIFA statutes and the decision itself. 35. No further recourse against the Appealed Decisions is available to IFA within the structure of FIFA or the CFA. 36. Accordingly, the appeal was filed in due time and is admissible. IV.4 New Documents 37. On 1 and 16 July 2010, the IFA filed respectively a written statement of Mr Patrick Nelson, dated 1 July 2010, backed up by supporting documents, and a 30 pages long paper entitled “Skeleton argument for the Appellant” accompanied by three “hearing bundles” of various papers. 38. Pursuant to Article R44.1 par. 2, second sentence of the Code, “after the exchange of the written submissions, the parties shall not be authorized to produce further written evidence, except by mutual agreement or if the Panel so permits on the basis of exceptional circumstances”. 39. In its appeal brief, the IFA described the content of the “1950 FIFA Ruling”, but explained that it was not uncertain of the form it took, so was in the process of seeking a copy of the original ruling. 40. The Panel decided to admit into the file some documents, originally submitted as attachments to a written statement of Mr Patrick Nelson dated 1 July 2010. Such documents consisted of excerpts of the FAI’s webpage, exchange of letters between the IFA, the FAI and/or FIFA, and minutes of meetings relating to the football situation in Ireland during the early and middle of the last century, because their production had been foreshadowed in the appeal brief, they constituted best evidence, their authenticity could not be doubted, and no unfairness would be caused to the respondents by their admission. The request to file all the other submissions and documents (Mr Patrick Nelson’s statement itself, the “Skeleton argument for the Appellant” and the three bundles) was denied. While agreed bundles of documents (already annexed to pleadings or witness statements) in chronological (or other rational) sequence and skeleton arguments
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CAS 2010/A/2071 - Tribunal Arbitral du Sport / TAS

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