ISSUES of Standing before THE COURT OF ARBITRATION FOR SPORT

Massimo Coccia

Law Professor, University of Rome Sapienza, Italy
Founding Partner, Coccia De Angelis & Associati Law Firm
(Rome-Milan, Italy)
CAS Arbitrator

Abstract

This article examines the legal doctrine of standing to sue and to be sued before the Court of Arbitration for Sport (CAS), clarifying distinctions between jurisdictional issues and standing issues, and between formal and substantive standing. The analysis also covers FIFA’s specific standing to be sued, the implications under Swiss law and CAS jurisprudence. Standing issues, although not jurisdictional, are treated as preliminary merits issues in CAS procedures. The article suggests that CAS panels should adopt a liberal approach with regard to the existence of the so-called legal (or legitimate) interest, which should only be denied if the appealing party would have no benefit whatsoever, not even reputational, in obtaining a judgement in its favour. The article also outlines the consequences of a finding of lack of standing and it draws attention to the distinct approaches under Article 75 of the Swiss Civil Code and CAS appeal proceedings.

Keywords

Standing, CAS, jurisdiction, Swiss law, locus standi, arbitration, FIFA, appeals

ISSUES of Standing before THE COURT OF ARBITRATION FOR SPORT

Massimo Coccia

Law Professor, University of Rome Sapienza, Italy
Founding Partner, Coccia De Angelis & Associati Law Firm
(Rome-Milan, Italy)
CAS Arbitrator

Summary: 1. Introduction: standing to sue and to be sued before the CAS. 2. Distinction between CAS appeals and avoidance actions under Article 75 of the Swiss Civil Code. 3. Distinction between formal standing and substantive standing. 4. Formal standing to sue or be sued (legitimatio ad causam) in CAS appeals proceedings. 5. Substantive standing to sue (legal or legitimate interest). 6. Substantive standing to be sued. 7. Mandatory standing to be sued. 8. FIFA’s standing to be sued before the CAS. 9. Concluding remarks.

1. Introduction: standing to sue and to be sued before
the CAS

Anyone acting to be, or summoned to be, a party to any CAS arbitration proceedings must have «standing» (also known as locus standi), i.e., they must be legally entitled to appear before the CAS.

The notion of standing or locus standi is applicable in all CAS arbitration procedures (ordinary, appeal and Olympic) and to both the suing party and the summoned party. Accordingly, a party wishing to bring a case before the CAS must have «standing to sue» («active legitimation» in civil law terminology), and it must summon to the CAS one or more respondents that have standing to be sued («passive legitimation» in civil law terminology).

It is important to point out right away that, under Swiss law, an issue of standing is not an issue of jurisdiction but, rather, an issue that falls within the scope of the merits of the case. This has been clarified by the jurisprudence of the Swiss Federal Tribunal («SFT»): «standing to sue and to be sued in a civil trial relates to the material basis of the action; it belongs to the subject (active or passive) of the right invoked in court».1 CAS panels have followed suit: «the Panel deems convenient to clarify that the issue of the standing to sue indeed refers to the merits of the case».2

In CAS arbitration proceedings the issue of jurisdiction ratione personae can sometimes be confused with the issue of standing, particularly in CAS appeals cases; therefore, one should be careful in distinguishing those legal notions. Indeed, a CAS panel has jurisdiction ratione personae over a given entity or individual, who can thus be allowed or compelled to be a party to the arbitration, if that individual or entity is bound by an arbitration agreement that is also binding for the opposing side. However, a party, even if subject to the jurisdiction ratione personae of the CAS, can in certain circumstances lack standing to sue or to be sued (as will be seen infra); in these situations, the CAS does have jurisdiction but the claim brought by or against that party must be rejected on the merits.

Having spelled out that issues of standing are not jurisdictional and pertain to the merits of the case, a terminological clarification is opportune.

Indeed, issues of standing must definitely be considered as preliminary issues to the merits stricto sensu of the case (i.e., the ultimate substance of a dispute, where the parties’ substantive rights and obligations are determined on the basis of the lex causae, i.e., the law applicable to the merits). Accordingly, when we say that issues of standing pertain to the merits, the term «merits» is to be intended lato sensu (i.e., in a broad sense), as encompassing all those issues that are not jurisdictional.

Unfortunately, there is some terminology confusion in CAS jurisprudence. In particular, it is often repeated in CAS awards that issues of standing are part of the merits; as said, this is absolutely correct if one refers to the merits lato sensu (which includes standing issues), but might become inaccurate if one has in mind the merits stricto sensu (which does not include standing issues). In short, issues of standing, although part of the merits, remain preliminary issues that must be determined by a CAS panel before addressing the merits stricto sensu of a case. Indeed, if either party argues that the other side lacks standing, an arbitral tribunal must logically analyse this matter before dealing with the full merits of the dispute, that is, before determining who is right and who is wrong in terms of the parties’ underlying substantive rights and obligations.

