Written by Nafiz Ahmed Momen Vaia For the last 2 days, I am hearing from the Sports Journalists that Coach Lodewijk de Kruif will file a complain against BFF to FIFA!! Is it so? I dont think so a coach of his stature who is having UEFA Pro license will comment such thing. He should know the procedure.He needs to go to CAS, not FIFA. However, you(who have keen interest) can have a look my write-up which I sent to BFF in the morning(Its pretty long) ________________________________________________________ The dispute between Coach Lodewijk de Kruif & Bangladesh Football Federation (BFF) Termination of the employment contract between a coach and his Federation CAS jurisdiction Preface: The Court of Arbitration for Sport (CAS) is an institution independent of any sports organization which provides for servic¬es in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the¬ specific needs of the sports world. The CAS was created in 1984 and is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS). The CAS has nearly 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law. Around 300 cases are registered by the CAS every year. Now what if Coach Lodewijk de Kruif has taken his dispute with the Bangladesh Football Federation(BFF) to the Court of Arbitration for Sport, CAS based in Lausanne, Switzerland to seek redress and possible reinstatement or compensation? Possible Solution and what law says: 1. For CAS to have jurisdiction, it is necessary that either the parties explicitly agree to submit their dispute to CAS arbitration, or that the statutes or regulations of the body issuing the appealed decision foresee a possibility of appeal before CAS. 2. No jurisdiction of CAS is created when a decision states that no disciplinary sanction is to be imposed on the appellant because of his filing of an appeal with CAS. Such decision of the national association disciplinary bodies is not an acceptation of jurisdiction of CAS, but merely a decision about the disciplinary consequences of the legal action of the appellant on addressing the CAS. 3. There is no international dimension in a conflict between the National coach and the BFF. Therefore, the rule of the BFF regulations should be stating that(please note, ‘should be stating’) “Applications against decisions by the Arbitration Board on any conflicts of Sportsmen, Technical Directors and Trainers arising out of the contracts and that involve international dimension can be made to the Court of Arbitration for Sports” is not applicable. 4. The termination of the contract by the Appellants (here 2 persons including Rene, Assistant Coach) were unlawful and practically a breach of contract, and therefore BFF had to pay back to the Respondent an amount USD 80,000(remaining 4 months’ salary). Now, here both coaches may ask in both instances before the BFF that he should be paid the remaining USD 80,000 of their contract and above that a compensation of USD 100,000(just a figure, it may increase) is due because of unjust termination by the Respondent. 5. Then the CAS Court office informed the BFF of the appeal filed by the Appellant and invited the BFF to declare whether it wanted to participate in the present procedure or not. The BFF should submit an answer to the CAS Court Office on the basis of article R55 of the Code of Sports-related Arbitration (the “CAS Code”), whereby it requested to intervene in the present procedure and alleged the lack of jurisdiction of CAS in the present arbitration procedure. 6. The CAS Court Office informed the parties that it had granted the request for intervention filed by the BFF and that the Panel would discuss the issue of jurisdiction at the beginning of the hearing. The hearing will be held at the CAS headquarters in Lausanne (the associated cost has to bear by both parties). LAW 1. As the CAS is an international tribunal having its seat in Switzerland and since none of the parties has its domicile or habitual residency in Switzerland at the time the arbitration agreement was concluded, pursuant to article 176 of the International Private Law (PIL), chapter 12 (articles 176 to 194 of the PIL) is applicable (see CAS 2005/A/983 & 984, marg. No. 61 & CAS 2006/A/1180, marg. No. 7.1.). 2. As article 186 PIL states that “le tribunal arbitral statue sur sa propre competence”, CAS is competent to rule on its own jurisdiction. Finding and important points in favor of BFF: 1. BFF should remember, It is therefore clear that for the CAS to have jurisdiction, it is necessary that either the parties explicitly agree to submit their dispute to CAS arbitration, or that the statutes or regulations of the body issuing the appealed decision foresee a possibility of appeal before CAS. 2. There is no arbitration clause in favour of CAS in the said employment agreement ( I assumed that). Therefore, the Panel AS will have a possibility to conclude that there is no agreement between the parties about CAS arbitration (BFF will win in that case). He was out of country for 224 days and if the agreement clearly stated nothing against it, then there is less likely BFF can win. 3. The CAS Panel will underline that(possibility) – where no agreement on arbitration is given – it is only with a legal basis in the applicable rules of an association that the CAS can be held to have jurisdiction. 4. Furthermore the CAS Panel has to underline that for the purposes of ruling on its own jurisdiction, according to article R47 of the CAS Code, the Panel has only taken into account the BFF regulations produced to the file, as the appeal is only directed against a decision of the BFF and not directed against a decision of FIFA or against FIFA itself (very important point). 5. If the FIFA had been a party and a FIFA decision declining to decide on the matter had been challenged, the Panel would have taken into consideration FIFA Statutes and regulations to rule on a jurisdiction. Alternative Solution: Mediation Mediation is a procedure by means of which parties seek, with the help of a third party, called a mediator, to find an amicable solution to their dispute. It is distinguished from arbitration essentially by its non-formalistic nature, the parties’ control over the proceedings and the absence of enforceability of the agreements signed by the parties. Advantages of Mediation: 1. It is adapted to sport Mediation is an alternative method of settling disputes which has produced convincing results in countries where it is applied. Its introduction to sport is an important innovation, as it constitutes a natural extension to and protection of the rules which govern fair play and the spirit of understanding. Choosing mediators who are specialists in sport and negotiation promotes the finding of concrete settlements to disputes by offering solutions adapted to the context of sport. 2. It is simple and flexible The mediation procedure is not formal. In principle, the parties choose their own mediator by mutual agreement, and establish the rules governing how the procedure is to be conducted. 3. It is quick Mediation proceedings normally take 90 days from the time the request is made. An extension to this may be authorised only by the CAS President for valid reasons. This very short time frame is a means of avoiding negotiations used as delaying tactics by one party acting in bad faith. Moreover, the fact that the mediation and arbitration are placed under the same jurisdiction makes it possible to move from one to the other in the event of failure, which has clear advantages (time saving, lack of additional formalities, etc...). 4. It is confidential The parties, the mediator and anyone else involved in mediation proceedings are bound by a strict duty of confidentiality. No information derived from the proceedings may be used before another arbitral or judicial body, subject to the provisions of the law. Only the settlement can be brought before one of these bodies in the event of failure by one of the parties to honour its commitments. 5. It is inexpensive One of the aims of the CAS is to make available to the members of the international sporting family an instrument for resolving disputes which is not just fast, but also inexpensive. In the framework of the mediation, the parties pay the costs and fees of the mediator (calculated according to the CAS table of fees), part of the costs of the CAS and administrative fees fixed at SFr. 500(Around BDT 41,000) for each party. sam
Posted on: Mon, 20 Oct 2014 09:37:34 +0000
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