Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2014/A/3776 Gibraltar Football Association (GFA) v. Fédération Internationale de Football Association (FIFA), award of 27 April 2016 Panel: Prof. Massimo Coccia (Italy), President; Prof. Jan Paulsson (France); Mr Bernhard Welten (Switzerland) Football Membership of an international federation FIFA’s supreme regulatory authority and obligation to respect general principles of law CAS jurisdiction to hear a dispute over a FIFA ExCo decision regarding an applicant for FIFA membership Application of the principle of non-retroactivity in non-disciplinary cases Principle of procedural fairness and admission of clubs or athletes to competitions Criteria for applying mandatory rules according to Article 19 Swiss PILA Prohibition of the retroactive application of membership criteria by a sports governing body Concept of “nation” or “country” in the sports environment and difference from its political meaning Limits in the autonomy of a sports association Membership to UEFA and non-admission to FIFA Difference between an exclusion from a single FIFA competition and a permanent exclusion from all FIFA competitions 1. The special power that FIFA holds as the supreme regulatory authority within its sport is accompanied by special responsibility. Albeit being a private body, FIFA must thus respect general principles of law and, in particular, those that generally bind legislators and public administrations. Among such principles of law, the non-retroactivity of laws and rules, procedural fairness, and good faith figure prominently. 2. Satisfying solely Article 67, para. 1 of the 2014 FIFA Statutes is insufficient in and of itself for establishing CAS jurisdiction to hear a dispute over a final decision of the FIFA Executive Committee. Article 67, para. 1 of the 2014 FIFA Statutes cannot be read in isolation, but rather in conjunction with Article 66 of the 2014 FIFA Statutes, which limits the class of individuals and entities entitled to submit disputes to CAS to “FIFA, Members, Confederations, Leagues, Clubs, Players, Officials, licensed match agents and players’ agents”. Given this limitation, an applicant for FIFA membership is not entitled to rely on Article 66 and 67 of the 2014 FIFA Statutes in order to base CAS jurisdiction. 3. FIFA has an established practice of avoiding the retrospective application of its substantive regulations in non-disciplinary settings, such as in matters related to the status and transfer of players. Also, the principle of non-retroactivity has been applied consistently in decisions of the FIFA Dispute Resolution Chamber and the FIFA Players’ Status Committee to disallow the retrospective application of substantive rules. 4. The principle of procedural fairness has consistently been applied in CAS arbitration, and particularly so in relation to disputes concerning the admission of clubs or athletes CAS 2014/A/3776 2 GFA v. FIFA, award of 27 April 2016 to competitions: “under CAS jurisprudence the principle of procedural fairness is surely among the unwritten principles of sports law to be complied with by international federations. Procedural fairness in the relationships between sports institutions and those subject to their authority – particularly in the realm of eligibility for and access to competitions – is one of the most important principles of lex sportiva, if not the most important one”. 5. Article 19 PILA provides that a mandatory rule of a law different from the lex causae may be taken into account if the dispute presents a close connection with that law. In order to apply EU rules of law, a CAS panel adjudicating an international dispute must verify that the three conditions set forth by Article 19 LDIP are met: (i) the EU rules in question belong to that special category of norms which call for application irrespective of the law applicable to the merits of the case; (ii) there is a close connection between the subject matter of the dispute and the EU territory; and (iii) from the point of view of Swiss legal theory and practice, the invoked EU rules aim to protect legitimate interests and crucial values and their application allows a just decision. 6. The retroactive application of membership criteria by a sports governing organization with supreme regulatory authority would cause said criteria to be meaningless, as the organization could simply alter the rules to exclude a particular applicant and would also violate the principle of procedural fairness. In this regard, it must be especially considered that, in essence, admission as a member of an international federation is the only gateway for a national federation (and its athletes and teams) to gain access to competitions at world level. 7. According to CAS jurisprudence, the concept of “nation” or “country” in the sports environment may have a different meaning than in the usual language and may not necessarily be understood within its common political meaning. 