Therefore, if a CAS panel considers prima facie, either sua sponte or because prompted by a party, that there is a relevant problem of standing either to sue or to be sued at stake, which could be dispositive of the case, it might well decide to bifurcate the arbitration proceedings and adjudicate such an issue of standing by means of a preliminary or partial award.

It is also opportune to clarify that, in CAS appeal proceedings, the lack of standing to appeal does not entail the inadmissibility of the appeal but, rather, its rejection on the merits (as a preliminary issue). In particular, there should not be a distinction between an appellant’s initial lack of standing (i.e., when filing the statement of appeal), which would lead to the inadmissibility of the appeal, and a lack of standing befallen during the proceedings, which would lead to the rejection of the appeal on the merits. This is a distinction made by the SFT (i) with respect to its own proceedings and (ii) based on the Swiss Law on the Federal Tribunal,3 and need not, and should not, be applied in CAS proceedings, which have a very different legal nature from that of the SFT proceedings.4

The fact that issues of standing do not pertain to jurisdiction, but are to be examined as a preliminary point of the merits, entails four important consequences.

First, a party losing a CAS case may not ask the SFT to set aside the CAS award under Article 190.2(b) of the Swiss Private International Law Act («PILA») if the panel erred on an issue of standing, given that an arbitral tribunal’s decision on a merits issue may not be reviewed. Indeed, the SFT stated as follows: «Whether or not a party has standing to appeal the decision of a [sports] body according to the applicable statutory and legal provisions does not affect the jurisdiction of the arbitral tribunal concerned but the issue of standing to sue. […] The CAS reviewed the conditions of an appeal against the decision of the [sports body], denied the Appellant’s standing to appeal and therefore rejected its submissions. The SFT does not review whether or not the Arbitral Tribunal rightly applied the law on which its decision rests. The Appellant’s arguments therefore come to nothing».5

Second, given that Article 186.2 PILA does not apply to issues of merits,6 a party which does not immediately raise an issue of standing in its first submission to the CAS is not precluded to later argue the lack of standing of the other party (subject, of course, to the procedural preclusions of Article R56 of the CAS Code).

Third, contrary to what occurs for jurisdictional issues (where, under Swiss law, a party not objecting to the jurisdiction of an arbitral tribunal is considered to have accepted it), a CAS panel may address issues of standing sua sponte, on its own motion, even if the parties have not raised them in their submissions. Of course, to avoid taking the parties by surprise and, thus, to avoid violating their right to be heard, a CAS panel must give the parties the opportunity to comment upon such issues of standing before dealing with them in an award.7

Fourth, if an arbitral tribunal declares that a claimant, appellant or respondent lacks standing, the underlying substantive dispute may not be litigated again in another arbitral or judicial forum; while, on the contrary, if an arbitral tribunal declines to adjudicate a case for lack of jurisdiction, the underlying substantive dispute remains unadjudicated and could in principle be relitigated before the competent judge, for example a State court (unless this is precluded by some other legal obstacle, such as a statute of limitation).

2. Distinction between CAS appeals and avoidance actions under Article 75 of the Swiss Civil Code

As a preliminary point, which is specifically relevant to the issue of standing to be sued in appeals proceedings, it must be recalled that, under Article 75 of the Swiss Civil Code (CC), when a member of a Swiss association challenges an association decision before a Swiss court, bringing a so-called «action for avoidance», the only party having standing to be sued is the association itself and not any other member of the association.

As will be seen infra, CAS panels have tackled the issue of standing to be sued in appeals proceedings – with regards to the decisions of sports bodies incorporated as Swiss associations, as is the case of FIFA – in a distinctive way, different in several respects from the way the same issue is dealt with by Swiss cantonal courts under Article 75 CC. Interestingly, the SFT has recognised the peculiarities of sports arbitration and has not objected to this differentiation in terms of standing to be sued between appeals arbitration proceedings before CAS panels and Article 75 CC proceedings before Swiss courts.

It is true that the SFT stated that «the proceedings in front of the CAS, in which the Respondent challenged the denial by FIFA of the compensation sought, are nothing else than the arbitral adjudication of a challenge against a decision of a Swiss association».8 However, the SFT never said in any of its judgments that a challenge against a sports association’s decision brought before a Swiss court and an appeal brought before the CAS (on the basis of an arbitration clause included in the association rules) must be considered as having the same legal nature and involving the same procedure.

Even if the substantive right to challenge a Swiss association’s decision derives in any case from Article 75 CC, the two actions – the one before Swiss courts and the one before the CAS – are different in several respects.

