Soccer Law and Business Journal

High Court Enjoins West Ham Appeal to CAS

The High Court has granted a temporary order barring West Ham United from appealing an FA arbitration ruling to the Court of Arbitration for Sport.  In ruling for West Ham, the Court found that West Ham's appeal to the CAS constituted a breach of the agreement between it and Sheffield United to enter into binding arbitration.

According to ESPN soccernet, the court has also set a hearing for early next year to decide whether to make the order permanent.

As has been chronicled extensively on this blog, the case involves West Ham's controversial use of Argentine international Carlos Tevez during the 2006-07 season.

CAS: May Hear West Ham Appeal After All

Despite CAS' recent pronouncement that it lacked jurisdiction to hear West Ham's appeal in the Carlos Tevez matter, CAS announced today that it has opened an arbitration proceeding in the case.

CAS will decide, as a threshold matter, whether or not it does in fact have jurisdiction to hear the case.  A statement from CAS read: "The CAS has initiated an arbitration procedure and will first examine its jurisdiction as a preliminary issue after both clubs have had the opportunity to file written submissions on this point.  For the moment, no decision has been made with respect to the holding of a hearing.  In any event, a decision on jurisdiction is not to be expected before the end of November 2008. "

West Ham argues that the England FA rules, under which the FA arbitration panel ruled against it in the matter, would violate FIFA statutes if they do not permit appeal to CAS.

Sheffield United, in opposition, argue that CAS has previously held that it lacked jurisdiction in a prior case decided under FA rules.

CAS Announces It Cannot Hear West Ham Appeal

As predicted here yesterday, the Court of Arbitration for Sport has announced that, unless Sheffield United agrees to an arbitration, there is no basis for CAS to hear West Ham's planned appeal of an FA arbitration panel's decision in the Carlos Tevez matter.

CAS Secretary General Matthieu Reeb told the BBC, "As things stand, CAS would not be able to hear this case.  We would need agreement from Sheffield United and for Football Association rules to allow an appeal to CAS."  While not saying so explicitly, Reeb's comment suggests that the CAS interprets FA Rule k5c as precluding "any right to appeal [or] review." 

It appears that West Ham will, nonetheless, submit a statement of appeal to the CAS in hopes of overturning the FA panel's ruling.

The initial ruling in the case was limited solely to establishing liability on the part of West Ham.  The FA panel is expected to hold a second hearing on the matter, in early 2009, on the issue of damages. 

West Ham Plan Appeal to CAS

West Ham United will appeal to the Court of Arbitration for Sport (CAS) to seek relief from the ruling of an FA arbitration panel in which it was found liable for damages to Sheffield United resulting from its fielding of ineligible players during the 2006/07 season.  The club made the announcement today after consulting with its legal counsel.

One obstacle facing the club is FA Rule k5c, which states that when clubs agree to arbitration "the parties shall be deemed to have waived irrevocably any right to appeal, review or any recourse to a court of law."  One leading sports attorney interviewed by the BBC stated that this rule may not prevent West Ham from appealing to the Court of Arbitration for Sport.  The unnamed attorney stated "Rule K5c says you cannot seek redress before a court of law. CAS in not a court of law but a tribunal."

However, this analysis might not be the last word on the matter.  A closer look at Rule k5c shows that its language can be parsed as follows: "the parties shall be deemed to have waived irrevocably any right to....  review."  This is followed by "or" which suggests that the clause which follows, "any recourse to a court of law," is considered an entirely separate type of review, and is not the exclusive form of review prohibited by the rule.  Read together then, the Rule seems to prohibit in-court review, clearly, but also prohibits any form of review. 

Ultimately it will be up to CAS to determine whether or not it should hear the matter.  Under CAS rules, the parties either have to agree to have their matter heard, or there has to be a contractual or statutory basis for appealing to CAS.  If all West Ham has going for it is the language of FA Rule k5c, it would appear that they face an uphill battle to have CAS hear their appeal.