The Court of Arbitration for Sport (CAS) issued an order on August 23, 2005, addressing AS Roma's request for a suspensive effect against a FIFA decision. The case involved provisional measures to prevent irreparable harm, with the panel composed of Olivier Carrard, José Juan Pintó, and François Klein. The panel clarified that it does not act as an appellate body for prior orders unless new facts or evidence emerge after the initial decision, ensuring provisional measures remain effective in urgent situations. AS Roma's new request, filed on August 2, 2005, argued that two players, K. and N., threatened to terminate their contracts if not registered by August 8, 2005, citing potential legal actions against the club. The club also raised concerns about the impartiality of an arbitrator in a prior CAS decision, which it claimed influenced the July 25 ruling. FIFA opposed the request, arguing no factual changes justified revisiting the issue and that AS Roma violated procedural rules.
The CAS panel outlined three criteria for granting provisional measures: the risk of irreparable harm, the likelihood of success in the main appeal, and the balance of interests between the parties. Irreparable harm refers to damage not fully remediable even if the final decision favors the claimant. The panel focused on AS Roma's new factual claims, such as the players' threats and potential legal actions, rather than revisiting criticisms of the Appeals Chamber President's analysis. The decision underscores the limited scope for revisiting provisional measures absent new evidence and the importance of preventing irreparable harm in urgent cases.
The legal framework for provisional measures, including the suspensive effect, aims to maintain the status quo until a final ruling. In public law appeals, granting a suspensive effect depends on the appeal not being obviously without merit and the private interest outweighing the public interest. These criteria align with CAS jurisprudence. The Federal Code of Civil Procedure also allows provisional measures to prevent irreparable harm, with judges assessing plausibility, preliminary legal review, and balancing interests without requiring absolute proof.
AS Roma argued that losing players K. and N. would cause irreparable harm, both in sporting and economic terms, including potential liability for damages and disruptions to transfer plans. Delays in the disciplinary process, such as a canceled flight, exacerbated the situation, leaving insufficient time for resolution before the transfer window closed. The panel acknowledged the interconnected nature of a related pending case (TAS 2005/A/916) and the need for caution in evaluating the likelihood of success. While some arguments were too vague, the panel found AS Roma’s appeal not entirely without merit.
Balancing interests, the panel concluded that the risk of irreparable harm to AS Roma outweighed FIFA’s interest in immediate enforcement. Suspending the recruitment ban for two transfer periods, pending a final decision, safeguarded both parties' interests. If FIFA’s decision was later upheld, it would regain full effect. The CAS granted AS Roma’s request for a provisional suspension of FIFA’s June 2005 decision, ensuring the case could be resolved on its merits without immediate enforcement. The decision highlights the importance of procedural flexibility in urgent cases and the interplay between CAS jurisprudence and broader legal principles.