One important difference, in particular, concerns the power of review. In the case of a standard action for avoidance of a resolution of a Swiss association under Article 75 CC, the competent Swiss ordinary courts may only annul the association decision (in French legal parlance, they only have a «pouvoir cassatoire»); whereas CAS panels have a de novo power of review and are allowed not only to annul the decision, but also to issue a new decision which replaces the challenged decision (Article R57 of the CAS Code). Another important difference specifically concerns standing to be sued. When an association resolution is challenged before a Swiss court, only the association and not the other members of the association must be sued; whereas in CAS appeals proceedings, other members may have standing to be sued besides the association itself. Indeed, in appeals before the CAS, the other interested parties to a horizontal dispute do have standing to be sued and must be summoned in the proceedings.

All this confirms that CAS appeal proceedings, based on complex and detailed regulatory frameworks of sports associations, are quite different from the actions for avoidance of a resolution of a Swiss association under Article 75 CC and, therefore, the legal solutions to be given to the various issues related to standing to sue and to be sued can be specifically tailored on the peculiarities of CAS appeals proceedings.

3. Distinction between formal standing
and substantive standing

The notion of standing in CAS arbitration is characterised by both a formal requirement and a substantive requirement.

On the one hand, the «formal standing» element, also known as «legitimatio ad causam», requires that the party suing or being sued has, under the applicable rules, the legal status entitling it to bring a legal action as claimant/appellant or to be summoned as respondent; however, the applicable rules do not always set out this requirement and, thus, this is not always a relevant element in the analysis.

On the other hand, the «substantive standing» element, also known as «legal interest» or «legitimate interest» («interest to act» in civil law parlance), must always be present and requires that the suing or responding party has something at stake in the dispute that deserves legal protection. It must be noted that, when the applicable regulations of the sports organisation that adopted the appealed decision do not provide anything with regard to formal standing, not even implicitly, the only relevant requirement to be fulfilled is that of substantive standing.

The FIFA Disciplinary Code («FDC») is quite interesting because it makes reference to both the formal standing and the substantive standing requirements. Indeed, paragraph 1 of Article 62 (labelled «Standing to appeal») of the 2025 edition of the FDC so provides: «Anyone who has been a party to the proceedings before the Disciplinary Committee may lodge an appeal with the Appeal Committee [formal standing], provided this party has a legally protected interest in filing the appeal [substantive standing]». Although Article 62.1 FDC only makes reference to internal FIFA appeals, CAS panels have applied this rule pari passu to appeals to CAS against the decisions of the FIFA Appeal Committee: «The Panel is of the view that both common sense and the reference included in Art. 49 [now 52] FDC to the “provisions of this Code” […] render the standing to appeal requirements set forth by Art. 58 [now 62] FDC applicable not only to the internal appeals to the FIFA Appeal Committee, but also to the external appeals to the CAS».9

4. Formal standing to sue or be sued (legitimatio
ad causam) in CAS appeals proceedings.

In CAS appeal proceedings, the parties must often comply with a requirement of formal standing or legitimatio ad causam. Indeed, if the regulations of the sports body adopting the contested decision include rules specifying who may and who may not appeal, those rules determine who has formal standing to sue.

A typical example of this is Article 13.2.3 of the World Anti-Doping Code (WADC), which explicitly lists who is entitled to appeal: «[…] the following parties shall have the right to appeal to CAS: (a) the Athlete or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) the relevant International Federation; (d) the National Anti-Doping Organisation of the Person’s country of residence or countries where the Person is a national or licence holder; (e) the International Olympic Committee or International Paralympic Committee, as applicable, where the decision may have an effect in relation to the Olympic Games or Paralympic Games, including decisions affecting eligibility for the Olympic Games or Paralympic Games; and (f) WADA».

Interestingly, this provision of the WADC implicitly excludes that a competitor of the athlete accused of doping may challenge before the CAS the decision imposing or not a doping sanction. This is illustrated by a CAS case where the panel stated that both appellants (an athlete and its National Olympic Committee) lacked standing to appeal as they were not mentioned in the applicable anti-doping rules (identical to the WADC) listing the parties entitled to appeal a doping decision to the CAS: «It is evident that neither a competitor (of the athlete subject to an anti-doping decision) nor his National Olympic Committee are among the individuals or organisations listed therein. This interpretation is confirmed by the Comment on the WADA Code […] which unambiguously states that such list of persons or organisations having standing to appeal “does not include Athletes, or their federations, who might benefit from having another competitor disqualified”».10

An analogous situation occurred in a case decided by an ad hoc CAS panel at the Olympic Games of Beijing 2008, where the Azerbaijan National Olympic Committee, the Azerbaijan Field Hockey Federation and the players of the Azerbaijan National Field Hockey Team were unsuccessful in bringing a case against the International Hockey Federation (FIH) attempting to have the Spanish female hockey team excluded from the Olympic Games, since they failed to demonstrate that they had formal standing to sue under the applicable rules. In particular, the CAS panel reasoned (a) that Article 13.2.3 of the FIH Anti-Doping Policy (modelled on the WADC) provided an exhaustive list of parties entitled to appeal a decision of the FIH Disciplinary Commission, and (b) that such list included the accused athletes, the FIH, the IOC and WADA, but made no room for an appeal from other parties: «the Applicants were not a party, nor were they entitled to be an interested party before the Disciplinary Commission. Once the Disciplinary Commission has issued its Decision […] the Applicants have no rights of appeal under Art. 13, and more particularly, under the applicable Art. 13.2.3. The Panel must conclude that the Applicants have no standing to make this Application to the CAS ad hoc division».11

