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New CAS awards on the FIFA EPP Review Process

New CAS awards on the FIFA EPP Review Process

In the last 20 months, the FIFA Clearing House has been a hot topic amongst clubs, national associations and football law specialists.

Thousands of EPPs have been issued, while many final and binding EPP Determinations and Allocation Statements have been notified to training clubs and new clubs. Nevertheless, very few CAS or DRC decisions have been issued until today in relation to the EPP review process and generally about the new regime in the calculation and distribution of training rewards under the FIFA Clearing House Regulation.

Some months ago, we posted a brief on CAS 2023/A/9682, an award that engaged in an interesting analysis of the FIFA Clearing House Regulation. The key takeaway of this decision was that “the interpretation of the FCHR cannot reasonably lead to the establishment of an appeal mechanism which would allow a negligent club to rectify its failure to comply with the regulatory obligations and cooperation which form the basis of the EPP review process.”

Recently, two more awards were published by the Court of Arbitration for Sport regarding the EPP Review Process and the application of the FIFA Clearing House Regulation; CAS 2023/A/9730 and CAS 2023/A/9940 & 9941, both heard by the esteemed CAS Arbitrator and professor, Mr Ulrich Haas. These awards offer a different approach to that adopted in CAS 2023/A/9682 regarding the negligence of clubs during the EPP Review Process.

Facts of the Cases

Both cases concerned waivers that were not duly uploaded during the EPP Review process. 
 
In CAS 2023/A/9730, the new club uploaded a waiver from training rewards which was not translated in one of the official languages of FIFA. FIFA requested the Club, several times, to upload a translation of the waiver, stating that otherwise the document would not be considered in the Determination of the EPP. Nevertheless, a translated waiver was not uploaded. Eventually, on 25.05.2023, FIFA issued the EPP Determination and the relevant Allocation Statement, stating that the new club shall pay the Player a total amount of EUR 114,575.34.  After the issuance of the Allocation Statement, the training club issued a further waiver, waiving any amounts payable as training compensation, confirming its waiver before the FIFA Clearing House Department and CAS and waiving any request for the enforcement of the Allocation Statement before the FIFA Disciplinary Bodies.
 
Before CAS, FIFA argued – amongst others – that the Additional Waiver has no impact on the CAS proceedings because it was issued after the notification of the Appealed Decision and cannot rectify the Club’s failure to upload the correct document in TMS.
The main issue examined by the Sole Arbitrator was whether the waiver that was reintroduced before the CAS – and that was dismissed before FIFA – could be admitted and be examined by CAS, and that the Sole Arbitrator was limited to reviewing whether the Appealed decisions were correct.


In CAS 2023/A/9940 & 9941, two training clubs had waived their entitlement to training compensation against a 5% sell-on fee from potential future transfers of the Player, before the transfer of the Player to the new club. FIFA sent a reminder to the new club, requesting the club to provide any documentation relevant to the training compensation claim, including waivers or contract offers. Despite the above, the waiver was not submitted by the Club to FIFA. As a result, FIFA issued an Allocation Statement awarding the amount of EUR 90,876.72 to the training clubs. It shall be mentioned that in the context of the CAS proceedings, one of the training clubs informed FIFA that it had indeed reached an agreement with the Appellant and had waived the training compensation.

Before CAS, FIFA argued that the Club should be precluded from submitting before CAS new documents or any documents that could have been presented during the EPP process, otherwise, this would constitute a circumvention of the FCH system as a whole. FIFA also argued that, despite its de novo power of review, CAS should review whether the appealed decisions were correct on the basis of the information provided through the EPP process and evidence which could have been presented during this time, shall not be admitted.

 

 

Considerations of CAS

With reference to CAS 2018/A/5808, Prof. Haas stated that “evidence that was not presented or available before the first instance may be taken into account by the CAS unless the applicable rules and regulations dictate otherwise or unless Article R57(3) CAS Code applies.”  The Sole Arbitrator underlined that the applicable regulations (Procedural Rules of the Football Tribunal and the FCHR) do not explicitly or implicitly deviate from the de novo principle of art. R57(1) CAS Code.

The Sole Arbitrator found that the Club acted negligently by not providing a translation of the waiver even though he was invited to, but underlined that “justice is better served by admitting the evidence that was already available at the time when the Appeled decisions were issued.”

Finally, the Sole Arbitrator accepted that FIFA acted “factually and legally correct” when issuing the appealed decisions, nevertheless, the decisive reference date for the Sole Arbitrator’s assessment of whether FIFA acted correctly is the date of the hearing (or the date on which the parties were advised that the Sole Arbitrator would issue an award based on the written submission), at which time it was a fact that a valid waiver for training compensation existed by the training club.

With the above in mind, the EPP Determinations and the Allocation Statements were set aside in both cases.