CAS 2023/A/9867 Esteban Becker Churukian
v. Federación Ecuatoguineana de Fútbol & FIFA. COMPENSATION FOR BREACH OF CONTRACT

Miguel Liétard

FIFA Director of Litigation

Abstract:

The following is an analysis of the legal proceedings involving a Coach and a national association (FEGUIFUT) stemming from the unilateral termination of the employment contract by the latter. After said termination, the Coach filed a claim with FIFA, and was found to be entitled to compensation from FEGUIFUT. Subsequent non-compliance by FEGUIFUT led to multiple disciplinary decisions and an eventual appeal to the Court of Arbitration for Sport (CAS). The appeal, focused on FIFA’s decision to lift sanctions against FEGUIFUT, was ultimately dismissed, with the CAS finding the case moot following the settlement of the financial obligations by FEGUIFUT and the consequent lack of standing to sue/appeal by the Coach.

Keywords:

CAS, disciplinary proceedings, appeal, claim for damages, admissibility, jurisdiction, standing to sue.

CAS 2023/A/9867 Esteban Becker Churukian v. Federación Ecuatoguineana de Fútbol & FIFA. COMPENSATION FOR BREACH OF CONTRACT

Miguel Liétard

FIFA Director of Litigation

Summary: 1. Factual background. 1.1. The Coach’s employment dispute with FEGUIFUT. 1.2. The disciplinary proceedings against FEGUIFUT. 2. CAS Appeal. 2.1. Arguments of the Parties. 2.2. The Panel’s decision. 3. Conclusions

1. Factual background

1.1. The Coach’s employment dispute with FEGUIFUT

On 2 January 2015, Mr. Esteban Becker Churukian (hereinafter also referred to as the “Coach” or the “Appellant”) signed an employment contract with the Federación Ecuatoguineana de Fútbol1 (“FEGUIFUT”) by means of which the former was hired as the head coach of FEGUIFUT’s men’s national A team. Before this, Mr Becker Churukian had been employed by FEGUIFUT as the coach of its women’s national A team between 2012 and 2015 (the “Contract”).

On 12 June 2017, following a defeat of the national team in the qualifying tournament for the CAF African Nations’ Cup 2019, FEGUIFUT unilaterally terminated the Coach’s employment (the “Termination”). As a result, on 2 August 2017 the Coach filed a claim with the FIFA Players’ Status Committee (“PSC”), arguing that the Termination had been unilateral and without just cause and requesting that FEGUIFUT be ordered to pay him compensation for breach of contract.

On 31 January 2019, the PSC issued a decision in connection with the Coach’s claim, by means of which FEGUIFUT was ordered to pay Mr. Becker Churukian the amount of EUR 1,045,000 plus interests as from 2 August 2017 as compensation for having breached the Contract (the “PSC Decision”).

FEGUIFUT subsequently filed an appeal to the Court of Arbitration for Sport (“CAS”), which was eventually dismissed on 24 November 2020 (TAS 2019/A/6428 – the “CAS Award”).

1.2. The disciplinary proceedings against FEGUIFUT

As the CAS Award resulted in the PSC Decision becoming final and binding, and FEGUIFUT had not complied with its obligations arising therefrom, the Coach turned to the FIFA Disciplinary Committee (the “Disciplinary Committee”) and sought to apply the mechanisms available to him under the FIFA Disciplinary Code (“FDC”) by denouncing FEGUIFUT’s failure to comply with the CAS Award (and indirectly with the PSC Decision).

This, in turn, led to several decisions by the Disciplinary Committee over the course of several years.

1.2.1. First Disciplinary Decision

On 18 December 2020, the Appellant filed his first complaint to the Disciplinary Committee in connection with FEGUIFUT’s failure to comply with the CAS Award.

Following the relevant process, the Disciplinary Committee issued its decision FDD-7637 on 11 March 2021, which, in short, (i) found FEGUIFUT guilty of failing to comply with the CAS Award, (ii) ordered FEGUIFUT to pay the outstanding amounts to the Coach and to FIFA (procedural costs in the latter case), (iii) imposed a CHF 30,000 fine on FEGUIFUT and (iv) warned FEGUIFUT that in case of further non-compliance within 30 days, the case would be submitted to the Disciplinary Committee for further and more severe sanctions.

No appeal was ever filed against decision FDD-7637 (also referred to as the “First Disciplinary Decision”).

