The “round leather game”, as fondly called, used to be a mere recreational activity which attracted some rewards by the way. However, over the last three decades or so, the commercial value of sports, particularly football, has grown astronomically. The increase in its commercial value has occasioned a reciprocal increase in disputes between persons involved in the game; from coaches, to clubs, to players, etc.
The world’s football governing body, FIFA, is not oblivious of these development, hence why it has dispute resolution mechanisms put in place, in fulfillment of its Article 5(2) FIFA Statutes which says:
“ FIFA shall provide the necessary institutional means to resolve any dispute that may arise between or among member associations, confederations, clubs, officials and players.”
These dispute resolution mechanisms put in place include the Players’ Status Committee (PSC); the Dispute Resolution Chamber (DRC), established in 2001; as well as the recognition of the Court of Arbitration for Sports (CAS) as the body with appellate jurisdiction under Article 57 of the FIFA Statutes.
It is noteworthy that the jurisdiction of FIFA on disputes (delegated to its PSC & DRC) is clearly spelt out in Article 22 of the Regulations on the Status and Transfer of Players (RSTP) 2018. This minimizes contentions on what subject-matters that the football body has jurisdiction over. The subject-matters include: employment-related disputes (of an international dimension) between a club and player or coach; disputes between clubs relating to training compensations and solidarity mechanisms; disputes relating to ICT requests, etc.
In order to ensure smooth administration of justice by its dispute resolution mechanisms, FIFA also enacted the “Rules Governing the Procedures of the Players’ Status Committee and the Disputes Resolution Chamber”, which helps to guide the proceedings before the PSC and the DRC. One of such procedural guidelines is its Article 6 (1) which provides that parties before the decision-making bodies of FIFA shall only be member associations of FIFA, clubs, players, coaches, or licensed match agents.
A superficial look at that provision seems apt and tidy; considering the fact that FIFA is a sports body; so parties before it would be expected to be sportspersons alone. However, it is my view that a rigid application of that provision without considering the peculiar circumstances of each case would dish out injustice, as it already did in the Decision of the Single Judge of the PSC No 09141090, dated 23rd September 2014 (view here).
In that case, the Claimant (a Coach) filed a claim against his employer (a football club) for breach of contract on 4th April 2013, wherein he sought a compensation of USD 1,041,000 with a 5% interest per year. By 21st June 2013, FIFA was informed of the death of the Claimant, and his wife on 16th April 2014, stated that she had “been appointed as his legal heir”, and therefore, requested FIFA “to proceed with the case”. FIFA warned that she could not be a competent party before it, but the wife of the late coach insisted that the case be proceeded with. Consequently, FIFA proceeded to give a decision wherein it renounced jurisdiction based on the provision of Article 6(1) of the Procedural Rules, and the claim declared inadmissible.
It is my view that the above decision of the PSC is nothing but a slaughter of justice on the altar of technicality. Although the Committee was perhaps wary of acting contrary to its laid down procedural rules; however, I firmly argue that the Committee should still not have slavishly followed that provision when it was obvious that such would amount to grievous injustice – the deceased’s Claim of over a million US dollars thrown out. The decision of the PSC made me wonder what steps the wife of the deceased Claimant was expected to take, especially where the employment contract must have stipulated that FIFA shall have jurisdiction over the dispute, and/or the likelihood that there was a lack of an independent national arbitration Tribunal in his country of employment– which perhaps explains why the Claim was filed before FIFA in the first place.
The above provision and decision are more surprising because it is common procedural practice amongst various justice systems around the world (including Nigeria) to allow a party who dies during a pending action to be substituted by his/her next-of-kin, or by the appointed Executor(s) or Administrator(s) of the deceased’s estate, if the cause of action is such that can survive the deceased party (as in the above case). For instance, the 2017 Rules of the National Industrial Court (the national labour court in Nigeria) at Order 13 Rule 27(1) provides thus:
“No proceedings— (1) shall abate by reason of the death or bankruptcy of any of the parties, if the cause of action survives.”
A similar provision made by FIFA would, in my view, ensure that the dependants of a deceased party who was wronged by his /her employer, enjoy the fruits of the labour of their deceased loved one. In the same vein, if an employer (a club) were the Claimant, and the Defendant (a Player or Coach) passes away during the course of the proceedings, then the decision would also be enforceable against the estate of the deceased, if the cause of action is such that can survive the deceased.
I am of the view that the continued application of Article 6 Para 1 of the Procedural Rules, if not amended, would further cause havoc than good. I have made out this scenario, a kind of breach which is not uncommon in African football:
A footballer gets injured in the course of playing for his club, but the club fails to give him medical care. The player is left with no choice but to stay out of action for 6 months, during which he has to personally cover the cost of his medical treatment. The club fails to neither reimburse him for the medical expenses nor pay his salaries during the period. The club eventually terminates his contract because of the lengthy period of injury and the bleakness of quick recovery. The player files a Claim before FIFA, being a matter of international dimension, but he later dies during the pendency of the proceedings due to injuries not properly attended to and depression.
It is obvious that based on the same provision of Article 6 Para 1 (Supra), that proceeding before FIFA would also become terminated upon the death of the player despite the fact that the club had contributed to the premature demise of the Claimant (player). So how would justice be served if the same persons who the adjudicatory bodies are supposed to protect their rights are being denied fair hearing because of the rigid rule?
At this point, I would like to make reference to the remarkable recent decision of the Supreme Court of Nigeria in Abdullahi v. State (2018) 14 NWLR (Pt. 1639) 272. In that case, the apex court, for the first time, allowed the wife of a deceased Appellant to be substituted in place of the deceased Defendant in a criminal matter because of the estate of the deceased that was at stake; despite the fact that it was not permitted in any enacted law or rules of court. The court, in arriving at its decision, relied on the obiter of Lord Denning in Parker v. Parker (1954) All ER 22 wherein he said:
“If the courts never do anything because it has never been done before, then the law will stand still while the rest of the world moves on.”
So i conclude by challenging FIFA with the same statement of the great Jurist; if it never does anything because it has never been done before, then its Regulations will stand still while the rest of the world moves on – exemplified by the landmark cases of Jean-Marc Bosman (1995), and RFC Seraing (2018); amongst others.
Written by: ‘Tosin Akinyemi