Tema youth win case at CAS (III). Full details of the ruling

This is the continuation of the above case, the second part of which appeared on Page 7 of this paper last Monday. Court for Arbitration in Sports (CAS) 2015/A/4328 Tema Youth Football Club v Ghana Football Association

Court of Arbitration for Sport

(3) That Dreams FC be demoted to a lower division for fraudulent and fictitious registration of Daniel Gozar and John Owusu with the intention of concealing the true ages of the players and in the case of the former, to conceal 25% interest stakes Amidaus Professionals have in the player Daniel Gozarfor which the two clubs duly signed a binding Release Agreement to that effect in accordance with FIFA Regulations on Status and Transfer of player Annex 3 Article 9.4.

(4) In accordance with request No. 2 the Respondent shall be obligated to correct the 2014-2015 Division One League Table and Tema Youth Club be declared as eventual champions with 52 points and thus promoted to play in the First Capital Plus Premier League for the 2015-2016-league season.

(5) The Respondent shall be obligated to rectify the records of Daniel Gozar (Cudjoe Mensah) and John Owusu (Johnson Owusu Oppong) with Dreams FC to reflect their initial records in the Transfer and improper records uploaded by Dreams FC.

 Tribunal Arbitral du Sport CAS 2015/A/4328 Tema Youth Football Club v Ghana Football Association Court of Arbitration for Sport

(6) The rejoinder shall bear the costs of this arbitral proceeding and contribute an amount of the legal costs of the Appellant according to Article R64.5 of the Code of Sports-related Arbitration."

26. In accordance with Article R37 of the CAS Code, Tema also requested the following provisional measures:

"(1)    The execution of the Decision (and consequentially also of the decision of the Respondent of November 11 2015) shall be suspended until CAS has rendered its final decision in the Appeal Proceeding.

(2) Until final decision of the CAS, the Respondent shall postpone the start of the2015-2016 Ghana Premier League and the Ghana Division One League."

27. On I December 2015, the CAS Court Office wrote to Tema acknowledging receipt of the Statement of Appeal/Appeal Brief and advised Tema that in order to be able to initiate an arbitration procedure, Tema were required to complete their appeal by 4 December 2015 by providing the CAS Court office with the nomination of an Arbitrator, unless the appointment of a Sole Arbitrator was requested.

28. On   4 December 2015, Tema wrote to the CAS Court Office nominating Dr. Marco Balmelli, Attorney-at-Law, Basel, Switzerland as an arbitrator.

29.  On 8 December 2015 Tema filed a 'supplemental brief which was aimed at amending the Statement of Appeal filed on 30 November 2015, and sought to join Dreams and FIFA as Respondents as well as the GFA. This 'supplemental brief contained the following requests for relief:

"(1) The Decision subject to Appeal (including the decision of September 14, 2015 of the same Appeals Committee) shall be annulled.

(2) That pursuant to R44.4 of the CAS Code, the CAS order an expedited hearing in this matter in respect of which

(3) That an injunction issue, enjoining the commencement of the 2015- 2016 until a resolution of this matter.

(4) That an order issue, ordering the GFA and F1FA be joined as necessary and interested party Respondents.

(5 The Respondent shall be obliged to declare Tema Youth FC as winners of the match day 24 played at Kweiman with 3 (three) points and 3 (three goals) and a further deduction of 6 (six) points from the accumulated build-up of Dreams FC as stated under article 34 of the General Regulations of the Respondent.

(6) That Dreams FC be demoted to a lower division for fraudulent and fictitious registration of Daniel Gozar and John Owusu with the true ages of the players and in the case of the former, to conceal25% interest stakes Amidaus Professionals FC have in the player Daniel Gozarfor which tribunal Arbitral du Sport CAS 2015/A/4328 Tema Youth Football Club v Ghana Football Association

Court of Arbitration for Sport

Two clubs duly signed a binding Release Agreement to that effect with FIFA Regulations on Status and Transfer of player Annex 3 Article 9.4.

(7) In accordance with request No. 2 the Respondent shall be obligated to correct the 2014-2015 Division One League Table and Tema Youth Club be declared as eventual champions with 52 points and thus promoted to play in the First Capital plus Premier League for the 2015-2016-league season.

