(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

another players’ agent (…) operating under the auspices of
the Association [IFA] and which concerns their activities as
players’ agents shall be referred to the Arbitration Institute for
resolution. (…) ”.
“ 14.2 The obligation to refer the dispute to arbitration is
mandatory, and arbitration proceedings shall be conducted in
accordance with all the provisions contained in the Arbitration
Institute’s articles ”.
“ 14.3 Any disagreement or dispute as stated in paragraph 14.1
above concerning an international transfer, shall be adjudicated
by FIFA’s Player’s Status Institute, unless all the parties to
the dispute or disagreement are registered with and/or operate
under the auspices of the Association [IFA], in which case the
matter shall be referred to the [IFA] Arbitration Institute for
determination ”.
The above provisions clearly set forth an arbitration
clause in favour of the IFA Arbitration Institute
when all the parties are registered with the IFA.
As already stated, it is undisputed that at the time
of the dispute both the Player and the Agent were
registered with the IFA. As another CAS panel has
clearly stated, when an individual such as a player or
an agent registers with a national federation “by his
deliberate act of registering, he has contractually agreed to abide
by the statutes and regulations of the [national federation]”
thus pledging to comply with an arbitration clause
included therein (CAS 2007/A/1370-1376, para.
91). This is in line with the established case law of
the Swiss Federal Tribunal, which has considered
the arbitration clauses contained in the statutes of
sports associations to be valid (see e.g. Judgment of
9 January 2009, 4A_460/2008, para. 6.2, and the
previous jurisprudence quoted therein).
Accordingly, the Panel fi nds that both the Appellant
and the Respondent were contractually bound to
arbitrate their dispute before the IFA Arbitrator
appointed in accordance with the rules of the IFA
Arbitration Institute. In other words, the Panel
fi nds that the IFA Arbitrator did have jurisdiction to
entertain the said dispute and adjudicate the parties’
claims. The Panel is comforted in this fi nding by the
fact that both the District Court of Tel Aviv-Jaffa and
the Israeli Supreme Court expressly held that the IFA
Arbitrator lawfully retained his jurisdiction.
The Panel notes that the Appellant also argued that
jurisdiction could not be conferred by the parties
upon the IFA Arbitration Institute because the IFA
Arbitrator’s award could not enjoy the enforcement
mechanism provided by FIFA. The Panel cannot
concur with this argument. First, concerns about the
possibility to enforce a decision do not change the
substance of the provisions which confer jurisdiction.
Second, the IFA Arbitrator’s award, being a normal
arbitral award, is easily enforceable (like any
commercial arbitral award) in any country which is
a party to the New York Convention. Finally, given
that the IFA Arbitration Institute’s jurisdiction is
recognized by FIFA rules, it is possible that FIFA
would provide its mechanisms in aid of enforcement
if so requested.
In conclusion, the Appellant’s submission that the
award is not recognizable in Switzerland because the
IFA Arbitrator had no jurisdiction fails.
D. Possible recognition under Article V, para. 1,
of the New York Convention
Article V, para. 1, of the New York Convention reads
as follows:
“ 1. Recognition and enforcement of the award may be refused,
at the request of the party against whom it is invoked,
only if that party furnishes to the competent authority
where the recognition and enforcement is sought, proof
that:
(a) The parties to the agreement referred to in article II
were, under the law applicable to them, under some
incapacity, or the said agreement is not valid under
the law to which the parties have subjected it or,
failing any indication thereon, under the law of the
country where the award was made; or
(b) The party against whom the award is invoked was
not given proper notice of the appointment of the
arbitrator or of the arbitration proceedings or was
otherwise unable to present his case; or
(c) The award deals with a difference not contemplated
by or not falling within the terms of the submission
to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted
to arbitration can be separated from those not so
submitted, that part of the award which contains
decisions on matters submitted to arbitration may
be recognized and enforced; or
(d) The composition of the arbitral authority or the
arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement,
was not in accordance with the law of the country
where the arbitration took place; or
(e) The award has not yet become binding on the parties,
or has been set aside or suspended by a competent
authority of the country in which, or under the law
of which, that award was made ”.
Jurisprudence majeure / Leading cases
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