01.05.2022
On 1st July 2021, a new edition of the Procedural rules governing the UEFA Club Financial Control Body came into force, coming along with substantial changes not only to the organization of the CFCB but also to the proceedings before it.
Some of the most notable amendments of the new Procedural rules are the following:
- Amendments concerning the organization and jurisdiction of the CFCB
i) Under the new rules, there is no investigatory chamber and adjudicatory chamber, but the CFCB is now divided into the First Chamber and the Appeals Chamber (Art. 3). While, under the previous regime, the investigation proceedings and the adjudicative proceedings were two separate functions entrusted to different bodies (the investigatory chamber and the adjudicatory chamber respectively), under the 2021 edition, the investigation process, the collection of evidence and the adjudicative procedure are all entrusted to the First Chamber (Art. 5). The Appeals Chamber is only competent to hear appeals against decisions made by the First Chamber (Art. 5 par. 2), except for, amongst others, decisions on exceptions to the 3-year rule and decisions in particularly urgent cases.
Remark: These amendments provide a more clear context regarding the responsibilities of each body and the procedure in general, while introducing a second level of judicial assessment through an internal appeals process.
ii) Settlement agreements (Art. 15) are expressly a responsibility of the First Chamber. While, previously, a Settlement agreement could include two specific financial and sporting measures, now, it may include any of the disciplinary measures listed in Article 29 (reprimand, fine, deduction of points, prohibition on registering new players, withdrawal of a title or award etc.).
Also, under the previous regime, if the defendant proved that it had fulfilled the obligations set out in a settlement agreement, the CFCB could, upon request, amend the terms of the agreement for the following sporting season. In the new Procedural rules, there is no such provision. Finally, under the new Article 15 par. 3 (g), the First Chamber has the power to impose disciplinary measures in case of non-fulfillment of the settlement agreement, a power previously entrusted to the adjudicatory chamber.
Remark: Important to note that a) there are more specific – and probably harsher – measures for non-compliance with a settlement agreement and b) compliance with a settlement agreement may not have positive implications for the next season, a step taken probably after the experience of the Chamber regarding settlement agreements of previous years.
iii) Article 16 of the new Procedural rules introduces the term of “urgent cases”, regarding especially those relating to admission to UEFA competitions. In such cases, the First Chamber is empowered to take final decisions with a direct right of appeal to CAS.
Remark: An interesting introduction, though the lack of a specific definition of “urgent cases” may generate some frictions and lead to disputes before CAS.
2. Amendments concerning the proceedings before the CFCB
i) There is no longer provision for interveners.
Remark: An amendment in order to simplify the procedures, though interventions are allowed to affected parties before CAS.
ii) Substantial new facts or evidence submitted for the first time by the appellant before the Appeals Chamber may be excluded by the latter, at its discretion, if they were available to or could reasonably have been discovered before the appeal proceedings (Art. 18 par. 3). A similar provision is also provided for the proceedings before CAS (Art. 34 par. 3).
Remark: This is an important amendment, in line with R57 CAS Code provision on evidence submitted before the SGBs’ judicial bodies and the evidence later submitted before CAS.
iii) Article 22 introduces also the duty of the defendant/appellant to fully cooperate with the CFCB, which has the express right to draw adverse inferences if a defendant/appellant fails to fulfill its duty of cooperation.
III. Other amendments
i) Article 6 of the new rules regarding the independence of the members of the CFCB, now also requires their impartiality. Similarly, under Article 9 par. 2 of the 2021 edition of the rules “A member of the CFCB must disclose any circumstance that might give rise to a conflict of interest and/or be of such a nature as to compromise the impartiality or independence of such member in the eyes of any of the parties”.
Remark: This is a welcome amendment after the notorious Man. City case.
ii) Recidivism is provided under the new rules and counts as an aggravating circumstance (Art. 26).
iii) Under the previous regime, final decisions containing, among others, the grounds and the operative part of the decision, were notified to the defendant. Under the new rules, the defendant/appellant is first notified of the operative part of the decision and can, within five days following the notification, request in writing a reasoned decision (Art. 32 par. 2).
iv) Article 37 of the new rules regarding the statute of limitations now states that “opening of proceedings” (in accordance with art. 12) for any breach of the UEFA CL and FFPR is barred after five years.
Remark: This is an important amendment that gave clarity on the matter given that the vague provision of “prosecution” provided in the former editions of the CFCB Procedural rules has given rise to disputes before CAS on this matter.
v) French is no longer an official language of proceedings (Art. 39).
vi) A new Article 43 provides the equal treatment of men and women before the CFCB.