(8) The GFA shall be obligated to rectify the records of Daniel Gozar (Cudjoe Mensah) and John Owusu (Johnson Owusu Oppong) with Dreams FC to reflect their initial records in the Transfer Matching System (TMS) and not the fictitious and improper records uploaded by Dreams FC.

(9) The Dreams FC shall bear the costs a_{ this arbitral proceeding and contribute an amount of the legal costs of the Appellant according to Article R64. 5 of the Code of Sports-related Arbitration. "

30. In  accordance  with  Article  R37  of  the  CAS  Code,  Tema  also  requested  its Supplemental brief the following provisional measures:

"(1) The execution o.fthe  Decision (and consequentially  also of the decision of the [GFA] of November  11,  2015)  shall  be  suspended  and  the  2015/16  Ghana Premier shall be enjoined from commencing until CAS has rendered its final decision in this mailer. "

31. On 11 December 2015, the CAS Court Office wrote to the Parties acknowledging that the Statement of Appeal/Appeal Brief was completed on 9 December 2015, however advised Tema that the 'supplemental brief  was filed out of time as the time limit to designate a Respondent was the same time limit to file a Statement of Appeal. Accordingly, when Tema filed their 'supplemental brief, the time limit to designate Dreams as a Respondent had already elapsed in accordance with Articles R48 and R49 of the CAS Code. Therefore, Dreams would not be considered as a Respondent in this matter. Tema's request to include FIFA as an 'interested party defendant' was also rejected as not only were FIFA not listed as a Respondent in the Statement of Appeal filed on 30 November

2015, but the concept of an 'interested party defendant' did not exist under the CAS Code.

Finally, the GFA was invited to file its position regarding Tema's request for provisional measures by 16 December 2015.

32.  On 16 December 2015, the GFA provided its response objecting to Tema's request for provisional measures. The GFA submitted that Tema failed to credibly show that there was a realistic and imminent threat of, or actual, injury causing irreparable harm unless provisional measures were granted and therefore requested the CAS to dismiss the request.

33. On 18 December 2015, the President of the CAS Appeals Arbitration Division rendered an award on preliminary measures, mling that:

34. On 21 December 2015, in accordance with Article R53 of the CAS Code, the GFA wrote to the CAS  Comi Office nominating Mr Bernhard Welten, Attorney-at-Law, Bern, Switzerland as an arbitrator.

35. On 31 December 2015, in accordance with Article R55 of the CAS Code, the GFA filed its Answer and requested the following relief:

"To sum, it is our strongest contention and prayer to that in the light of our arguments and supporting regulations the GFA urge CAS to dismiss the appeal for lack of merit and/or lack of jurisdiction.”

36. On 4 January 2016, the CAS Comi Office wrote to the Parties inviting them to inform the CAS Court Office whether they preferred a hearing to be held in this matter or whether they wished for the Panel to issue an award based solely on the Pmiies’ written submissions.

37. On 5 January 2016, following receipt of the GFA's Answer, Tema filed a further written submission regarding CAS jurisdiction arguing, in summary, that the CAS did have jurisdiction to hear this dispute.

38. On 8 January 2016, the CAS Comi office acknowledged Tema's submissions regarding CAS jurisdiction and advised the Parties that it was for the Panel, once constituted, to decide on CAS jurisdiction and that the Parties were not authorised to provide any further submissions unless the Parties mutually agreed to it, or were requested to do so by the Panel.

39.  On 11 January 2016, the GFA wrote to the CAS Court Office stating that they would prefer the Panel to issue an award based solely on the Parties' written submissions. On the same day, Tema wrote to the CAS Court Office stating that it wished for a hearing to be held in this matter; however it wished to be heard at this hearing via telephone.

40. On I February 2016, Tema wrote to the CAS Court Office with a 'request for an order to produce documentary evidence',  requesting the Panel to order the GFA to produce evidence of, inter alia, biographical data evidence of the players involved in this dispute and copies of match reports.

41. On 3 February 2016, pursuant to Article R54 of the CAS Code and on behalf of the President of the CAS Appeals Arbitration Division, the CAS Court Office informed the Parties that the Panel appointed to this case was constituted as follows:

>-   President: Mr Mark A. Hovell, Solicitor in Manchester, United Kingdom.

