After several years, it has finally been confirmed that in 2019 Ecuadorian football will begin a new chapter by having their own Professional Football League (EPFL). The new league is poised to bring about a number of significant (and positive) changes, including: a sales process for TV rights, mechanisms to protect the rights of teams and players, collective bargaining agreements for players, referees, clubs and associations and developments in sports arbitration.
It is the last of these changes – developments in sports arbitration – that is the focus of this article. In recent months, Ecuador experienced a high profile case relating to Michael Arroyo (a Barcelona S.C. player) who was appealing a suspension for a red card that would prevent him from playing against their main rival, Emelec, in the biggest match in Ecuador. However, the appeal was dismissed by the Appeal Tribunal of the Ecuadorian Football Federation due to a lack of quorum, and Arroyo had to miss the crucial game. The problem here was that the panel of the Appeal Tribunal was absent from the hearing and nobody could lead it, leaving Barcelona in a situation that violated their constitutional rights. The situation was unsatisfactory, arguably violating the player and the club’s right to a hearing. Many lawyers discussed the matter, and one even presented a constitutional claim to overturn the decision, although this was of little practical value to either Barcelona or Michael Arroyo as he still missed the crucial game.
It is therefore a significant improvement for the game that:
In the wake of the embarrassing Michael Arroyo case, the EPFL has decided to grant Guayaquil’s Commerce Chamber competency over disciplinary disputes.Tweet
This article examines this decision and what it means for clubs and players in the league, as well as for other sports in Ecuador.
The agreement to grant Guayaquil’s Commerce Chamber competency over disciplinary disputes
In September 2018, the EPFL signed an agreement with Guayaquil’s Commerce Chamber to acknowledge the competency of their Arbitral Tribunal over all of the league’s disciplinary disputes. Prior to this, disciplinary disputes were heard and decided by the Disciplinary Committee of Ecuadorian Football Federation, pursuant to Articles 11, 12 and 13 of the Rules of the Disciplinary Committee.
This change requires the EPFL clubs to incorporate arbitration clauses in the contracts they sign (in particular, players and coaches), agreeing that any disciplinary disputes be referred to Guayaquil’s Commerce Chamber. The arbitration clause should include at least the following requirements:
- Previous litigation: A settle agreement between the parties to include arbitration clauses.
- Claims limitation: A limited period to activate the claim.
- Third party extension: No benefit to a third-party
- Mediator selection procedure: An effective procedure to select mediators for the parties.
- Mediation time frame: A time frame to solve the mediation.
- Governing law: The governing law that will rule the procedure.
Guayaquil’s Commerce Chamber also needs to put appropriate rules in place. In the author’s view, they need to draft new and bespoke rules for sports arbitration. This should be written according to the rules applied by the CAS, which will ensure symmetry and should include:
- Application of the rules: Applicable regulations and the rules of law chosen by the parties.
- Minimum request for a disupte resolution: Matters of principle related to sport
- Dispute resolution prices: Court fees
- Appointment of the arbitrator: The parties may agree on the method of appointment of the arbitrators.
- Representation of the parties: The parties may be represented by persons of their choice.
- Procedural guidelines: General provisions for the process
- Confidentiality: Everyone involved undertakes not to disclose to any third party facts or information relating to the dispute.
- Termination of the process: The award given by the arbitrators means the end of the process.
- Settlement and failure to settle: Resolution between the disputing parties.
Besides drawing on CAS arbitration rules, the author is also of the view that the new arbitration rules established in Germany by the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit – DIS) should be used as inspiration. DIS has includes universal principles that secure a fair process and protect the interest of the parties. The most important points to improve the efficiency of the process are as follows:
- Article 9.4 of the DIS requires that all arbitrators should sign a declaration that they will be available throughout the entire arbitration process and in addition disclose any facts or circumstances that could cause a reasonable doubt of the arbitrator’s impartiality and independence. If this rule was in force during the Arroyo case we could have avoided the uncommon situation of lack of quorum.
- Another interesting rule of the DIS used for special cases is the preliminary injunction. This offers a huge advantage for cases where time matters. These fast track cases deal with situations that require immediate resolutions. In the Arroyo case, time was of the essence and the sanction was directly affecting Barcelona’s ability to have Arroyo available for the biggest match of the season.
- Similarly, Article 15 of the DIS establishes rules on how to challenge one of the arbitrators. In the Arroyo case, Barcelona’s lawyers were not entirely happy with the panel in charge of the case so it is vital to know the rules for challenging an arbitrator in a disciplinary proceeding to secure a fair proceeding.
Will this new structure help to protect Ecuadorian football?
The introduction of sports arbitration to the EFPL comes at an opportune time for the country, even in spite of some of the recent criticism and concerns surrounding arbitration that were recently voiced again in the Seraing case. Sports arbitration is a tool that has been used effectively by sports by leveraging its core characteristics like the informality and confidentially of the process and the advantages of the effective use of time, effective costs, specialised panels and control over the procedure.
These are significant advantages over the current disciplinary system, and the author believes that – with the advent of the new professional league – it will be the catalyst for a better footballing environment that will benefit fans and commercial partners alike. It is also hoped that it will establish a path for other sports in Ecuador to follow.