Sometimes, the requirement of formal standing can also be relevant with regard to a respondent’s standing to be sued. This occurs whenever the pertinent sports rules specifically state who must be summoned as a respondent in case of an appeal to the CAS. This is the case, for example, of Article 64 of the Euroleague Basketball Disciplinary Code, which provides that it is possible to file an appeal before the CAS against «rulings for serious infringements» and specifies that the «defendant to be named in such appeals is [Euroleague Properties S.A.] and any other party to the proceedings before the hearing bodies».

When a party has formal standing to sue or to be sued, this may or may not be sufficient per se to establish its standing. In fact, it depends on how the applicable sports regulations are drafted. Usually, the substantive standing requirement (i.e., the existence of a legitimate or legal interest to be a party in the arbitration), which will be dealt with infra, must also be satisfied in addition to the formal standing requirement.

Sometimes, however, the applicable sports regulations, in granting formal standing to a given party (or category of parties), explicitly or implicitly exclude the need to also prove the existence of a legal interest. It can be said that, when the applicable sports regulations explicitly provide that a given party has standing to sue regardless of any demonstration of legal interest, that party is conferred a sort of «constructive legal interest».

It must also be pointed out that – notwithstanding the general principle that a party has standing only to protect its own rights and not those of another party12 – sometimes the applicable sports rules grant the right to appeal not only to the party directly affected by a decision but also to a different party. This is exactly what is provided by Article 62.2 of the FDC, allowing clubs or national federations to challenge – not only before the FIFA Appeal Committee but also, subsequently, before the CAS – a disciplinary sanction imposed by FIFA on one of their players, officials or members: «Member associations and clubs may appeal against decisions sanctioning their players, officials or members». This is an interesting provision, which determines a situation that can be legally qualified as one of procedural substitution, as explained by a CAS panel: «The Panel considers that Article 58.2 [now 62.2] FDC establishes a situation of “procedural substitution” (a legal situation known in various national legal systems, when a person is allowed to act in his or her own name by exercising a claim that originally belongs to a third party). In essence, this provision grants the Club the right to “put itself in the Player’s shoes” and exercise in its name all the rights the Player would have had as if he had himself appealed the Appealed Decision. The Panel acknowledges that, without Article 58.2 FDC, the Club would not have had standing to appeal the decision against the Player because, in principle, one can only resort to the CAS to protect one’s own rights and not those of third parties (see CAS 2005/A/889). However, as already stated, Article 58.2 FDC grants the appealing club formal standing to sue by granting it the power to procedurally substitute the Player»13.

A form of procedural substitution has also been customarily allowed in CAS proceedings taking place before the CAS ad hoc division that has been established for each and every edition of the Olympic Games since 1996. Indeed, in CAS Olympic proceedings, national olympic committees or national federations sometimes bring or oppose claims on behalf of their athletes, or on their side, and this has never been opposed by anybody in terms of lack of standing14.

As a matter of course, these forms of procedural substitution in CAS proceedings only grant formal standing to sue and do not exclude the need to prove the interested party’s substantive standing to sue (i.e., its legal or legitimate interest)15.

5. Substantive standing to sue (legal or legitimate
interest)

Some CAS panels have characterised the notion of substantive standing – often defined as «legal interest» or «legitimate interest» – as an «aggrievement requirement», stating that «only an aggrieved party, having something at stake and thus a concrete interest in challenging a decision adopted by a sports body, may appeal to the CAS against that decision».16 In other words, a party has no standing to sue if it «is not directly affected by the decision appealed from».17 As said in French, «pas d’intérêt, pas d’action» (i.e., «no interest, no action»).

Indeed, as stated by a CAS panel, «the above described “aggrievement requirement” is an essential element to determine the legal interest and the standing of a party to appeal before the CAS a sports body’s decision, because the duty assigned to a panel by the CAS Code rules governing the appeal arbitration procedure is that of solving an actual dispute and not that of delivering an advisory opinion to a party that has not been aggrieved by the appealed decision».18

Another CAS panel stated as follows: «A court shall only have to decide the merits of a request, if the applicant has a sufficient legal interest in the outcome of the decision. If, on the contrary, the request is not helpful in pursuing the applicant’s final goal, the judicial resources shall not be wasted on such matter».19

It is important to note that such legal (or legitimate) interest must be present not only at the beginning of the case, but also at the time of the final award.20 As stated by a CAS panel: «This legitimate interest must exist not only at the time the appeal is filed, but also when the decision is issued and, therefore, if the interest disappears during the proceedings, the appeal must be dismissed»21