1.2.2. Second Disciplinary Decision

On 22 April 2021, the Coach informed the Disciplinary Committee that FEGUIFUT had failed to comply with the First Disciplinary Decision and asked that more severe sanctions be imposed on that association.

As a result, on 20 May 2021, a second decision in proceedings FDD-7637 (the “Second Disciplinary Decision”) was issued, whereby, in addition to the finding of guilt and the order to comply with its outstanding financial obligations arising from the PSC Decision, the CAS Award and the First Disciplinary Decision within a final grace period of 60 days, FEGUIFUT was imposed a CHF 50,000 fine.

Here too, the decision became final and binding in the absence of an appeal to CAS.

1.2.3. Third Disciplinary Decision

On 27 July 2021, the Coach informed the Disciplinary Committee of FEGUIFUT’s continued failure to fulfill its obligations towards him, and he therefore asked that the latter be imposed sanctions that would effectively dissuade it from persisting in such default.

On 11 October 2021, a third decision was taken by the Disciplinary Committee (the “Third Disciplinary Decision”), in which FEGUIFUT was granted a final 30-day deadline to pay its outstanding debt, failing which it would automatically be expulsed from the FIFA World Cup Qatar 2022TM.

On 19 October 2021, following the notification of the Third Disciplinary Decision on 18 October 2021, the Coach asked the Disciplinary Committee to review the Third Disciplinary Decision. However, the request was rejected by the Disciplinary Committee on 8 November 2021 because the Coach did not have standing to sue in those proceedings that would allow him to request the revision of the decision.

The Coach did not appeal this Third Disciplinary Decision, which also became final and binding.

1.2.4. Fourth Disciplinary Decision

On 21 November 2021, the Coach again informed FIFA that FEGUIFUT had yet to comply with the CAS Award and asked that more severe and effective sanctions be imposed on the association.

On 11 February 2022, FEGUIFUT was informed that because it had already been eliminated from the FIFA World Cup Qatar 2022 TM on sporting grounds, the Chairman of the Disciplinary Committee had decided to apply the sanction to the Preliminary Competition of the FIFA World Cup 2026TM (the “Preliminary Competition”). As a result, FEGUIFUT was not allowed to participate in the draw of that competition (the “Fourth Disciplinary Decision” or the “Sanction”). However, the Disciplinary Committee further clarified that, should the amounts due to the Coach be paid prior to the draw of the Preliminary Competition, FEGUIFUT may be reinstated in said competition.

1.2.5. Appealed Decision and subsequent actions by the parties

On 11 July 2023, FEGUIFUT contacted FIFA and attached a letter from the Equatoguinean Vice-Minister of Youth and Sport, in which the latter stated that, following meetings between the parties (the Coach and FEGUIFUT), the Equatoguinean Government would make a one-time payment to the Coach and his assistant of USD 1,000,000, and that the rest would be covered by FEGUIFUT’s funds in FIFA.

On 12 July 2023, on behalf of the Chairman of the Disciplinary Committee, FIFA informed the Coach and FEGUIFUT that the Fourth Disciplinary Decision had provisionally been lifted (the “Appealed Decision”).

On that same day, the Appellant addressed an e-mail to the Disciplinary Committee, denying that any written or verbal agreement with FEGUIFUT existed, highlighting that no amount had yet been received by the Coach and requesting the reinstatement of the sanction under the Fourth Disciplinary Decision.

On 22 July 2023, the Coach and his assistant were jointly paid EUR 1,000,000 by the Equatoguinean Government.

2. CAS Appeal

On 2 August 2023, the Coach filed an appeal against the Appealed Decision and a request for provisional measures before CAS (procedure referenced as TAS 2023/A/9867), the latter of which was rejected by the Panel on 19 October 2023.

On 13 November 2023, while the CAS Appeal was ongoing, the Coach confirmed to FIFA that the outstanding amount in connection to the compliance with the Third Disciplinary Decision and the CAS Award was EUR 747,832 and CHF 11,000, at the same time authorising that the payment be made to his legal counsel’s bank account.

On 23 November 2023, FIFA made two transfers to the Appellant’s counsel, with the Coach and his assistant as ultimate beneficiaries, in the respective amounts of EUR 1,208,358 and CHF 22,000. These transfers covered the totality of the debt that was owed to the Coach and his assistant.2

2.1. Arguments of the Parties

The main focus of the Coach’s argumentation was aimed at portraying that, as a result of the Appealed Decision, the Coach would have suffered moral damage which required reparation.

