nfortunately, there are uncountable cases in football disputes in which one of the parties, usually the football player, claims a certain document used in a procedure is a forgery. In most of such cases, the alleged forgery consists in the signature inserted into a document, the amount or the date appearing in payment receipts exclusively kept by the club, certain articles in employment contracts, transfers agreements, commission contract with agent or other documents of private nature used in the football industry, which are crucial for the outcome of the case.
This article aims at getting a close look at the current regulations and at the most common problematic on the issue while simultaneously analyzing the FIFA and Court of Arbitration for Sport (CAS) practices in cases where forgery of a document has been claimed by one of the parties, and offer some guidance in how to approach such type of situations when confronted with it in the course of a procedure.
The legal framework
The FIFA Rules governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (DRC) currently in force (Ed. 2014) (“the FIFA Procedural Rules”) regulate evidentiary issues in article 12 under the title “Taking of evidence”. This article contains some relevant amendments compared to the same article in the previous edition (i.e. Ed. 2012) specially introduced to force parties to disclose all evidences they have from the start of the procedure, or that they could have had deploying a minimum diligence, under the risk of not being admissible at a later stage of the procedure. Thus, after enumerating in first place the admissible evidence that can be brought forward in the course of a procedure, article 12 gives complete freedom of discretion to the FIFA bodies to consider the evidence submitted by the parties. The only limit imposed by the regulations is the obligation stipulated in article 5 paragraph 8 under the title “General Procedural Principles” to grant the parties the basic rights to be heard and present evidence.
The CAS Code, on the contrary, is silent with regards to “evidentiary issues” and contains no specific rule to that extent. Likewise, the only limit the Panel of Arbitrators will have is the obligation to grant the parties with equal treatment and the right to be heard during the proceedings in accordance with the general rule stipulated by article 182 of Swiss Private International Law Act (PILA) as the relevant arbitration law applicable in a Swiss international arbitration.
The legal framework thus guarantees a high degree of discretion both to the FIFA members of the DRC and Players’ Status Committee (PSC) and to CAS Panels to freely determine the facts and consider the evidence submitted.
The competence and limits of the FIFA DRC and CAS
To begin with, it is necessary to remark that FIFA case law has consistently manifested that as a general rule, the DRC and/or the PSC have no competence to adjudicate on criminal offences such as forgery of signature or other documents, and consequently, whenever a forgery is raised by one of the parties it always refers them to the respective national criminal authorities for a solution on the matter.
Moreover, the FIFA bodies have stated in several occasions that unless there is a final and binding decision of a competent criminal court establishing the falsification of a signature or a document, it has to presume its authenticity, with the exception of cases in which the divergence of the signature -for instance- is blatant or if other evident circumstances are able to persuade them that the document is forged.
Such a presumption of authenticity is however not absolute as it would be in the case of public documents authorized by a public notary or by other public institutions. Therefore, it will be to the best ability of the party claiming the act of forgery to rebut the presumption through the evidence produced during the procedure.
The burden and the standard of proof
Pursuant to article 12 paragraph 3 of the FIFA Procedural Rules, it is the party claiming a certain right or a fact in dispute who will also be required to prove it, bearing consequently the so-called burden of proof. CAS has defined the concept of burden of proof in many occasions before. Of particular interest is the definition offered by the award 2007/A/1380 MKE Ankaragücü Spor Kulübü v. S. of 11 June 2008:
«It is well established CAS jurisprudence that any party wishing to prevail on a disputed issue must discharge its burden of proof, i.e. must give evidence of the facts on which its claim has been based. The two requisites included in the concept of ‘burden of proof’ are (i) the ‘burden of persuasion’ and (ii) the ‘burden of production of the proof’. In order to fulfil its burden of proof, a party must, therefore, provide the Panel with all relevant evidence that it holds, and, with reference there to, convince the Panel that the facts it pleads are true, accurate and produce the consequence envisaged by the party. Only when these requirements are complied with has the party fulfilled its burden and has the burden of proof been transferred to the other party.»
Accordingly, the party disputing the authenticity of a document or a signature will also carry the risk of succeeding or not in discharging the burden of proof.
