FIFA’s new Disciplinary Code offers intermediaries tools to enforce their claims
In 2015 FIFA announced in Circular no. 1468 that ‘FIFA will not be competent to hear disputes involving intermediaries’. Recalling art. 64 FIFA Disciplinary Code (FDC) 2017:
“Anyone who fails to pay another person (such as a player or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee or an instance of FIFA or a subsequent CAS appeal decision (financial decision), or anyone who fails to comply with another decision (non-financial) passed by a body, a committee or an instance of FIFA, or by CAS (subsequent appeal decision)….”
This meant that intermediaries, when confronted with a failure by their counterpart to respect a CAS decision, were not able to invoke art. 64 FDC, and thus could not pressure their counterpart to fulfil their legal duty by imposing FIFA sanctions.
With the changes of the new art. 15 of the FDC 2019 this might change in a positive way for the intermediary. Art. 15 of the FDC states that:
“Anyone who fails to pay another person (such as a player, a coach or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee or an instance of FIFA or a CAS decision (financial decision), or anyone who fails to comply with another final decision (non-financial decision) passed by a body, a committee or an instance of FIFA, or by CAS”.
This means that the Disciplinary Committee (DC) will not only be able to apply disciplinary sanctions with regard to CAS appeal decisions, but now as well in case of CAS ordinary decisions. Moreover, in art. 3 of the FDC 2019 (the scope of personal applications), intermediaries are mentioned under f. This, in combination with the new wording of art. 15 of the FDC 2019 can be considered to have as a consequence that intermediaries are able to invoke disciplinary sanctions on debtors who fail to respect a final CAS decision rendered in the context of an ordinary proceeding.
However, it must be taken into account that disciplinary measures shall only be imposed provided that the respective CAS procedure has started after the entry into force of the FDC 2019. In which the imposition of sanctions on the basis of the FDC 2019 shall be handled in practice, depends on the view of the arbitration panel / Disciplinary Committee in the relevant individual dispute.
Whatever the consequence will be in individual cases in the near future, the recent changes offer enough confidence to believe that intermediaries will indeed be able to request for disciplinary sanctions in case of non-fulfilment by their counterparts of their legal duties after a decision. Therefore, intermediaries will now have an extra tool to put legal pressure on debtors who fail to respect decisions.