On its side, FIFA argued that the Coach lacked standing to sue, as his appeal had become moot after the full compliance by FEGUIFUT with the CAS Award. FIFA also submitted arguments in connection with the mandatory passive joinder of CAF (“consorité passive nécessaire”), as organiser of the Preliminary Competition which would be directly affected by the Appellant’s requests for relief, as well as in relation to the Appellant’s claim for damages.

FEGUIFUT did not file an answer in the CAS appeal proceedings.

The main points of contention between the Coach and FIFA are summarised below.

2.1.1. The Appellant’s standing to sue

2.1.1.1. The Appellant’s position

In response to FIFA’s argument that he lacks standing to sue3, the Appellant argued that his standing in this matter arises from his right to rely on the Disciplinary Committee’s intervention to ensure compliance with the CAS Award, as well as to appeal when the Appealed Decision violates that right.

As per the Coach, the creditor plays an essential role within the proceedings to confirm compliance or not with the payment of the amounts owed to him, to give impulse to the proceedings and to make his position known to the debtor and FIFA. This is therefore no ordinary disciplinary proceeding, as it is aimed at ensuring compliance with a CAS award.

Furthermore, the Coach sustained that the Appellant’s interest existed at the time the appeal was filed, and it will remain until an award is rendered, since the object of the appeal is not to claim the payment of the amounts owed by FEGUIFUT in accordance with the CAS Award. The object is the illegality of the Disciplinary Committee’s actions and the moral damage caused by such actions. Additionally, the illegality and abuse caused by the Appealed Decision requires the declaration of its nullity. The Coach therefore had an interest in its annulment and in his claim for damages being decided upon, even if the amounts owed to him by FEGUIFUT are paid.

2.1.1.2. FIFA’s position

In its answer to the appeal (the “Answer”), FIFA firstly raised the Appellant’s lack of standing to challenge the Appealed Decision which, pursuant to Swiss law, is an issue pertaining to the merits of the dispute and which entails the rejection of the appeal.

Following the principles established in Swiss law, as well as in CAS jurisprudence, there are three requirements to assess the standing to appeal: (i) the party must be sufficiently affected by the challenged decision, (ii) the existence of a direct and legitimate interest worthy of protection in the annulment of the decision, and (iii) that such interest is present at the time the appeal is filed and at the time a decision putting an end to the appeal is issued. In FIFA’s view, none of these requirements were met by the Appellant.

In this respect, FIFA recalled that the Coach was not a party to the disciplinary proceedings which led to the Appealed Decision, nor was the latter addressed to him. According to CAS jurisprudence, the standing to appeal of a third party that was not the addressee of a decision is only granted under exceptional circumstances, with a theoretical or indirect interest being insufficient to grant such standing. Furthermore, the Appealed Decision in this case did not affect the Appellant, as he received the full payment of the amounts due to him, which had justified the lifting of the Sanction through the Appealed Decision.

Additionally, FIFA also emphasised that CAS jurisprudence has also acknowledged that a club or player does not have standing to request the imposition of sporting sanctions. In this sense, the Appellant would not gain anything from the reinstatement of the Sanction against FEGUIFUT, nor would he obtain any benefit from the imposition of additional measures. For this reason, the Appellant lacks a legitimate and direct interest in the annulment of the Appealed Decision.

Finally, FIFA highlighted that the direct and legitimate interest for the annulment of the Appealed Decision must be of a sporting or financial nature, and it must remain valid at the time that CAS issues its award on appeal. In this respect, the Coach never had a sporting interest in FEGUIFUT not participating in the Preliminary Competition, and the financial interest that had disappeared once FEGUIFUT made the full payment of its debt pursuant to the CAS Award prior to the Panel issuing its decision in the appeal.

2.1.2. CAF as a mandatory respondent

2.1.2.1. The Appellant’s position

Concerning the CAF’s mandatory standing to be sued alleged by FIFA4, the Appellant stated his disagreement and argued that CAF did not have standing to be sued, and much less a mandatory standing. CAF was not the addressee of the Third Disciplinary Decision, the Fourth Disciplinary Decision or the Appealed Decision, which were only communicated to it for information purposes.

Moreover, CAF is not the organiser of the Preliminary Competition; FIFA is. CAF only assists and collaborates with FIFA at the territorial level in this context.

