While most football fans have been focused on Europe’s big leagues and the Champions League, the most significant thing happening in football this year might very well be the FC Sion vs UEFA dispute. What began as simply a matter of deciding a spot in the Europa League has now far surpassed the dimension of this competition and threatens to change football forever. FC Sion and UEFA are locked into a fierce legal battle and, should Sion win it (and perhaps even if they don’t), it might have a bigger impact than even the Bosman ruling in the 90s, in what was the last high profile civil law vs sports law conflict. The outcome of this legal battle between Sion and UEFA will surely have an immense impact on the sport’s future, more than most can imagine.
Let’s revisit the entire saga as briefly as possible and analyse its possible implications:
FC Sion, and especially their president Christian Constantin, are known to be a club who do not hesitate to defend their rights in a court of law. A few years ago, they managed to successfully appeal against their relegation into the second division and entered the league on matchday 14, catching up with on the missing games during the rest of the season, in what is the most notorious, yet not the sole instance in which Constantin and Sion won a legal battle. It is still nowhere near as big as their on-going battle against UEFA.
The current situation had its roots in 2008, when Sion was found guilty of encouraging Al-Ahly’s Essam El Hadary to break a contract with his club and sign with Sion for free. As a consequence, FIFA enforced a transfer ban for two transfer windows. Sion appealed against the decision with the Court of Arbitration for Sport (CAS hereafter) and the Swiss Federal Court, but both actions were rejected in June 2010 and January 2011 (two transfer windows as the suspension indicated).
Three months later, in May 2011, Sion sent a letter to FIFA asking if, since the two transfer windows had already gone by, they could sign players in the following transfer window. FIFA denied and Sion once again appealed but got rejected by CAS. Even though the president and the manager were fully aware of the ban, they ignored it and signed six new players in the summer – Pascal Feindouno, Mario Mutsch, Gabri, Jose Goncalves, Stefan Glarner and Billy Ketkeophomphone. The Swiss FA naturally blocked those moves, but the club and the players took action, claiming that such block violated their rights, and the civil court made a provisional injunction authorizing said players to play for Sion.
UEFA warned Sion that they’d risk disqualification from the Europa League if they used any of those six players in their playoff tie against Celtic. But with that court authorization on their hands, Sion didn’t comply. The players in question were used and Sion ended up beating Celtic over two legs, earning a spot in the Europa League’s group stages. Expectedly, UEFA didn’t take long to exclude them and that’s where the legal battle started.
Sion’s two appeals to UEFA were rejected, unsurprisingly, so they went to their hometown’s civil court once again and filed for an injunction, which the court refused claiming that it was not their responsibility. So they tried at the civil court of Vaud, where UEFA’s headquarters are situated. This court made a provisional injunction and decided that Sion must be reinstated in the Europa League, ordered UEFA to pay FC Sion’s court costs and imposed a daily fine (1,000 Swiss Francs, the maximum penalty) for each day of noncompliance. But UEFA refused to obey the court’s orders, claiming that they had no chance for a statement in front of the court.
This obviously generated a lot of controversy. The main question arisen by such noncompliance is: Can UEFA ignore the decision of a civil court? Can sports law really supersede civil law in a case like this? This is a very complex question and there’s still no definite answer as of today, but the fact that it was a Swiss court making the decision only adds to the problem. Both FIFA and UEFA have their headquarters in Switzerland and thus must obey the Swiss law; in fact, even article 64 of the UEFA statutes clearly states:
These Statutes shall be governed in all respects by Swiss law.
There’s a distinct possibility that UEFA’s decision of not reinstating Sion was illegal, thus making the entire 2011/2012 Europa League invalid. Following the court’s decision and UEFA’s refusal to follow it, both parties involved took action; Sion’s president filed a criminal complaint against UEFA and tried to talk the Swiss government into taking away all of UEFA’s benefits (namely tax exemption) claiming that their refusal to fulfill the injunction meant that they did not accept or respect the Swiss law. Platini, on the other hand, fearful that other teams could follow suit in the future and sue UEFA, went to the European Union asking the European Comission president Durão Barroso to create an exemption for UEFA from civil lawsuits.
