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According to the principle of tempus regit actum, substantive aspects are governed by the regulations in force at the time of the relevant facts, while procedural matters are governed by the rules in force at the time when the procedural action occurs. Questions relating to jurisdiction are procedural issues as they relate to the procedure rather than the nature of the obligations arising from a legal relationship.
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Under Swiss law, the question of standing to sue or be sued will be reviewed ex officio. Standing to be sued refers to the party against whom an appellant must direct its claim in order to be successful. A party has standing to be sued only if it is personally obliged by the claim brought by an appellant. The question of who has standing to be sued is a question of the merits implying that if the respondent’s standing to be sued is denied, then the appeal, albeit admissible, must be dismissed.
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A challenge against an association decision must, in principle, always be filed against the association that issued the decision. This finding is however to be nuanced because: (i) an appeal in front of the CAS is quite different to a regular action for voidance in front of Swiss Courts under Article 75 of the Swiss Civil Code (SCC), and (ii) one must distinguish between different kinds of association decisions that warrant a flexible approach. This flexible approach consists in differentiating between decisions entailing a vertical element (“vertical disputes”) and decisions entailing a horizontal element (“horizontal disputes”) whilst acknowledging that some decisions may entail both vertical and horizontal elements.
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In cases where FIFA merely acts as the legal body rendering the lower-instance decision, i.e. in cases which do not involve FIFA’s disciplinary powers (so-called “horizontal disputes”), FIFA has the opportunity to participate in the CAS proceedings but is not a necessary party, nor the appellant has the burden to summon FIFA as a respondent in order for the CAS panel to adjudicate the issue of FIFA’s jurisdiction.
Such a situation does not differ from the situation in which a civil court, under the national laws and potentially international laws and directives such as the Lugano Convention and Brussels I Regulation, assesses its own jurisdiction. In the latter case, when a party does not agree with the ruling of a first instance civil court considering itself competent, and the party appeals such a ruling, it must not direct its appeal against nor include the first instance court as a respondent in its appeal. The same logic should apply to appeals before the CAS for what concerns purely jurisdictional issues.
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Although FIFA’s Circular Letters are not regulations in a strict legal sense, they are nevertheless relevant for the interpretation of the FIFA Regulations. However, FIFA’s Circular Letters cannot be allowed to take precedence over the clear and specific wording of FIFA’s regulations and a Circular cannot amend, override, change or contradict the FIFA Regulations.
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The FIFA NDRC Standard Regulations go beyond a mere interpretation of article 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players (RSTP). The FIFA NDRC Standard Regulations are not legally binding on the national associations and whilst they contain guidance and important principles to help ensure that the minimum procedural requirements are met, non-compliance with one or more of the recommendations contained in said standard regulations cannot lead to the conclusion that a national dispute resolution chamber (NDRC) does not meet the requirements contained in article 22 lit. b) RSTP.
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In the context of art. 22 RSTP , the requirement of whether a national dispute resolution chamber is an independent arbitral tribunal guaranteeing fair proceedings and respecting the principle of equal parity, is to be analysed in abstract terms. Whether a certain judicial body is competent or not to decide the dispute must be ascertainable for the parties before the claim is lodged and cannot depend on instances that arise during the course of the proceedings. Thus, what is required in the context of art. 22 of the FIFA RSTP is whether or not the procedural rules applicable before the national judicial bodies are such to enable a conduct of the procedure in a fair and equitable way.
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The principle of parity does not imply that the parties will, in all circumstances, be entitled to appoint all arbitrators when just one party does not exert more or different influence on the appointment of arbitrators compared to the other party. The mere fact that a national federation’s executive committee appoints the arbitrators does not necessarily imply that the principle of parity is not respected. For the principle of parity can also be respected if the parties had equal influence over the compilation of the arbitrator’s list from which the national federation’s executive committee appoints the members of the national dispute resolution chamber and/or equal influence over the nomination of the arbitrators deciding the case. However, if the club representation on the national federation’s executive committee enables the club representatives to exercise more influence over the compilation of the list of arbitrators when compared to that of the players’ representatives, the principle of parity is not respected.
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