2.1.2.2. FIFA’s position

In its Answer, FIFA pointed to the absence of CAF as a respondent, as it would be directly affected by the relief sought by the Appellant (in particular, the annulment of the draw of the Preliminary Competition and the elimination of FEGUIFUT from the tournament).

Indeed, CAF was a co-organiser of the Preliminary Competition, and the Coach’s request would directly affect the integrity of the tournament. CAF would be directly affected by FEGUIFUT’s exclusion in several aspects, such as: competition format, income, ticketing, calendars, etc. In fact, should the Appellant’s relief be granted, CAF would likely be more affected than FIFA.

The Appellant was fully aware that CAF would be directly affected by his appeal, yet he chose not to direct it against CAF. The latter’s absence in these proceedings meant that its right to be heard was not respected in connection with certain aspects that could have an influence on the outcome of the arbitration.

For this reason too, FIFA argued that the appeal should be rejected, in line with CAS jurisprudence in similar matters.

2.1.3. The validity or not of the Appealed Decision

2.1.3.1. The Appellant’s position

The Appellant’s main point of contention was that the provisional lifting of the Sanction set out in the Appealed Decision went against the Coach’s own denial of an agreement between himself and FEGUIFUT or of the payment of the amounts owed. The Appealed Decision would therefore be illegal and an abuse of power by FIFA, who took an unjust decision fully knowing that it was such.

The Appealed Decision, as well as the lack of response to the Coach’s requests to reinstate the Sanction, were in breach of the FDC, the FIFA Statutes and the FIFA Code of Ethics. Although Article 21 FDC allows the provisional lifting of disciplinary measures when irrefutable evidence of compliance with a decision is submitted, in this case no payment has been proven, aside from a letter which mentioned an existing agreement.

The illegality of the Appealed Decision affected the proper administration of justice that FIFA has bestowed upon itself, as the enforcement of a CAS award is part of the fundamental right to due process.

For the above reasons, the Appealed Decision must be declared null, with the consequent ex tunc effect, which requires backdating the effects of the Appealed Decision to the moment in which it was issued, with all subsequent acts being declared null (including FEGUIFUT’s inclusion in the draw for the Preliminary Competition and the closing of the disciplinary proceedings).

2.1.3.2. FIFA’s position

In FIFA’s view, the Appealed Decision was taken in accordance with the powers granted under Article 21(3) FDC, which had been amended to ensure a faster, more agile and efficient way to provisionally lift disciplinary measures, in order to avoid serious and irreparable repercussions. This power can be exercised when the debtor submits reliable evidence that the amounts due will be paid.

In this case, the letter filed by FEGUIFUT proved that the payment was guaranteed by the Equatoguinean Government and by FIFA itself. There were no reasons to doubt the veracity of the information contained therein, as FIFA could easily verify the truth behind the eventual payment through FEGUIFUT’s FIFA funds, and the Government’s commitment to pay could not be influenced in any way by FEGUIFUT. Proof of the reliability of the letter’s content is that the mentioned payments were finally made (in particular, the Equatoguinean Government paid the promised amount on 22 July 2023, less than ten days after its letter, and long before the Coach filed his appeal to CAS).

FIFA never violated the Coach’s right to due process. FIFA is not an enforcement authority; as such power is exclusively reserved for the State. FIFA exercises the disciplinary power of a private association under Swiss law, to ensure that its members comply with its regulations. Furthermore, the decisions issued by the Disciplinary Committee throughout the process were taken within the average timeframe as in other cases, therefore without any unreasonable delay, and FIFA had therefore never violated the Appellant’s due process rights.

According to Article 21(3) FDC, the reinstatement of the sanctions that had been provisionally suspended is not mandatory. The use of the term “may” portrays the reinstatement as a mere possibility, allowing FIFA to exercise its functions as it deems reasonable. However, under the circumstances of the case, the reinstatement of the sanction would have been unreasonable and excessive, and even prejudicial for all affected parties, i.e., the Coach, FEGUIFUT, FIFA and CAF.

FIFA therefore never breached the Appellant’s fundamental rights, as the right to the enforcement of an arbitral award is not guaranteed by FIFA, as FIFA is not an enforcement authority. In addition, the ability to amend or suspend disciplinary measures is conferred to the Disciplinary Committee by the FDC, so such action cannot constitute a breach of the Appellant’s fundamental rights.