>-   Arbitrators: Dr Marco Balmelli, Attorney-at-Law in Basel, Switzerland.

Mr Bernhard Welten, Attorney-at-Law in Bem, Switzerland.

42. On 12 February 2016, given the disagreement between the parties regarding the need for a hearing, the CAS Comi Office wrote to the parties on behalf of the Panel requesting the

Tribunal Arbitral du Sport CAS 2015/A/4328 Tema Youth Football Club v Ghana Football Association

Court of Arbitration for Sport Parties to file a second round of written submissions by 19 February 2016, limited to the following issues:

"Provide a PDF copy of the GFA regulations and statutes.

Guide the panel how one club can complain to the GFA about another fielding an ineligible player, in accordance with the GFA regulations and statutes.

How the GFA then disciplines that club and the position of the complainant in those proceedings.

Hot!' either club can appeal?

Whether either club can seek a review of any appealed decision.

What the conditions for such a review are."

43. On 13 February 2016, Tema submitted its second round of written submissions.

44. On 15 February 2016, the GFA wrote to the CAS Court Office requesting that a hearing is now held in this matter instead of its earlier preference that the Panel render an award based solely on the Parties' written submissions.

45. On 23 February 2016, the CAS Comi Office wrote to the Pmiies granting an ultimate deadline of29 February 2016 for the GFA to file its second round of written submissions.

46. On 29 February 2016, the GFA submitted its second round of written submissions.

47.  On 17 March 2016, the CAS Court office informed the Parties that the Panel had decided to hold a hearing in this matter and requested the Parties to confirm their availability.

48. On 23 March 2016, Tema wrote to the CAS Court Office reiterating their request to be heard via telephone at the hearing.

49.On 7 April2016, Tema filed a signed Order of Procedure with the CAS Court Office.

50. On 14 April2016, the GFA filed a signed Order of Procedure with the CAS Court Office and requested to be heard at the hearing via Skype.

IV. The hearing

51. On 31 March 2016, the CAS Comi Office wrote to the Parties confirming that a hearing would take place on 28 April 2016.

52. A hearing was held on 28 April2016 at the CAS premises in Lausanne, Switzerland. The Pmiies did not raise any objection as to the composition of the Panel. The Panel were all present and was assisted by Mr Antonio de Quesada, CAS Counsel. The following persons attended the hearing:

I. Tema: Mr E. Selasi Adika, external counsel; Mr Wilfred

 Tribunal Arbitral clu Sport   CAS 2015/A/4328 Tema Youth Football Club v Ghana Football Association

Court of Arbitration for Sport The GFA: Kweku Osei, President and Owner; Mr Francis Adu Essah and Mr Ahmed Gambo, witnesses.

Mr Kweku Eyiah, Legal Counsel and Mr Isaac Addo, Acting General Secretary.

 53. All the Party representatives, counsels and the witnesses participated in the hearing via Skype. The Party representatives and the witnesses were invited by the President of the Panel to tell the truth subject to the sanctions of perjury. The Parties and the Panel had the opportunity to examine and cross-examine the Party representatives and the witnesses. The Parties then were given the opportunity to present their cases, to make their submissions and arguments and to answer questions posed by the Panel. The hearing was then closed and the Panel reserved its detailed decision to this written Award.

54. Upon closing the hearing, the Parties expressly stated that they had no objections in relation to their respective rights to be heard and that they had been treated equally in these arbitration proceedings. The Panel has carefully taken into account in its subsequent deliberation all the evidence and the arguments presented by the Parties, both in their written submissions and at the hearing, even if they have not been summarised in the present Award.

V. Submission of the parties

55. The following summary of the Parties’ position is illustrative only and does not necessarily comprise each and every contention put forward by the Parties. The Panel however, has carefully considered all the submissions made by the Parties, even if no explicit reference is made in what immediately follows.

A. Tema's Submissions In summaty, Tema submitted the following in support of its Appeal:

56. Tema submitted that both the GFA DC and the GFA AC had erred by allowing the outcome of the Match to stand. There were clear precedents such as BA United FC v. Aduana Stars FC, BA United FC v. Berlin BC, BA United FC v. Bechem United FC and King Solomon FC v. Soccer Learners  FC that demonstrated that the GFA sanctioned some of its clubs that played matches with ineligible or unqualified players by deducting points from those clubs.

