CAS 2023 A 9730
CAS · Football (FIFA / CAS) · Switzerland · 22 Apr 2024
Why it matters
This case is significant for clarifying the scope of the Court of Arbitration for Sport's (CAS) de novo review power in appeals against FIFA decisions. It demonstrates that CAS can admit and consider evidence not properly submitted at the initial FIFA instance, even if the appellant was negligent. This upholds the principle that CAS aims for substantive justice, balancing strict procedural compliance with the actual intent of the parties, especially when a waiver of a claim is clearly established, impacting the financial obligations of clubs in international football transfers.
Summary
In this case, FK Erzeni, an Albanian football club, appealed a decision by the FIFA General Secretariat that ordered it to pay EUR 114,575.34 in training compensation to FC 2Korriku, a Kosovan club, for the transfer of player Sheki Aliti. The dispute arose because FK Erzeni had uploaded a waiver from FC 2Korriku, stating it would not claim training compensation, but failed to provide a translation of this document into one of FIFA's official languages (English, French, or Spanish) within the given deadline. FIFA, applying its FIFA Clearing House Regulations (FCHR) strictly, disregarded the untranslated waiver and issued its determination for payment. FK Erzeni appealed to the Court of Arbitration for Sport (CAS), arguing that FC 2Korriku had indeed waived its right to compensation, and that the delay in translation was justified due to communication issues and the club's limited resources. FIFA maintained that its strict application of the FCHR was necessary for the integrity and efficiency of the transfer system and the FIFA Clearing House. The Sole Arbitrator at CAS acknowledged that FK Erzeni had been negligent in not providing the translation on time. However, applying the CAS Code of Sports-related Arbitration, particularly the principle of de novo review (Article R57), the Arbitrator decided to admit the translated waiver as evidence, even though it was not properly submitted to FIFA initially. The Arbitrator reasoned that justice would be better served by considering all available evidence, especially since the waiver's authenticity was not disputed and it clearly showed FC 2Korriku's intent to waive the compensation. Consequently, CAS upheld FK Erzeni's appeal and set aside FIFA's original determination, meaning FK Erzeni was not required to pay the training compensation. The costs of the arbitration were split 50/50 between FK Erzeni and FIFA, with each party bearing its own legal fees. This decision underscores CAS's role in ensuring substantive justice, even when procedural missteps occur at the initial administrative level.
The detail
Parties: FK Erzeni v. FC 2Korriku & FIFA
Case number: CAS 2023 A 9730
Outcome: The appeal filed by FK Erzeni was upheld, and the FIFA General Secretariat's determination requiring training compensation from FK Erzeni was set aside.
Quantum: No training compensation ordered
Applicable law: FIFA Statutes (Article 57(1), 56(2)), FIFA Clearing House Regulations (FCHR) (Article 10.5 lit. b, 10.7, 18), CAS Code of Sports-related Arbitration (Articles R47, R49, R57, R58, R64.4, R64.5), Swiss law (subsidiary).
Issues in play: The core conflict was between FIFA's strict application of its Clearing House Regulations (FCHR), which required a timely translation of a waiver for training compensation, and the Court of Arbitration for Sport's (CAS) de novo review principle, allowing it to consider new evidence (the translated waiver) not properly submitted at the FIFA level. The case highlighted the tension between procedural strictness for system integrity and the pursuit of substantive justice.
Read the full decision at Court of Arbitration for Sport (football, via FIFA) ↗
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