Finally, on the merits, should the Appealed Decision be declared null, such declaration shall only have ex nunc effects, i.e., from the date its nullity is declared. The Appellant has not adduced a legal basis in support of his request to apply ex tunc effects to the alleged nullity of the Appealed Decision, aside from referring to an obsolete and non-binding CAS award.

2.1.4. The Appellant’s claim for damages

2.1.4.1. The Appellant’s position

According to the Appellant, the Appealed Decision has caused him moral damages that must be repaired by FIFA, jointly with FEGUIFUT, in accordance with tort liability under Swiss law. As per the Coach, in the case at hand, the requirements for the reparation of his damage were met, namely by:

a) The violation of the victim’s personality rights, based on (i) the illegal actions of the Disciplinary Committee, which breached his due process rights, (ii) the damage to his mental and psychological integrity due to the denial of the enforcement of a payment that he had been awaiting for six years, (iii) the damage to his reputation due to the defamatory public statements by FEGUIFUT and the Equatoguinean Government during the proceedings.

b) A proven illegal action, which was FIFA’s refusal to reinstate the Sanction and its unjustified decision to close the proceedings, in a clear abuse of rights and power.

c) The existence of moral damage, which was proven by the report of Dr. Luis Javier Irastorza Egusquiza (the “Expert”, whose report shall be referred to as the “Expert Report”). The Appellant suffered stress arising from the denial of his right to an effective judicial remedy, and to being subjected to unjustified delays.

d) The existence of a causal link, which is also established through the Expert Report.

e) The damage has not been otherwise remedied by the perpetrator (FIFA).

According to the Appellant, because all of the above requirements were met, he was entitled to be compensated in an amount of no less than the minimum amounts foreseen in the Expert Report, which could not be reduced in accordance with Article 44 of the Swiss Code of Obligations (“SCO”). In addition, another form of reparation is required under Article 49(2) SCO, consisting in a public written apology by FIFA and FEGUIFUT.

2.1.4.2. FIFA’s position

On this point, FIFA preliminarily contested CAS’ jurisdiction to award moral damages on appeal, when such claim was not the object of the proceedings before the Disciplinary Committee and in the absence of a specific agreement to arbitrate this issue.

Subsidiarily, FIFA recalled that, pursuant to CAS jurisprudence, when evaluating the evidence and deciding on a claim for moral damages, a modest and restrictive approach must be followed.

FIFA then turned to Swiss law to evoke the requirements which must be met in this context, such as: (i) the general requirements for moral damages to be found (i.e., violation of the victim’s personality rights, unlawfulness of the violation and a causal link between the act and the violation); (ii) that the damage caused be serious (i.e., surpassing a certain threshold); and (iii) that the damage has not been otherwise remedied by the perpetrator.

According to FIFA, none of these requirements were met in the Coach’s case, for the following reasons:

a) The Appellant was very unspecific as to what triggered the alleged violation of his personality rights and what exactly caused him moral damage.

b) The Appellant has not established that the right to due process, to moral and psychological integrity, or to his reputation would be personality rights under Swiss law.

c) There is no causal link between the moral damage claimed and the Appealed Decision. The moral damage adduced by the Appellant is practically linked in full to the prior actions undertaken in order to obtain a favourable decision against FEGUIFUT, as well as to the alleged defamatory public statements made by that federation’s authorities. The Appellant relies on the Expert Report, yet the aspects referred to in that report are not related to the Appealed Decision in itself.

d) FIFA did not incur in any unlawful behaviour, as Article 21(3) FDC allowed it to issue the Appealed Decision. Even if the latter were to be deemed illegal, it was justified by the preponderant interest of all affected parties: the Appealed Decision put FEGUIFUT in a position to obtain funds from its participation in the Preliminary Competition; it allowed FIFA to ensure respect with the CAS Award; it ensured the proper running of the Preliminary Competition by CAF; and, most importantly, it allowed the Appellant to obtain payment of the amounts owed pursuant to the CAS Award.

e) No serious moral damage had been established. The Expert Report was unreliable, as it was based on a legal evaluation under Spanish law carried out by an individual with no expertise in Law in general. In any event, the Expert qualified the alleged damage which he had found as “light”, and such damage was not even current. The Appellant misrepresented his Expert’s own conclusions.

2.2. The Panel’s decision

2.2.1. CAS Jurisdiction

As is generally the case in CAS appeal proceedings, the Panel first analysed whether or not CAS had jurisdiction to entertain the Coach’s appeal.