As to the standard of proof, no particular provision can be found in the FIFA Procedural Rules nor in the CAS Code. However, although not directly applicable to the procedures before the DRC and the PSC, a reference to it is found in article 51 of the FIFA Code of Ethics, which can offer some guidance in the sense that the standard of proof requested in FIFA to shift the burden of the proof will be somewhere in between the balance of probabilities and the comfortable satisfaction of the adjudicating body.
In any case, the lack of a clear instruction on this matter gives the FIFA Bodies or the Panel of arbitrators the discretion to decide which standard is to be applied in each particular case considering the overall circumstances.
Finally it is important to bear in mind that in order to make a final decision on the authenticity of a document or a signature, neither the FIFA bodies nor the CAS are bound by the conclusions of an expertise or any other evidence, but rather they follow the principle of freedom to evaluate evidence, that allows them to take the decision on the basis of the overall circumstances of the case.
As previously mentioned, the FIFA current regulations allow the parties to rely on any pertinent evidence they deem necessary to demonstrate a certain fact.
When confronting a case of forgery, the first action a party willing to rebut the presumption of authenticity must take is to order the production of the original document in cause. If the party relying on the document fails to produce it, FIFA and CAS will normally not consider it, apart from in certain cases in which the document was only exchanged between the parties by fax or by other means proving the correct receipt. To avoid this problematic, whenever signing a document (e.g. cash payment receipts, contract termination, etc.) it will be important for the parties to specify whether it has been signed in original counterparts or exchanged by other means such as fax or e-mail.
If however, the other party succeeds and produces the original document in dispute, multiple possibilities can be of help in order to overturn the presumption of validity.
The first one is necessarily the implementation of an independent expertise on the authenticity of the document. The expertise can focus on the signature of the document itself or other aspects therein such as handwritten notes of the numbers in a payment receipt that might have been modified unilaterally.
In order for an expertise to increase the chances of success, the party alleging the forgery of a signature must submit as many samples of his authentic signature as possible to facilitate the work of the expert. There are in fact many cases in which the expert has expressly complained about not having had enough original samples at his disposal for a more accurate analysis.
Also when more than two persons appear as signatories of the document, a cross examination of the persons signing the document or claiming to have delivered the money can be of help. This would be the case for instance when a disputed payment receipt is signed simultaneously by the Chief Accountant of the club and the General Director of the club on the one side, and by the player on the other side.
The effects of a party testimony and witness testimony in cases of forgery are indeed limited although sometimes they can help clarifying the circumstances of the alleged signature of the document. Interrogating a testimony can help evidencing contradictions in the happenings of the case. An oral hearing will be difficult to obtain during a procedure before FIFA as procedures are conducted as a general rule in writing, so the calling of a hearing will only occur under very particular and exceptional circumstances to be determined by the deciding body in each case.
Article 12 of the FIFA Procedural Rules also refers to all other pertinent evidence. The passport of the player, the visa payment excerpt and telephone bills are also of great use to demonstrate the exact location of the person on a certain day or/and hour in which allegedly the document in dispute was signed.
Finally, a criminal complaint against the person submitting the allegedly forged document will also help persuade the adjudicating body that the statement regarding the act of forgery is serious. The effects of a complaint before the national criminal courts are limited and do not necessarily impact the course of the case.
The incidence of criminal proceedings before a State Court in the on-going contractual dispute.
As pointed out before, FIFA bodies consider they have no competence to decide upon matters falling under the scope of criminal law and consistently refer the parties to the competent national criminal authorities for a decision on that issue. It is thus also important to observe the impact of such a possible scenario during the course of a procedure before FIFA or CAS.
On the one hand, the FIFA Procedural Rules remain silent and contain no specific provision
with regards to the possible suspension of a procedure. However, the FIFA DRC has confronted these kind of situations before and while fully aware of the risk of contradicting decisions, it has refused to stay the proceedings whenever a criminal action was pending before a national court, adducing the principle of innocence and the risk of an abusive use of it by the parties (e.g. dilatory tactics), which would possibly render ineffective any legal action brought forward.