The requirement of a sufficient interest at stake in the dispute can be of a financial or a sporting nature or even merely reputational. A CAS panel so stated: «The requirement of standing to sue or standing to appeal has been dealt with many times by CAS panels, in particular in connection with appeals against decisions of sporting bodies. In principle, standing to sue is recognised if a person appealing against a certain decision has an interest worthy of protection, i.e., a sufficient interest in the matter being appealed (cf. CAS 2008/A/1674; CAS 2010/A/2354). In other words, an appellant has to demonstrate that he or she is sufficiently affected by the appealed decision and has a tangible interest, of financial or sporting nature, at stake».22

With regard to disciplinary cases, the imposition of a sanction can be deemed to always generate a reputational damage for the sanctioned individual or entity: « Any disciplinary sanction – including, as in this case, the extension of its scope of application – also entails damage to the reputation of the sanctioned person»23

The requirement of legal (or legitimate) interest to appeal has been discussed in several CAS awards, and the jurisprudence has been varying, some panels being more rigorous and other panels being more liberal in determining the presence of a legal interest and, thus, of substantive standing to sue.

It is submitted that a liberal approach is appropriate in CAS arbitration and that, therefore, the presence of a legal interest, and thus of standing to appeal, should only be denied if the appealing party would have no benefit whatsoever, not even reputational, in obtaining a judgement in its favour. The rationale for this approach has been clearly spelled out in an award written by a prominent CAS arbitrator, Professor Ulrich Haas: «In order for the claim to be admissible, the Appellant must have a legal interest (“Rechtsschutzinteresse”, “intérêt d’agir”). Since the requirement of a legal interest determines in a given case whether a claimant has access to justice, the bar must be set with prudence and – in any respect – not too high. The requirement of a legal interest is of a procedural nature. […] In principle, the Sole Arbitrator finds that the threshold for a legal interest must be set low before an arbitral tribunal. The prerequisite of a legal interest is designed to protect the courts from being deadlocked with needless disputes. The prerequisite, thus, helps to manage the work load of the courts and to protect scarce public resources. The answer to the question, however, what disputes shall be considered “needless” is very different in cases in which the state provides and pays for courts that adjudicate a dispute compared to cases where the parties mandate and pay (in full) a private institution to adjudicate the matter. In the latter case, a legal interest should only be denied if there is no benefit for the party whatsoever in obtaining a judgement in this matter in his or her favour».24

In line with the said liberal approach, in some cases, even a party who was not present during the previous instance’s proceedings, but who acquired the legal interest to appeal after the appealed decision was issued, may be deemed to have legal interest and, thus, standing to appeal (as was stated by a panel chaired by another prominent CAS arbitrator, Professor Luigi Fumagalli): «The Panel, however, notes that the Player only signed his employment contract with the Club on 16 July 2014, i.e., after the FIFA decisions had been adopted. Up to that moment, the Club did not have any direct interest, which became actual only when the employment contract was signed. Therefore, FC Barcelona could not participate in the FIFA proceedings. The Panel is of the view that in a case where the FIFA authorities are issuing a sanction against a player and such sanction affects direct financial interests of a club, such club must have the possibility to appeal (within the applicable deadline) such decision in order to be able to protect its legal interests, even if these interests became actual after the challenged decision was issued. For this reason and in the specific circumstances of the case at hand, the Panel finds that the Club has a standing to sue, even if it was not a party to the proceedings before the first and second FIFA instance; the direct legally protected interest of the Club justifies its own request for an amendment or cancellation of the Appealed Decision».25

A recent CAS award corroborates the here advocated liberal approach: «the Panel considers that, while limiting access to public judicial dockets is an understandable policy concern which warrants a strict application of the matter of standing, such considerations diminish or lose weight in the context of proceedings before private arbitral institutions. […] as the cited CAS precedent aptly puts it, the bar to access to justice must be set with prudence (i.e., reasonableness). In exercising this standard, the Panel is fully aware that an appellant seeking redress from an arbitral tribunal must hold a legitimate interest worthy of protection when filing its appeal. On this point, the Panel is sufficiently satisfied – in attention of the circumstances of this case – by the First Appellant’s contention that its interest lies in the reputational consequences of the First Appealed Decision».26

6. Substantive standing to be sued

Obviously, exactly as the claimant or appellant must have standing to sue, a respondent summoned into a CAS arbitration must have substantive standing to be sued, i.e., it must have some stake in the dispute. The CAS Code does not contain any specific rule about this matter, but it is a very clear principle under Swiss law that «the defending party has standing to be sued (légitimation passive) if it is personally obliged by the “disputed right” at stake […]. In other words, a party has standing to be sued and may thus be summoned before the CAS only if it has some stake in the dispute because something is sought against it».27

