The case involves a legal dispute between Hertha BSC GmbH & Co KgaA (the Club) and the Football Association of Serbia (FAS) regarding the release of player Gojko Kacar for the 2008 Beijing Olympic Games. The Club argued it was not obligated to release Kacar, a Serbian national under 23, citing contractual obligations and potential breaches. FIFA's Circular 1153, issued on July 23, 2008, clarified that clubs were traditionally expected to release under-23 players for the Olympics, though this was not explicitly included in the international match calendar. Despite the Club's warnings, Kacar joined the Serbian national team. FIFA’s Emergency Committee later reaffirmed the obligation for clubs to release under-23 players, citing longstanding practice. However, a separate CAS ruling involving other clubs determined there was no legal obligation to release certain players for the Olympics. The Club proposed a conditional release of Kacar to FAS, which went unanswered, leading the Club to file a claim with FIFA on August 11, 2008.
The key legal issue was whether FIFA’s communications constituted appealable decisions. The CAS panel ruled that a decision depends on whether it unilaterally affects legal rights, not its form. A purely informative letter without prejudicing future decisions does not qualify as an appealable decision. However, a refusal to act or a delay could amount to a denial of justice, making it appealable. The panel emphasized that FIFA’s letters, while not formal decisions, must not preclude future actions.
Hertha BSC later appealed to CAS, seeking to annul FIFA’s decision and demanding sanctions and compensation. FAS opposed the appeal, arguing it had not violated any regulations and that the Club had no contractual relationship with FAS to justify the dispute. FIFA clarified that its initial letter was administrative and not an official decision, implying the appeal might be inadmissible. The CAS Panel examined the admissibility, referencing Article R58 of the CAS Code and Article 62.2 of the FIFA Statutes, which designate FIFA rules and Swiss law as applicable. The Panel concluded that the FIFA letter was purely informative, lacking binding legal effects, and thus not appealable.
The case highlights the tension between clubs and national associations over player releases for international tournaments and the legal complexities surrounding contractual obligations. It underscores the importance of distinguishing between formal decisions and informal communications in sports arbitration. The Panel’s analysis demonstrates that only communications with binding legal effects qualify as appealable decisions, and administrative letters without such intent do not meet this criterion. Ultimately, the CAS ruled the appeal inadmissible, dismissing all other requests for relief and removing the case from the CAS roll. The decision clarifies the procedural steps required for seeking redress within FIFA’s framework and the boundaries of appealable decisions in sports arbitration.