In particular, the Panel observed that, although the Parties did not contest CAS’ jurisdiction to decide on the challenge against the Appealed Decision, FIFA did put into question the Court’s competence in connection with the Appellant’s claim for moral damages.

The Panel also noted the Appellant’s arguments in favour of CAS jurisdiction to hear his claim for damages, which he found could not be dissociated from the legal action to annul the Appealed Decision and he was forbidden by the FIFA Statutes from turning to the ordinary courts of law.

When analysing the arguments submitted by the Parties, the Panel considered that FIFA was not challenging CAS’ jurisdiction per se (i.e., under Article 57 FIFA Statutes and Article R47 CAS Code), but FIFA’s objection was rather focused on the extent and limit of the Panel’s de novo power of review when deciding on the appeal, as per Article R57 CAS Code.

Therefore, the Panel found that whether or not one of the Appellant’s requests for relief is covered by the Panel’s scope of review under Article R57 CAS Code is an issue of admissibility rather than jurisdiction. The Panel therefore found that CAS did have jurisdiction to deal with the Coach’s appeal, without prejudice to its findings on the admissibility of the claim for moral damages.5

2.2.2. Admissibility of the Appeal and Claim for Damages

Turning to the question of the admissibility of the appeal, the Panel observed that FIFA had challenged the admissibility of the appeal “due to the [Coach’s] lack of standing to sue/appeal”, whilst admitting that both standing to sue and standing to be sued are questions on the merits, whose absence would lead to the dismissal of the appeal and not to its inadmissibility.

As a result, and bearing in mind that, according to Swiss law and as confirmed by CAS jurisprudence, the issues of standing pertain to the merits, the Panel rejected FIFA’s objection to the admissibility of the appeal on this ground, reserving its assessment on standing for its analysis of the merits of the appeal.

The Panel then turned to analysing the specific question of whether or not the Coach’s claim for damages was admissible in the context of its de novo power of review conferred by Article R57 CAS Code.

On this point, the Panel recalled that the object of the appeal was to challenge a disciplinary decision taken by FIFA, in which CAS acts as a second-instance tribunal with the de novo power to review the Appealed Decision (i.e., the provisional lifting of the Sanction). However, in the Panel’s view, such power does not allow it to decide on an independent claim from those that were assessed by the first-instance body. In this sense, the object of an appeal is the same as the one before the first instance, with CAS issuing a new judgment on the requests made by the parties in the previous instance.

The Panel thus found that there was no room for the Appellant to file requests which, although they may be a consequence of the decision to provisionally lift the Sanction, were not the object of the Appealed Decision in itself.

The above reasoning falls in line with consistent CAS jurisprudence on the issue, as expressly quoted by the Panel:

– CAS 2017/A/5195:

“79. However, the modification of the relief sought should be confined within certain boundaries. As held in CAS 2014/A/3523 (with reference to other cases), “[w]hile the de novo nature of the CAS Appeal Procedure allows a CAS Panel to take new facts into account, it does not free the Panel from the inherent constraint of any appeal procedure, which must remain within the scope of the first instance decision (cf., e.g., CAS 2007/A/1433, para. 36; CAS 2006/A/1206, para. 25). By deciding upon a decision which was not the subject matter of the first instance, the CAS Panel itself might be deemed to effectively decide as a first instance, thus exceeding its mandate.

80. As a general rule, the CAS traditionally considers that its power of review is limited by the object of the dispute such as delimited in the previous instance. Similarly, the Panel in CAS 2007/A/1426 stated as follows: “Although, pursuant to art. R57 of the CAS Code, a CAS panel has full power to review the facts and the law and to issue a decision de novo, when acting following an appeal against a decision of a federation, association or sports-related body, the power of review of such panel is also determined by the relevant statutory legal basis and, therefore, is limited with regard to the appeal against and the review of the appealed decision, both from an objective and a subjective point of view. Therefore, if a motion was neither object of the proceedings before the previous authorities, nor in any way dealt with in the appealed decision, the panel does not have the power to decide on it and the motion must be rejected.” (emphasis added).

– CAS 2020/A/7468:

“102. […] the scope of this appeal cannot exceed the limits of the scope of the Appealed Decision, and the fact that the Appellant made contractual arguments cannot cause standing to appeal when there is none” (emphasis added).