For example, in a CAS case, a Swedish club lodged an appeal against a FIFA decision, naming as respondents both a French club and the French Football Federation (FFF). The FFF asked to be excluded from the case and the sole arbitrator remarked that the FFF was not a party to the case before FIFA and, moreover, that «the Appellant is not claiming anything against the FFF and […] the FFF has nothing at stake in this dispute. Accordingly, the Sole Arbitrator finds that the Appellant erred in summoning the FFF as a respondent because the FFF lacks standing to be sued in connection with this case».28

In another case, a football coach filed an appeal before the CAS challenging a decision of the appeal commission of the Romanian Professional Football League (RPFL) that had adjudicated a dispute between the coach and a club and summoning as respondents the interested club and the Romanian Football Federation (RFF), but not the RPFL. The CAS panel held that the RFF did not have standing to be sued because it was a separate entity from the body that had ruled on the dispute (the RFPL) and did not have anything to do with the appealed decision.29

An interesting situation occurred in a case where a party to a disciplinary case before FIFA appealed to the CAS, trying to also summon as a respondent a player who had not been a party to the FIFA disciplinary case, asking the panel to impose on him a sanction.30 The panel rejected such attempt by observing that «the FIFA Disciplinary Committee, in exercising its discretion under Article 52 [now 55] FDC, decided not to bring charges and open a proceeding against the Player [and] that no FIFA rule allows the FFC to start before the CAS a disciplinary action against the Player. Accordingly, the Panel holds that the FFC could not summon the Player as a respondent because he lacks standing to be sued in connection with the present proceedings. To hold otherwise would essentially mean granting the FFC the unfettered authority to decide in the place of FIFA whether and when to bring charges and open a disciplinary proceeding against someone else (here the Player) pursuant to Article 52 [now 55] FDC. Under that provision, however, said authority rests solely in the hands of FIFA, as was confirmed in CAS 2017/A/5001 & 5002».31

7. Mandatory standing to be sued

In some CAS cases, the claimant or appellant does not summon into the case as respondent a third party whose rights would be affected by all or part of the relief requested. However, a CAS panel may not adopt an award that would impact on the rights of a third party.

This can be defined as a situation of «passive mandatory litisconsortium» (or «passive mandatory joinder»). This means that a claimant or appellant, when filing with the CAS a request for arbitration (ordinary arbitration procedure) or a statement of appeal (appeal arbitration procedure), must necessarily summon as respondents all the parties against whom it is seeking some relief or whose rights would be inevitably affected by an award upholding its motions for relief. If the claimant or appellant fails to pursue that procedural course, the CAS panel is bound to reject the pertinent motions for relief.

Of course, the various motions for relief submitted by the claimant or appellant must be examined separately; if any of them could be upheld without affecting the rights of any third party, the CAS panel may deal with those requests for relief on their merits (stricto sensu) and only reject on a preliminary basis (i.e., as part of the merits lato sensu) those requests for relief that would unavoidably affect the rights of a third party.

The above has been acknowledged in CAS jurisprudence, as can be seen in the following three examples.

First, in the context of a dispute involving two different Kenyan factions, both claiming to be the true and legitimate Kenyan football federation and asking to be recognised as such by FIFA, one of the factions started a case against FIFA without summoning as respondent the other faction; the CAS panel so stated: «In the Panel’s view, it could be considered that the sort of requests made by KFF in this arbitration procedure necessitate it addressing its claim not only against FIFA but also against FKL, acknowledging a sort of passive mandatory litisconsortium. Accordingly, some requests would be raised against FIFA, i.e., KFF’s request to be recognised as a FIFA member; other requests would have to be raised against FKL, i.e., KFF’s request to be the one and only Kenyan member recognised by FIFA and KFF’s request to have FIFA be prevented to interfere in the Kenyan membership of KFF. […] FKL should have had the chance to intervene and defend its case, and this was in the Claimant’s hands, as it was the one who decided to start the claim and to determine which parties had to be involved in it. The above mentioned status of FKL and its non-participation to these proceedings could be considered as an issue of passive mandatory litisconsortium and could lead to the dismissal of KFF’s claim»32.

Second, in the context of a dispute between two national football federations, where the federation of Namibia contended that the federation of Burkina Faso had fielded an ineligible player in the qualifiers for the 2012 Africa Cup of Nations, the federation of Namibia appealed against the decision by which the African Football Confederation (CAF) rejected its complaint; the CAS panel so stated: «The Appellant did not bring the Burkina Faso FF into these proceedings and the scope of the Panel’s review is limited to those prayers that the Respondent [CAF] is the subject of. The Appellant’s prayers for relief included the request that the Panel determine that “(…) Burkina Faso should lose the two matches by penalty (3-0). This again would have the consequence that the team of the Namibian Football Association would take part in the final round of the Africa Cup of Nations instead [of] the team of Burkina Faso”. The Panel noted that it was ultimately the choice of the Appellant against whom it appealed, but by not including the Burkina Faso FF as a party, the Panel has determined that its scope of review is limited to a review of the Appealed Decision alone. In the event that, on the merits, it is determined to overturn the Appealed Decision, then this Panel would be unable to go further and issue an award that would have the effect of replacing Burkina Faso with Namibia at AFCON 2012. […] The Panel does not consider the CAF as the “passive subject” of the claim brought before CAS by way of the appeal against CAF’s decision, as CAF’s rights are not relevant to the relief sought by the Appellant. The Panel are satisfied that the CAF does not have the standing to be sued in relation to the entirety of the Appellant’s prayers for relief».33