“I know the clubs will take us to court,”, said Platini
“It’s the first thing they will do.
“That’s why I went to Durão Barroso and asked him for judicial protection.
“I told him: ‘If you believe in what I’m doing for football, then you have to protect me, otherwise it’s going to be difficult.”
UEFA also delegated the final decision on this matter to CAS, who recently announced their verdict, upholding UEFA’s decision to ban Sion from the Europa League and ordering the latter to pay UEFA 40,000 Swiss Francs for their legal costs. But the Swiss club hasn’t given up yet, rather far from it:
“The CAS does not offer any guarantee of independence (in particular, how it chooses arbitrators) and violates several standards of national and international law,”, said a Sion’s spokesman.
“The verdict makes stronger our feeling of the servility of the CAS to the powerful football authorities. It confirms our belief that now it becomes urgent to change the functioning of that court, which ultimately is not one,”
“We are now taking the case in front of Swiss Federal Court (the CAS recognises its authority), and then the European Court.”
Although UEFA and FIFA statuses specify that clubs can only use sports arbitration courts, Sion’s president Constantin firmly believes that these courts are not independent and that he stands a better chance at a civil court. This case has gone far beyond a simple Europa League spot and poses questions that might change the game forever: first and foremost, the use of civil or sports arbitration courts in football and, of course, whether UEFA can override civil law, as they did when they ignored the injunction of the Vaud court.
Sion are ready to take this case to the very last legal instances, in what promises to be the most influential case of civil law vs football law since the Bosman case, and might actually change football even more than the Bosman law did back in the 90’s, if Sion manage to win of course.
Piermarco Zen-Ruffinen, a sports lawyer at the University of Neuenburg, said:
“If UEFA loses that case there will be an explosion. In the Bosman case it was only about free movement of people. Now UEFA risks being convicted of abuse of a monopolistic structure. No one can predict the dimension of such a sentence”
A potential Sion win would change football forever. It’d allow clubs to sue UEFA/FIFA in front of a normal court, with all the consequences that it would bring. More importantly, the days of FIFA and UEFA being almost above the law – as they can currently do whatever they want and are accountable to nobody – would be pretty much over. Many football fans suspect that the sport’s governing bodies aren’t exactly the most honest and transparent organizations; those fans will surely be rooting for Sion in this dispute. A potential Sion win would mean that UEFA and FIFA could be sued in front of a normal, independent court in the future, effectively ending their perceived (by some) dictatorship.
Aware of the danger, FIFA has been quick in taking action, although a very ethically questionable one. Football’s governing body has threatened to expel Switzerland from football if they fail to enforce a transfer ban on Sion by January 13, which would as an immediate consequence make Basel lose their place in the last 16 of the UEFA Champions League. FIFA demanded Sion to lose all the points they earned in the Swiss league with those players on the pitch; in short, they want Sion, who they rightly perceive as a threat, marginalized. The Swiss FA has already said that it is not their decision as only the courts can decide on that matter. Sion’s president, on the other hand, has compared Blatter to Gaddafi and has vowed to keep fighting.
The next chapter of this saga will come on January 11 when the Civil Court of Vaud will announce their decision on Sion’s appeal against the forfeit of the two playoffs games against Celtic, with a view to reinstate the club in the Europa League. Should they lose this one, FIFA’s threat to ban the Swiss FA from football will put pressure into Sion to drop the case altogether. (Then again, one must wonder how the Swiss government would react if FIFA did indeed execute this threat).
But knowing how resilient Sion are, they might very well choose to go the distance anyway, all the way to the European Court. It’s remarkable how such a modest club is the one to challenge football’s governing bodies in such a fierce manner. Whether they win or lose, they will have earned their place in football history as this is a case that will never be forgotten and will have lasting consequences regardless of the outcome. If they do manage to win, they’ll have changed the face of football forever.
The 2011/2012 Europa League will be concluded in May, but this dispute promise to last much longer. Unless Sion decide to drop the case, which seems unlikely despite FIFA’s bullying tactics, the next stop is the Swiss Federal Court.