– CAS 2014/A/3776:

“343. With regard to damages, the Appellant requests the Panel to issue an order reserving judgment in respect of the loss and damage GFA has sustained by reason of FIFA’s wrongful failure to admit it to membership. The Panel observes, however, that this is a CAS appeal procedure seeking the reversal of a decision of FIFA, and that the Panel may rule only on the dispute as defined by the Appealed Decision and as limited by its objective and subjective scope (see CAS 2005/A/835 & 942, CAS 2006/A/1206, CAS 2013/A/3314). If GFA wishes to seek damages against FIFA, it will have to start a new and different legal action. Accordingly, the Panel dismisses the Appellant’s motion for relief under para. 280.7 of the Appeal Brief (see supra at para. 188).” (emphasis added).

Addressing the Appellant’s arguments on this issue, the Panel found that although the Coach argued that the claim for damages could not be separated from the action to declare the Appealed Decision null, according to the applicable regulations and CAS jurisprudence, this is not a criterion that would justify that the specific claim would be included within the Panel’s powers.

The Panel additionally noted that the claim for damages was not limited to those caused by the alleged unlawfulness of the Appealed Decision, as it referred to alleged moral damages that would have arisen from an unlawful action of FIFA or FEGUIFUT from the moment of the Termination of the Coach’s employment in 2017 until the Appealed Decision was rendered. In the Panel’s view, the foregoing showed that the claim for damages before it went beyond the scope of the appeal against the provisional lifting of the Sanction through the Appealed Decision, as it was not only directed against FIFA but also against FEGUIFUT.

As a result, the Panel concluded that, while the appeal was filed on time and was therefore admissible, the claim for damages was inadmissible.

The Panel’s analysis on how the new claim for damages was to be assessed in the context of both an objection to the jurisdiction of the court and the admissibility of the claim itself is of particular interest, especially when considering that issues of jurisdiction and admissibility are at times closely linked. As found by another CAS panel in the past, such “discussion is mostly of academic nature, because regardless of the categorization applied, the material outcome […] would be the same, i.e. the substance of the appeal would be entertained or not.”6

In the case at hand, the only practical difference from the Panel’s conclusion that the claim for damages was inadmissible is that the scope of review of Swiss Federal Tribunal (“SFT”) is more restricted when it concerns an issue of admissibility; whereas the SFT would have full power to review an appeal against a denial of CAS’ jurisdiction pursuant to Article 190(2)(b) of the Swiss Private International Law Act.7

2.2.3. Merits of the Appeal

As advanced, because the Appellant’s standing to appeal is a matter pertaining to the merits of the case, the Panel decided to preliminarily address this issue, as its findings would determine whether or not the remaining substantive questions (CAF’s mandatory standing to be sued, the Disciplinary Committee’s power to provisionally lift the Sanction and any eventual legal consequence of the Appellant’s claims) should be dealt with.

In its analysis on standing to appeal, the Panel first referred to the jurisprudence of the SFT8 and recalled that a party will have standing to sue if it has an interest worthy of protection, be it financial or sporting, consisting in the practical usefulness that the annulment of the appealed decision will have for the appellant. The appellant’s interest in such case must be current, that is, it must exist not only at the time the appeal is lodged, but also when the decision is issued on appeal.

The Panel noted that the Parties were in agreement that the Coach had been paid all of the amounts owed to him, including interests, without any financial claim remaining from the CAS Award whose compliance had been requested through the disciplinary proceedings in FIFA. Because of this, the Panel agreed with FIFA’s position that the Appealed Decision had ceased to have any effect in light of the full payment of the debt. This conclusion applied not only to the Appealed Decision, but also, in fact, to the disciplinary process as a whole, which had become moot. Indeed, the latter’s goal was the imposition of disciplinary measures due to the failure to comply with the CAS Award and the consequent breach of FIFA’s regulations. Once the CAS Award is complied with, no object remains.

The Panel highlighted that the Appellant has never claimed to have a financial or sporting interest in the exclusion of FEGUIFUT from the Preliminary Competition beyond obtaining the payment of the amounts which were finally paid to him. Therefore, since the factual circumstances have changed since the Appellant filed his appeal, no longer being a creditor of FEGUIFUT, it was clear to the Panel that the Coach no longer had a direct interest in the annulment of a moot disciplinary decision.

In this sense, even the Sanction itself informed FEGUIFUT that “should the amounts due to the Creditor be paid prior to the preliminary draw to the FIFA World Cup 2026TM, the Equatorial Guinean Football Association may be reinstated in said competition.” In the Panel’s view, the foregoing established that the object of the imposition of disciplinary measures exists only when the non-compliance remains.