Third, in the context of a dispute where the football federations of Chile and Peru contended that the federation of Ecuador had fielded an ineligible player in the qualifiers of Conmebol (the South-American Confederation) for the 2022 FIFA World Cup, the Chilean and Peruvian federations appealed against the FIFA’s decision to reject their complaints and summoned as respondents FIFA and the Ecuadorian Federation; FIFA argued that they should have summoned also the other national federations who had taken part in the South-American qualifiers. The CAS panel so stated: «FIFA argues that the present appeal must be dismissed because there is a lack of standing to be sued of the current Respondents due to the lack of so-called “passive mandatory joinder”, also referred to as “passive mandatory litisconsortium”. […] The Panel finds that it was not necessary for the Appellants to name as respondents the other member federations of Conmebol for the following reasons. […] With regard to CAS cases concerning disciplinary sanctions, the duty to name other competitors in addition to the sports body that issued the appealed decision is dependent on the applicable sports regulations. When the applicable sports regulations do not address this issue, CAS jurisprudence shows that third parties must be named by an appellant only when something is requested directly against them (typically, in cases when an appellant seeks to take the place of another participant in a competition). Therefore, the issue raised by FIFA can be relevant only in cases where some motions for relief put forward by an appellant, if upheld, would directly and irremediably affect in a significant way the direct, personal and actual rights of a third party that has not been summoned as a respondent. […] this is not the case in the present proceedings. […] the other member federations of Conmebol could only derive benefits but not any disadvantages from the Panel’s eventual decision. Indeed, if the Panel were to sanction the FEF with a point deduction, forfeiture of matches or exclusion from the FIFA World Cup, those national federations could actually move up the standings of the World Cup Qualifiers, but not suffer any negative effects such as being demoted in the standings from a qualifying position. Therefore, their direct, personal and actual rights could not be affected by the appeals filed by the FFC and the FPF. As a result, the Panel can deal with the requests for relief sought by the Appellants without violating the right to be heard of any third party. […] the Panel observes that, unlike in CAS 2017/A/5001 & 5002, in the present case the World Cup Qualifiers for Conmebol had already finished by the time the complaint was filed by the FFC, meaning that the final outcome of the standings was already known. Accordingly, it was already known that these other member federations of Conmebol (i) would not be negatively affected by whatever outcome of the present case and (ii) would not finish in a qualifying position even if they were to obtain additional points from the FEF being imposed a point deduction, forfeiture or exclusion from the FIFA World Cup».34

To conclude on this point, CAS jurisprudence shows that parties must be very careful in deciding whom to summon in a CAS case; of course, in case of doubt, it is better to summon a party and then let the CAS panel exclude that party from the case, rather than risking the dismissal of the case for not having summoned as a respondent a party whose rights would be affected by the relief requested.

8. FIFA’s standing to be sued before the CAS

Many CAS cases have dealt with the issue of FIFA’s standing to be sued in appellate proceedings deriving from decisions issued by FIFA justice bodies. In this connection, a distinction must be drawn between decisions on «vertical disputes» and decisions on «horizontal disputes». A decision on a «vertical dispute» occurs when a sports governing body adopts a measure affecting its relationship with a natural or legal person subject to its authority (typically a disciplinary, eligibility or membership decision targeting a direct or indirect member of that body). A decision on a «horizontal dispute» occurs when a sports governing body acts merely as a neutral adjudicator and adopts a decision resolving a dispute between individuals or entities subject to its authority (typically a contractual dispute between two or more of its direct or indirect members). Of course, there are also cases encompassing both a horizontal and a vertical dispute.

