Appeals before the Court of Arbitration for Sport

There has been enormous speculation regarding a possible appeal [or lack of] by Rangers before the Court of Arbitration for Sport in Lausanne. I have read several statements, as well as reports by the Media. I am concerned that a significant number of these reports has been quite erroneous and to a certain extent untrue. As a result, the fans mainly, have been placed in a rather prejudicial predicament and they feel that there is some kind of a 'fiddle' involved in the process.

Rangers felt the need to explain with a statement today, the reasons as to why they failed to submit an Application before CAS. I read the RFC statement carefully and I have to agree with it. There is, currently, no arbitration clause in the SFA rules, whereby an appeal to CAS could be established. The Judicial Protocol makes it clear that decisions by the SFA's independent Appellate Tribunal are final and binding. This places a restriction on clubs in terms of submitting further appeals to CAS.

In addition, the SFA rules follow closely those of FIFA and UEFA which indicate that matters of national dimension are not capable of an appeal before CAS. This is not a provision that contains ambiguity and it is not open to a different interpretation. 

The SFA provisions, therefore, on appeals to CAS, are in line with the general spirit of FIFA and UEFA provisions, regarding disputes of national dimension.  The purpose of these provisions is not to compel the Arbitral Tribunal and in this case CAS, to admit in all types of disputes that the SFA has jurisdiction to hear. This can also be interpreted from a literal and teleological point of view and even from the jurisdictional system put in place by the SFA.

Confusion could also be created by the argument that there are provisions that oblige national federations to recognise the jurisdiction of CAS. This is true. But CAS jurisdiction is operative ONLY when such jurisdiction is given. The SFA rules do not grant CAS the jurisdiction to hear disputes of natural dimension, as it was explained above. Consequently, CAS cannot hear such disputes as there is no arbitration agreement, between the parties, to this effect.

Further, the Judicial Protocol needs to be read in conjunction with the Articles of Association of the SFA which determine the membership of each club and its ability to participate in national competitions. These two documents establish a 'binding contract' between the clubs and the SFA and also determine their duties and obligations. It follows, therefore, that both parties are obliged to follow the terms and conditions in these two documents.

Finally, caution must be exercised when one reports such delicate issues. Sports law is a legal discipline pretty much under constant development. Some of the principles have been tested whereas other have not. In the present situation, I have had the opportunity to assess these jurisdictional issues before CAS on 4 different appeals in the last two years. I also advised Celtic in the FC Sion matter and discussed the point on jurisdiction, although the facts can be distinguished as the FC Sion matter was a dispute of an international nature. I am well positioned, therefore,  to appreciate these jurisdictional issues, so please accept my arguments here in good faith.

There is no doubt that Rangers had no alternative routes of appeal. I am not examining here whether the Application to the Court of Session was the right thing to do. But in times of pressure, reasoned judgement is not always present. There is, however, one point of certainty and it relates to the RFC's omission to request permission from the SFA to appeal to CAS. The SFA has the power to grant such permission. Consequently, and in the event RFC had requested such permission, a new Arbitration Agreement would have been created and RFC would have been able to file the Appeal to CAS, subject to the CAS Code and its procedural rules. CAS could have also ruled on the appropriate penalties, upon a similar request. It was, therefore, up to RFC to determine its legal strategy and follow it, subject to the correct and appropriate reading of the rules currently in place and the relevant jurisprudence.

We shall wait for the conclusions with great anticipation.

Dr Gregory Ioannidis

4 June 2012