8. The autonomy of an association under Swiss law is not unlimited. The autonomy may further be restricted where the relevant association holds a dominant position and exercises monopolistic powers. Under such a case, an admission can be refused to an applicant only if there is a justifiable ground for doing so. The restrictions placed on an association’s autonomy of association are based on the legal protection of personality rights, of good faith and against anti-competitive agreements and abuse of a dominant position. 9. The fact that national federation has access, as a member of UEFA, to football activities and competitions throughout Europe, does not mean that the federation’s personality rights are not infringed by non-admission to FIFA, not least due to the differences in the sporting and economic activities at the different levels. 10. A total and permanent exclusion of a federation from all FIFA competitions is different from an exclusion from a single isolated FIFA competition, much like a player under a life ban would be perpetually unable to compete in any kind of world-level competition. CAS 2014/A/3776 3 GFA v. FIFA, award of 27 April 2016 I. INTRODUCTION 1. The Gibraltar Football Association brings this appeals arbitration proceeding against FIFA, challenging a decision of the FIFA Executive Committee dated 26 September 2014 rejecting the Gibraltar Football Association’s application for FIFA membership and refusing to forward it to the FIFA Congress. The Gibraltar Football Association is currently a UEFA member, having been granted full UEFA membership in 2013 following several years of legal conflict with UEFA and three awards of the Court of Arbitration for Sport (“CAS”) in favour of the Gibraltar Football Association. 2. The territory of Gibraltar is located in the southern part of the Iberian Peninsula at the entrance of the Mediterranean Sea. Under the laws of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom” or “UK”), Gibraltar constitutes a British Overseas Territory, that is, a territory under the jurisdiction and sovereignty of the United Kingdom, but not part of it. Gibraltar’s inhabitants have UK citizenship. II. THE PARTIES 3. The Gibraltar Football Association (hereinafter the “Appellant” or “GFA”), established in 1895, is the football governing body in Gibraltar. The GFA is formally and substantially independent of any other association, whether within Gibraltar or elsewhere. 4. The Fédération Internationale de Football Association (hereinafter the “Respondent” or “FIFA”) is the international governing body of football, headquartered in Zurich, Switzerland. III. FACTUAL BACKGROUND 5. This section of the award sets out a brief summary of the main relevant facts, as established by the Parties’ written submissions, the CAS file, and the evidence given in the course of the hearing that took place on 21 May 2015. Additional facts are set out, where material, in other parts of this award. A. The GFA’s first application for FIFA membership in 1991 6. On 21 March 1991, GFA submitted an application to FIFA seeking FIFA membership. After receiving the application, by letter of 28 March 1991 FIFA asked the Football Association of England (hereinafter the “FA”) and the Football Association of Spain (the Real Federación Española de Fútbol, hereinafter the “RFEF”) for their views on GFA’s application “in view of the particular status of the territory of Gibraltar” and of the fact that both associations are “entities directly involved in this matter”. 7. On 3 April 1991, the Minister for Sport of Gibraltar, having received from GFA a copy of the letter of 28 March 2011, wrote to FIFA that “there is no question as to the particular status of the territory of Gibraltar. It is a dependent territory of the United Kingdom and the Constitution of Gibraltar clearly states that it will continue to be so unless the people of Gibraltar freely and democratically choose CAS 2014/A/3776 4 GFA v. FIFA, award of 27 April 2016 otherwise…. We can understand your approach to the Football Association in London, but the fact remains that Spain is our neighbour, as is Portugal”. 8. In response, the then FIFA Secretary General, Mr Joseph Blatter, explained that “when asking to have the viewpoints of two of its affiliated National Associations, FIFA clearly chose to deal with the matter on a sporting and not political basis”. 9. On 16 December 1991, the FIFA Executive Committee declined to forward GFA’s application to the FIFA Congress and rejected its application for membership (hereinafter also the “1991 FIFA Decision”), because inter alia Gibraltar “is dependent upon the United Kingdom” and “has virtually no autonomy” and “with regard to the extremely special nature of [Gibraltar’s] territory’s geographical and political position, accepting its independence on sporting grounds would set important precedents for our organisation that would be contrary to the consistent policy of FIFA in such matters”. 10. It is disputed whether GFA accepted the 1991 FIFA Decision.