On the one hand, there can be no doubt that FIFA has standing to be sued and must be summoned before the CAS as respondent whenever there is an appeal against a FIFA decision ruling on a «vertical dispute», that is to say a dispute between FIFA itself and one of its direct members (a national football federation) or indirect members (in particular, a club, a player or a coach). This certainly occurs whenever FIFA exerts its disciplinary authority over one of its direct or indirect members,35 but it also occurs in disputes related to membership, admission, recognition, eligibility or corporate matters between FIFA and one of its direct or indirect members, even if other direct or indirect members of FIFA can be affected and thus summoned as respondents into the case.36

In this connection, in a case concerning the issuance of a provisional ITC, a CAS panel so stated: «The issuance of a provisional registration for a player with a national federation touches upon the relationship between FIFA and its members. It does not interfere with the relationship among clubs. The proceedings put in place to accord or refuse an ITC, in the Panel’s view, are meant to protect an essential interest of FIFA. […] when assuming the competences conferred on it according to the RSTP FIFA is exercising an administrative function and, thus, having an impact on the rights and duties of its individual members in the sense of Article 75 CC. The mere fact that several (and not just one) member is affected by FIFA’s administrative act does not change the nature of the “appealed decision”. If one applies the principles laid down in Article 75 CC to the case at hand then the dispute must be considered to be a membership related dispute with the consequence that it must (also) be directed against FIFA».37

On the other hand, some doubts have arisen in relation to appeals against FIFA decisions on «horizontal disputes», that is to say disputes between FIFA direct or indirect members (national federations, clubs, players, coaches, etc.) in which FIFA performs – through its justice bodies – the function of a neutral adjudicative entity.

In those cases, what happens if the appellant only calls as respondent its «horizontal» counterpart and fails to also call FIFA as a respondent? Can the CAS panel proceed and issue a decision on the merits even if FIFA, i.e., the entity that adopted the appealed decision, has not been summoned into the case? It must be noted that no FIFA rule specifies against whom an appeal against a decision adopted by a FIFA body should be directed. As there is no specific FIFA rule, this question of standing to be sued must be addressed on the basis of Swiss law, which is «additionally» applicable under Article 56, para. 2, of the FIFA Statutes.

CAS jurisprudence is nowadays very clear in stating that the appointed CAS panel may proceed to examine the matter and adjudicate the horizontal dispute on its merits, issuing an arbitral award which binds the parties, even if FIFA has not been summoned as one of the respondents.38 This is so because a decision adopted by a FIFA body on a horizontal dispute (typically a decision of a chamber of the Football Tribunal), being a resolution of an association,39 has a contractual value for the members of the association. Indeed, considering the legal framework created by FIFA rules, a FIFA decision on a horizontal dispute has the potential to modify the parties’ contractual relations between each other, in particular affecting their reciprocal pecuniary rights and obligations. Accordingly, a CAS panel may well deal with such a contractual dispute and grant the parties a definitive configuration of their reciprocal rights and obligations, even if FIFA has not been summoned in the arbitration.40

However, the fact that CAS panels may proceed, in appeal proceedings, to adjudicate horizontal disputes on their merits even if FIFA has not been summoned as one of the respondents, does not mean that in those cases FIFA has no standing to be sued. In fact, any decision issued by a FIFA body on a horizontal dispute – as are the decisions issued by the chambers of the FIFA Football Tribunal on disputes involving clubs, players, coaches and/or national federations – in any case involves the «association life» of FIFA, because such a decision is (i) adopted by a body of FIFA, (ii) on the basis of the rules of FIFA as set out in its statutes and regulations, and (iii) addressed to direct or indirect members of FIFA. This has been confirmed by several CAS panels.

For example, in an appeal before the CAS involving a dispute between two clubs concerning the ITC released by the Single Judge of the FIFA Players’ Status Committee, the CAS panel pointed out that a «membership relation is not just one-dimensional. Instead, the rights and obligations resulting from membership in an association point in several directions, i.e. towards the association as such but also towards the other individual members. Disputes between members of an association can, therefore, not be excluded from the outset from the membership related sphere. This is all the more true in view of the fact that an association which settles disputes between its members in application of its own rules and regulations is of course (also) pursuing goals of its own and, hence, is also acting in a matter of its own»41.

Therefore, FIFA always has standing to be sued in appeals against a decision issued by one of its justice bodies, even if the dispute appears to be purely horizontal; indeed, the fact itself that such decision could be set aside or modified by the CAS confers sufficient interest for FIFA to be summoned as a respondent. Of course, once summoned before the CAS in a purely horizontal dispute, FIFA is always at liberty to decline to take active part in the case (and, in practice, this frequently happens). FIFA remains, in any event, bound by the arbitral award because it was originally called into the case as a respondent and, at any rate, its own regulations provide that CAS decisions must be respected.

9. Concluding Remarks

Issues of standing and standing to be sued can sometimes be quite intricate, as they involve both factual and legal aspects. As practical advice for any party wishing to commence an arbitration before the CAS, either as a claimant in an ordinary procedure or as an appellant in an appeal procedure, in case of doubt it is always preferable to summon all potential respondents.

A caveat is necessary, though: a party who improperly summons as a respondent into a CAS case a party who lacks standing to be sued might eventually be ordered to pay legal costs to that respondent.

However, considering in terms of costs/benefits that, on the one hand, it is customary in CAS cases that contributions to the costs of the other parties are not particularly high and that, on the other hand, not summoning the right respondent(s) might irremediably lead to the rejection of the claim, it appears preferable, in case of doubt, to err on the side of caution and summon into the case all potential respondents.

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