The case revolves around a dispute between Turkish football club Besiktas, FIFA, and German club SC Freiburg concerning the transfer of Tunisian player Zoubaier Baya. In July 2001, Besiktas signed Baya after his contract with SC Freiburg expired. While Besiktas claimed no transfer fee was owed, SC Freiburg sought compensation through FIFA’s Special Commission, which ruled in September 2002 that Besiktas must pay €255,645. The decision was communicated to Besiktas with a 30-day payment deadline and a note stating it was final under FIFA’s regulations. Besiktas appealed to the Court of Arbitration for Sport (CAS) in October 2002, arguing no fee was due and seeking to overturn the decision. FIFA contested CAS’s jurisdiction, asserting the decision was final under its 1997 regulations and that CAS lacked authority over disputes involving FIFA and its members unless they arose after November 11, 2002. SC Freiburg supported FIFA’s stance, claiming the Football Arbitration Tribunal (TAF) was the proper forum under FIFA’s statutes.
The CAS panel, applying Swiss law, examined its jurisdiction under Article R27 of the CAS Code, which requires an arbitration agreement, subsequent pact, or sports body statutes providing for CAS appeal. The panel found no special arbitration agreement and noted FIFA’s regulations at the time lacked a CAS arbitration clause. It also determined FIFA’s recognition of CAS jurisdiction, effective from November 11, 2002, did not apply retroactively to the September 2002 decision. The panel concluded CAS lacked jurisdiction, as neither FIFA’s statutes nor regulations provided for CAS arbitration in disputes between FIFA and its members or third parties. The decision emphasized that CAS’s jurisdiction must be explicitly agreed upon or provided for in applicable regulations, which were absent here.
The text further explores the legal implications of arbitration clauses in federation statutes, explaining that such clauses bind those directly linked to the statutes, either as members or through declarations referencing them. For others, the clause serves as an arbitration offer. In this case, neither Besiktas nor SC Freiburg had accepted such a clause. The document clarifies that FIFA’s statutes referred to the TAF, not CAS, and FIFA’s unilateral recognition of CAS jurisdiction applied only to decisions post-November 11, 2002. The contested decision predated this, so no valid arbitration agreement existed. The document suggests FIFA amend its statutes to explicitly recognize CAS to avoid future disputes. Until then, CAS considers itself competent only for post-November 11, 2002 decisions, provided parties appeal within the stipulated timeframe, which constitutes acceptance of the arbitration offer.
Ultimately, the CAS ruled it lacked jurisdiction due to the absence of a valid arbitration agreement and upheld the objections raised by FIFA and SC Freiburg. The decision was rendered without costs, except for a nominal fee paid by each party, with each bearing its own expenses. The document underscores the need for clearer arbitration provisions in FIFA’s statutes to prevent similar jurisdictional conflicts in the future.