(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

had stated that his claim had been lodged with FIFA before
the matter was referred to the relevant instance in Israel and
that the aforementioned allegation had not been denied by the
[Player] during the course of this proceeding, as well as taking
into account art. [4.]28 of the Contract which explicitly allowed
the parties to have recourse to FIFA’s decision-making bodies
in case of a dispute between them, the Single Judge decided
that he was competent to decide on the present matter. This
established, the Single Judge recalled that in accordance with the
provisions set out by both the 2001 and 2008 edition of the
FIFA Players’ Agents Regulations, FIFA has jurisdiction
on matters relating to licensed players’ agents, i.e. on those
individuals who hold a valid players’ agent license issued by
the relevant member Association. Consequently, and since the
present matter concerned a dispute between a players’ agent
licensed by the Israel Football Association and a Ghanaian
player, regarding an alleged outstanding commission, the Single
Judge held that he was thus competent to pass a decision in the
case at hand which had an international dimension ”.
On the merits, the Single Judge of the FIFA-PSC
considered that (i) “ he was not satisfi ed that the evidence
provided by the Claimant was suffi cient to corroborate the fact
that his involvement was crucial to the signing of the employment
contract in question” , (ii) “ nor had it been proven that another
agent had been involved in the negotiations leading to the
signature of the employment contract [and] it could therefore
not been concluded that the Respondent had breached any of the
terms of the representation contract ”, and (iii) “t he percentage
of commission due was clearly abusive since it disproportionately
favoured the Claimant to the detriment of the Respondent”.
As a consequence, the Single Judge of the FIFA-PSC
rejected on the merits the Agent’s claim and ordered
him to pay to the Player the costs of the proceedings.
On 7 April 2010, pursuant to Article R47 of the Code
of sports-related arbitration (the “CAS Code”), the
Agent fi led an appeal with the CAS to challenge the
decision adopted by the Single Judge of the FIFA-
PSC on 26 June 2009 and notifi ed with grounds to
the parties on 17 March 2010.
On 12 August 2010, the CAS Court Offi ce
communicated to the parties the Panel’s decision to
grant the Appellant the possibility to comment on
the issues of res judicata and FIFA’s jurisdiction, raised
by the Respondent in his Answer fi led on 1 July 2010.
On 15 October 2010, the CAS Court Offi ce
communicated to the parties the Panel’s decision to
bifurcate the case and to decide on a preliminary basis
the issues of res judicata and FIFA’s jurisdiction. By the
same communication, the parties were also asked to
fi le a further written submission to state their opinion
as to whether the IFA award would be recognizable
or not in Switzerland under Swiss law and the UN
Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 10 June 1958 (the “ New
York Convention ”).
On 31 January 2011, the CAS communicated to the
parties the Panel’s decision to hold a hearing on
the preliminary issues. The hearing took place in
Lausanne on 8 April 2011.
Extracts from the legal fi ndings
A. The preliminary objections raised by
the Respondent
The essence of the Respondent’s preliminary
objections is that the CAS may not entertain the merits
of this case because the same matter has already been
heard and decided by an Israeli arbitral tribunal with
a binding award which has been confi rmed by the
competent Israeli state courts and has thus become
fi nal. It is a typical res judicata exception.
In addition, the Respondent argues that the FIFA
Single Judge erred in hearing and adjudicating the
case because it should have deferred to the Israeli
arbitral tribunal, either because it did not have
jurisdiction in the fi rst place or because, if it did
have a parallel jurisdiction, it should have declined
to render a decision once the Israeli arbitrator had
rendered his award.
The Panel will address the issue of res judicata fi rst
because, should such claim be upheld, there would be
no need to ascertain whether the FIFA Single Judge
had to decline to adjudicate the matter.
As a preliminary consideration, the Panel notes that
it is discussed in the legal literature whether a wellfounded
exception of res judicata implies the lack of
jurisdiction or the inadmissibility of the claim. In
either case, the practical result would be the same,
as the Panel would be prevented from dealing with
the merits of the case. Indeed, in the Final report on res
judicata and arbitration of the International Commercial
Arbitration Committee of the International Law
Association (“ ILA ”), the following can be read: “ In
this respect, the Committee does not express an opinion as to
the question whether preclusive effects of a prior arbitral award
go to jurisdiction or to admissibility. Jurisdictions give different
answers to this question and the Committee prefers to leave this
question to the applicable law. On the other hand, the question
is to a large extent moot since under both characterizations a
preclusion defense is to be raised early in proceedings ” (ILA,
International Commercial Arbitration Committee,
Toronto Conference [2006], para. 68, in www.ila-hq.
org/en/committees/index.cfm/cid/19).
Jurisprudence majeure / Leading cases
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