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International Arbitration Forum

Yves Diba v. Fédération Congolaise de Football Association (FECOFA)

Case summary

At a glance

Parties
Yves Diba (former Congolese professional footballer and club manager) v. Fédération Congolaise de Football Association (FECOFA)
Case no.
CAS 2022/A/9056
Forum and rules
Court of Arbitration for Sport, appeal procedure under the CAS Code (2021 edition); language French
Treaty
None. Appeal under Article 68 of the FECOFA Statutes (2007)
Tribunal
Nicolas Cottier (Sole Arbitrator)
Sector
Football; sports governance
Outcome
Appeal upheld (27 October 2023). FECOFA committed a denial of justice and was ordered to take up and deal promptly with Mr Diba's complaint against AS Vita Club.
Amount
No damages were at issue before CAS. Before FECOFA, Mr Diba estimated his claims against the club at between $234,250 and $625,000. The cost provisions of the operative part are redacted in the published award.

The dispute

Yves Diba played for AS Vita Club under an employment contract from 3 October 2017 to 3 October 2019. He says the club then kept him on as manager. On 2 October 2021 he filed a complaint with FECOFA, the football federation of the Democratic Republic of the Congo, claiming unpaid signing bonus, salary and later pay. FECOFA acknowledged the complaint on 25 February 2022 and asked for his manager contract. After that it opened no proceedings. Its only further step was to forward the complaint to the club on 22 July 2022, despite repeated reminders and formal notices. Mr Diba appealed to CAS for denial of justice. FECOFA argued that the appeal was late under Article R49 of the CAS Code, that a denial of justice does not meet the conditions of Article 68.1 of its Statutes (so CAS lacked jurisdiction), and that it had acted on the complaint.

Key holdings

  1. CAS has jurisdiction. Article 68 of the FECOFA Statutes provides for appeals to CAS, and no internal appeal was available. Under constant CAS case law, a denial of justice is treated as a decision that can be appealed. Under Swiss Federal Tribunal case law, whether a denial of justice exists is a question for the merits and does not affect jurisdiction. ¶¶ 38–41
  2. The appeal is admissible. The 21-day time limit in Article R49 does not apply where an appeal is brought because a decision is delayed, unless there are special circumstances such as abuse of rights, and there were none here. In any event, Mr Diba appealed within 21 days after the deadline set in his formal notice of 22 June 2022 expired, which showed the required diligence. ¶¶ 45–51
  3. Article 66 of the 2007 Statutes allowed FECOFA to set up an arbitral tribunal but did not require it to. FECOFA had never set one up. Which internal body is competent is not decisive: Article 67 clearly gives FECOFA jurisdiction over this internal national dispute between a Congolese player and manager and a Congolese club. Requests 3 and 5, which sought referral to a specific internal body, were rejected, and it is for FECOFA to determine the competent body. ¶¶ 58–69, 77
  4. FECOFA committed a denial of justice. After acknowledging the complaint on 25 February 2022 it took no investigative step. Its letter of 22 July 2022 merely forwarded the complaint, without opening proceedings or setting the club a time limit to respond. FECOFA gave no reason for failing to deal with the complaint, and an unjustified delay in reaching a decision is a denial of justice. ¶¶ 71–76
  5. Operative part: the appeal is admissible and upheld. FECOFA must take up the dispute between Mr Diba and AS Vita Club, invite the club to answer the complaint of 2 October 2021, and deal with the complaint promptly. All other requests are rejected. Operative part, ¶¶ 1–5, 8

Procedural history

  1. 2 October 2021Mr Diba files a complaint against AS Vita Club with FECOFA.
  2. 25 February 2022FECOFA acknowledges the complaint and asks for the manager contract.
  3. 22 June 2022Final formal notice to FECOFA, warning that Mr Diba will go to CAS for denial of justice. It goes unanswered.
  4. 22 July 2022FECOFA forwards the complaint to AS Vita Club.
  5. 26 July 2022Statement of appeal filed with CAS. The deadline for the appeal brief is suspended pending a legal aid request.
  6. 5 December 2022Appeal brief filed. FECOFA files its answer on 26 December 2022.
  7. 21 February 2023Nicolas Cottier appointed Sole Arbitrator. Both parties waive a hearing.
  8. 27 October 2023Award: appeal upheld and FECOFA found to have committed a denial of justice.

Tribunal, counsel and experts

Decided by
For the claimant
Audrey Bruin

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
CAS 2022/A/9056
Claimant
Yves Diba
Respondent
Fédération Congolaise de Football Association (FECOFA)
Documents

Procedure: Appeal
Sport: Football
Matter: Governance
Outcome: Upheld
Panel: Nicolas Cottier
Source: Court of Arbitration for Sport case database.