57. Articles 26 and 29 of the GFA's Regulations state as follows:

"Article 26: Registration -General Guidelines

1.   (a) The National Secretariat shall keep registers and data bases in which the names and birth dates and other particulars of all players for each club shall be recorded.

(b) A player must be registered with a club as either a Professional or an Amateur in accordance with the provision of Article 2 of the FJFA Regulations on the Status and Transfer of Players. Only registered players are eligible to participate in organised

Tribunal Arbitral du Sport CAS 2015/A/4328 Tema Youth Football Club v Ghana Football Association

Court of Arbitration for Sport football.  By the  act  of  registering,  a player  agrees  to  abide  by  the  Statutes  and

Regulations of FIFA, CAF and the GFA.

(c) All clubs shall ensure that their total number of registered players does not exceed a number to be determined by the GFA in consultation with the clubs from time to time.

(d) Each Regional Association shall determine the number of players to be registered by the clubs for its competitions.

(e) In registering players, .fit!! Names (Surnames and Other name.1) shall be given. Incomplete or nicknames shall not be accepted. After registration the association shall be notified of any changes, and in any event, not later than fourteen (14) days from the date of the change.

2.   (a) Each club shall be given a software by the IT Department of the GFA to generate electronic registration  form for each player for the Premier, Division One, Division Two League Clubs, Women League Clubs and Juvenile League Clubs. The form shall bear the signatures of the player, club official, the Medical Officer who examined the player, and shall be affirmed with six month old).

(b) Clubs registering players shall pay processing fees as determined by the GFA.

(c) The application for registration of a Professional must be submitted together with a copy of the player's contract. It shall be at the discretion of the relevant decision-making body to take account of any contractual amendments or additional agreements that have not been duly submitted to it.

3.  (a) If a player who has not been registered with the Association appears for a club in any  official  match,  that  player  will  be considered  as  having  played  illegitimately. Without prejudice to any measure required to rectify the sporting consequences of such an appearance, sanctions may also be imposed on the player and I or the club. The right to impose such sanctions lies in principle with the Association or the organizer of the competition concerned.

(b) A player shall only be registered for one club at a time.

(c) The Ghana Football Association is obliged to provide the club for •which the player is registered with a player passport containing the relevant details of the player.

 The player passport shall indicate the club (s) for which the player has been registered since the season of his 12th birthday. If a birthday falls between seasons, the player shall be listed in the player passport for the club for which he was registered in the season following his birthday.

(d) Players may be registered with a maximum of three (3) clubs during one season. During this period, the player is only eligible to play official matches for two clubs. As an exception to this rule, a player moving between two clubs belonging to association with overlapping seasons (i.e. Start of the season in summer/autumn as opposed to winter/spring) may be eligible to play in official matches for a third club during the relevant season, provided he has fitly complied with tribunal Arbitral du Sport CAS 2015/A/4328 Tema Youth Football Club v Ghana Football Association

Court of Arbitration for Sport towards his previous clubs. Equally, the provisions relating to the registration periods

(Article 6 of the FIFA Regulations on the Status and Transfer the minimum length of a contract (Article 18, paragraph 2, of the FIFA Regulations on the Status and Transfer of Players) must be respected.

(e) A club shall be deemed to be the bonafide holder of the registration of a player only upon receipt of his registration card duly issued by the Ghana Football Association.

(f) Players may only be registered subject to the exception provided for in Article 6 paragraph I of the FIFA Regulations on the Status and Transfer of Players (Article 28 (I) of the GFA General Regulations) if an application from the club is validly submitted during a registration period.

(g) The provision concerning Registration Periods do not apply to competitions in which only Amateurs participate. For such competition M. the GFA shall specify the periods when players may be registered, provided that due consideration is given to the sporting integrity of the relevant competition.

4. Under all circumstances due consideration must be given to the sporting integrity of the competition.  In particular a player may not play official matches for more than two clubs competing in the same national championship or cup during the same season, subject to stricter individual competition regulations of member associations.

Article 29: Unqualified Player

I.   An unqualified player is:

(a) Any player not registered at an association