Five top tips to help understand the FIFA Appeal Committee and its proceduresAriel Reck
The FIFA Appeal Committee (AC), gets usually less attention than the FIFA Dispute Resolution Chamber or the Players' Status Committee since it is competent for disciplinary cases only, that hardly make the headlines. But recent cases like the Barcelona transfer ban or the Suarez affair putted the organ into the spotlight.
Therefore here are five useful tips to help you understand its jurisdiction and procedure.
The AC is one of FIFA´s “judicial bodies”1 together with the Disciplinary Committee and the Ethics Committee. It is composed by a chairman, a deputy chairman and 12 members. The AC shall pass its decisions with at least three members, except for exceptional cases where the chairman may rule alone. Members are appointed by the Executive Committee for a period of 8 years and only the chairman shall have legal qualifications (art.81 of the FIFA Disciplinary Code2 “FDC”).
According to article 85 of the FDC the Committee is independent and shall not receive instructions from any other FIFA body. The FDC imposes strict limitations in relation to participation in the decision-making process. Members of the AC must decline to participate in a case if there are serious grounds for questioning their impartiality. For example:
“if the member in question has a direct interest in the outcome of the matter; if he is associated with any of the parties; if he has the same nationality as the party implicated (the association, club, official, player etc.) orif he has already dealt with the case under different circumstances.” - art.87 FDC
The AC has jurisdiction for any decision passed by the Disciplinary Committee, except for “small” measures like warnings, reprimands, suspensions for fewer than three matches or of up to two months, fines of up to CHF 15,000 imposed on an association or club or up to CHF 7,500 in other cases and sanctions derived from the failure to respect FIFA or TAS/CAS decisions, as provided for in art. 64 of the FDC which are directly appealable to TAS/CAS.
There is a loophole in relation to small fines. Because of its pecuniary nature, they are appealable to TAS/CAS irrespective of their amount (art.67 of the FIFA Statutes) and an appeal to TAS/CAS is in principle cheaper than an appeal to the AC (CHF 1.000 vs CHF 3.000).
According to arts 119.1 & 119.2 of the FDC anyone who has been a party to the proceedings before first instance and has a legally protected interest justifying amendment or cancellation of the decision may lodge an appeal; Associations may appeal against decisions sanctioning their players, officials or members if they have the written agreement of the person concerned.
The Suarez case3 raises an interesting issue in relation to this matter and whether the requirements (being party in the first instance procedure and having a protected interest in the cancellation of the decision) are cumulative or not. FC Barcelona was not part of the FIFA disciplinary procedure but was subsequently admitted as a party before CAS.
A party intending to appeal must inform the AC of its intention within three days of notification of the decision and the grounds for the appeal must then be given within a further time limit of seven days. Before the expiry of this second time limit an appeal fee of CHF 3,000 shall be paid to FIFA (art.123). This amount will be reimbursed only if the appeal is upheld.
As to the procedure, the rules are similar to the ones governing the procedure before the FIFA Disciplinary Committee: Ample scope of evidence admitted, the burden of proof rests on FIFA and the decisions are taken on the basis of the “personal convictions” of the members of the deciding body (CAS case law has equated that notion to the concept of “comfortable satisfaction”4). While in theory oral statements are extraordinary, in practice the AC has held hearings several times5. Oral statements are always heard behind closed doors. Decisions taken by the AC are final except for a subsequent appeal to TAS/CAS (art.126).
In its decisions, the AC applies the doctrine of reformatio in peius, so decisions may not be amended to the detriment of the appealing party (art.125.3 FDC). As to the results, the rate of confirmation of first instance decision is amazingly high. Considering that appeals have no suspensive effect, the utility of the body (for the appellants) is in my opinion debatable: most of the sanctions will be served before the case reaches the CAS for an independent review.
Suspensive Effect / Provisionally measures
According to art.124.2 of the FDC the appeal does not have a suspensive effect except with regard to orders to pay a sum of money. This means that any sanction pronounced by the first instance body will stand and apply during the appeal procedure.
Moreover art.129 of the FDC related to provisional measures seems to be applicable only for the procedure before the Disciplinary Committee and not the AC and the maximum duration of a provisional measure is 50 days (art.132 FCD). In general, this situation puts the appellant in a difficult position since he will have to serve part of the sanction even if it is later annulled by the AC with no remedy for the time already served. As an exception, in the Suarez-bite incident, the lack of a suspensive effect was in the benefit of the Uruguayan, since he served almost half of the 4-months ban during an out of competition period.
While these articles seem to offer no escape from an immediate execution of any disciplinary decision taken by the first instance bodies, the AC took a new approach in the Barcelona case6 and the “Bridge transfer” case7, where the president of the AC decided to grant both appeals suspensive effect over the execution of the sanction (in both cases a transfer ban) to ensure that proper and adequate appeal proceedings can take place and, at the same time, that all rights of the club will be respected. While this seems to be a new approach in the benefit of the appellant´s right of defense, a direct appeal to CAS would be in my opinion a better option (see for example the recent case of Portugal´s new coach Fernando Santos and the way CAS is dealing with it8).
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About the Author
Ariel is a lawyer in Argentina focused exclusively on the sports sector, mainly the football industry. He has particular experience advising on third party player ownership issues, player´s transfers and international sports disputes before FIFA and CAS. He has also spoken at conferences on these issues in Argentina and at international level.