The case involves a dispute between RCD Mallorca, a Spanish football club, and The Football Association (FA) along with Newcastle United, an English football club, concerning the transfer of an Argentinean player. The Court of Arbitration for Sport (CAS) addressed several key issues, including lis pendens, the acceptance of amicus briefs, standing to be sued, and the application of Article 75 of the Swiss Civil Code (CC). The CAS panel, composed of Prof. Ulrich Haas, Mr. José Juan Pintó, and Mr. Mark Hovell, ruled on these matters in their award dated 24 April 2009. The panel clarified that lis pendens, under Article 186(1bis) of the Swiss Private International Law Act, does not apply if the proceedings before national courts and the CAS do not share the same subject matter. Even if they do, the CAS panel would need "considerable reasons" to suspend its proceedings. Regarding amicus briefs, the panel noted that while such submissions can provide valuable perspectives, the CAS Code does not explicitly grant panels the power to accept them without party consent.
The factual background of the case involves RCD Mallorca's employment contract with the player, set to expire in 2010. The player sought to terminate the contract and join Newcastle United in 2008. RCD Mallorca initiated legal proceedings in Spanish courts and later extended the claim to include Newcastle United. The FA requested an International Transfer Certificate (ITC) for the player from the Spanish Football Federation (RFEF), which did not respond, leading FIFA to intervene. A Single Judge of the FIFA Players' Status Committee authorized the player's provisional registration with Newcastle United, noting that RCD Mallorca appeared more interested in financial compensation than retaining the player. The judge also clarified that while Spanish courts could address the contractual dispute, FIFA retained jurisdiction over ITC matters.
RCD Mallorca appealed the decision to CAS, naming Newcastle United and the FA as respondents. The FA requested to be dismissed from the proceedings, as it had no active role, but the appellant insisted on its involvement due to its role in the FIFA process. FIFA initially declined to intervene but later submitted an amicus curiae brief, which the CAS Panel ultimately decided not to include in the official file. The appellant objected to FIFA's participation unless it formally joined as a respondent, while Newcastle United accepted FIFA's brief as supplementary to its arguments. The CAS Panel confirmed its jurisdiction under Article R47 of the CAS Code, noting that FIFA's statutes allowed appeals to CAS and that internal remedies had been exhausted. The Panel also addressed the issue of lis pendens, dismissing the Appellant's claim that concurrent proceedings in Spanish courts involved the same subject matter.
The Panel examined the role of amicus curiae briefs in arbitration proceedings, noting their prevalence in common law systems and certain international contexts but their rarity in civil law traditions. It emphasized that the CAS Code does not explicitly authorize panels to accept unsolicited amicus submissions without party consent. The Panel rejected FIFA's amicus brief, as the dispute lacked the requisite public interest. The Panel also addressed the appellant's request for a declaratory judgment, interpreting it as a challenge to a prior decision by a Single Judge rather than a standalone claim.
Regarding applicable law, the Panel noted that Article 187 of the Swiss Private International Law Act (PILA) allows arbitration tribunals to rule based on the law chosen by the parties or, absent such a choice, the law most closely connected to the dispute. The parties agreed to arbitration under the CAS Code, which includes conflict-of-law rules under Article R58. This provision directs the panel to apply the relevant regulations (here, FIFA's rules) and, subsidiarily, Swiss law. The appellant argued for the application of Spanish law, but the Panel rejected this, as FIFA's regulations did not support it.
The Panel concluded that the issuance of a provisional player registration (ITC) by FIFA concerns the relationship between FIFA and its member federations, not inter-club disputes. FIFA’s role in this process is administrative, not judicial, and its decisions affect member rights under Article 75 CC. The Panel determined that neither the FA nor Newcastle United had standing to be sued regarding the Appellant's primary request, leading to the dismissal of the appeal. The secondary relief sought by the Appellant was also dismissed, as the motion to amend or supplement an administrative decision