Turning to the Appellant’s argument that the object of the appeal would have been to have the Appealed Decision declared illegal, which would then allow him to claim moral damages, the Panel observed that the annulment of the Appealed Decision no longer had a practical usefulness for the Coach, due to the Sanction having become moot. Should the Panel have decided to annul the Appealed Decision, it could either replace it with a new one, which would have no usefulness because the ultimate objective pursued was compliance with the CAS Award, or it could send the case back to the Disciplinary Committee, so that the latter could impose new sanctions or reinstate the Sanction, which would also be impossible because the basis for the disciplinary proceedings had disappeared.

More importantly, the Panel considered that the Appellant could not rely solely on having an interest in the declaration of the illegality of the Appealed Decision. For the Panel, the object of the arbitration was the alleged nullity of the Appealed Decision and the reinstatement of the Sanction. Pursuant to Article R57 CAS Code, the Panel “may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance.” Therefore, it was not possible for the Panel to issue an award limited to declaratory effects, since they were not properly part of the CAS proceedings.

The consequence of the foregoing was that the Appellant’s interest in the appeal could not be limited to the declaration of illegality, but also to its practical effect, i.e., the financial and sporting interest in the Sanction being reinstated. Should the Appellant’s current interest have been the declaration of illegality of FIFA’s actions when taking the Appealed Decision, he should turn to the relevant legal recourse to that effect.

As a final consideration on standing to appeal, the Panel observed that the moral damages claimed by the Coach did not arise from the Appealed Decision in itself. The Coach had argued that the moral damages were caused by FIFA’s actions and omissions during the disciplinary proceedings. However, according to the Expert, the moral damage claimed would have been caused by the situation following the Coach’s dismissal by FEGUIFUT, which should have been claimed in the first arbitration proceedings with FEGUIFUT (i.e., those which led to the CAS Award).

As a result, the Panel did not find that the Appellant’s claim for moral damages would result in the existence of a direct and current interest in the annulment of the Appealed Decision and the reinstatement of the Sanction. In fact, FIFA’s alleged liability for damages could have been claimed by the Coach in the relevant forum, without the need for the Panel to annul the Appealed Decision and reinstate the Sanction.

This author notes that the above is in line with the case law of the SFT according to which the intention of filing a potential claim for damages at a later stage is not sufficient to grant standing to appeal.9

In the absence of any practical usefulness in the Appealed Decision being set aside, the Panel decided that the Appellant lacked standing to appeal, and the appeal was therefore rejected. As a result, the Panel did not need to entertain the remaining issues of merit raised by the Parties.

For the sake of completeness, we note that the Panel’s conclusion in this matter is in contrast with the findings of other CAS panels who found claims for damages filed for the first time at the CAS appellate stage to be admissible (without prejudice to their actual merits).10 Nevertheless, this author shares the view of the Panel in this case, as such claim for damages which were not filed before the previous instance evidently fall outside of CAS’ scope of review in the context of an appeals arbitration, which shall be limited to the scope of the appealed decision and the proceedings which led to it.

3. Conclusions

The award summarised above provides an interesting perspective on a number of issues which, although not frequently dealt with in CAS proceedings, may require a thorough assessment from the relevant panels.

The Panel’s assessment on whether a claim for moral damages that had not been part of the previous instance proceedings would fall within its de novo power of review is of particular interest, as it establishes not only that such claims are inadmissible at the CAS level (if beyond the object of the appealed decision), even if CAS would, in principle, have jurisdiction to hear them. This distinction between jurisdiction and admissibility would also be relevant in the context of a potential challenge against such determination to the SFT, as the inadmissibility of a claim does not constitute a reason for challenging an award under the provisions of the Swiss Private International Law Act.

Additionally, particular importance must be given to the Panel’s analysis on the issue of standing to appeal, which was thoroughly carried out by reference to both Swiss jurisprudence and CAS’ own case law. Especially in line with the former, the Panel rightfully concluded that once an appeal (i.e., the annulment of the appealed decision) has become moot during the arbitral proceedings, the appellant’s mere (residual) interest in the appealed decision being declared illegal or in claiming moral damages is not sufficient to (continue to) grant him standing to appeal. This because, once the object of the appeal has disappeared, the appeal itself loses all practical usefulness for the appellant as far as the appealed decision is concerned, and any other alleged interest can by no means be considered direct.

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