On the other hand, articles R39 and R55 of the CAS Code stipulate the following: “The Panel shall rule on its own jurisdiction, irrespective of any legal action already pending before a State court or another arbitral tribunal relating to the same object between the same parties, unless substantive grounds require a suspension of the proceedings.”
Some legal doctrine has emphasized that the reference to substantive grounds might be unfortunate and at some point misleading when compared to its correspondent article in the Swiss PILA (art. 186.1), mentioning that a proper translation of it from French should have been “serious reasons” rather than substantive grounds. CAS have already interpreted the meaning of this provision in this same sense through the award 2009/A/1881 E. v. FIFA & Al-Ahly Sporting Club, partial award on lis pendens and jurisdiction of 7 October 2009.
A request to suspend an on-going proceeding before CAS was raised and rejected again by the Panel in the CAS award 2011/O/2574 UEFA v. FC Sion/Olympique des Alpes SA of 31 January 2012. In this case, the Respondent asked for the suspension on the grounds that “broadly connected” proceedings before State courts had been initiated prior to those before CAS.
On 13 February 2012, the Swiss Federal Tribunal 8 confirmed CAS’ restrictive approach to the matter of lis pendens, requesting three cumulative conditions for the suspension of an on-going procedure: (1) the two concurring proceedings must concern the same parties and the same dispute (2) the case before the State courts must have been initiated before the CAS was seized and (3) the existence of serious reasons to stay the procedure.
In light of the above considerations, it appears for the moment very unlikely that FIFA or CAS will suspend the procedure due to a criminal action pending before a State court, and consequently all efforts are to be concentrated in producing evidence persuading the Panel or the members of the FIFA bodies of the alleged act of forgery.
However, if after exhausting all legal remedies and obtaining an unfavorable decision before CAS rejecting an alleged act forgery, the party in cause succeeds in proving the forgery before a national criminal court, recourse to the so-called “revision” of arbitral awards, which is an extraordinary legal remedy under Swiss Law, might allow under very limited circumstances to reopen the case before the Swiss Federal Tribunal.
The procedural aspects explained hitherto are discussed in multiple FIFA and CAS case-law. A brief reference to some of it follows.
The competence of the DRC
FIFA DRC, 21 November 2006
In this case, regarding a premature contract termination by the player, the club adduced some photocopies of payment receipts apparently signed by the player in order to demonstrate it had paid all salaries. The club however, failed to produce the originals and the Chamber, while referring to the general principle whereby the Chamber lacks of competence to decide upon matters of criminal law, concluded that the player’s allegations that he never signed the payment receipt persisted.
The standard of proof
CAS 2004/A/730 Kontis & Ferrer v. FIFA
The case concerns a dispute between two players’ agents against FIFA on whether the agents violated the FIFA Players’ Agent Regulations through some agreements regarding federative rights and transfer commissions signed with a football club. During the procedure, an expertise to verify the authenticity of a document was conducted. Beyond the merits of the dispute, this decision is of interest as the expert concluded that the document was not genuine “on the balance of probabilities” (vid para. 12, p. 17).
FIFA DRC, 21 November 2006
This case regards a contractual dispute between a player and a club. After the contract between them expired, the player requested some outstanding salaries. The club adduced as evidence an additional Agreement whereby the player deviated from the initial terms of the employment contract in his detriment. The player denied having signed the said Agreement. The Chamber emphasized that the evidence submitted by the parties will be considered with free discretion. In view of the players’ passport which indicated that he was not in the country at the moment of signature, it decided to dismiss the club’s allegations. This decision is relevant because it mentions that “unless proven otherwise by a neutral expertise or a decision of the competent national criminal authority, for the moment the statement of the Respondent has to be rejected since the agreement […] seems not to have been signed by the player.”
FIFA DRC, 27 April 2006
The case concerns the termination of an employment contract at the players’ initiative for an alleged lack of payment of the agreed remuneration. The club claimed having paid all salaries and adduced the relevant payment receipts signed by the player as a proof of payment. The DRC decided that with “the exception of cases of evident divergence of the signatures, as long as the falsification of a signature or a document is not established by a final and binding decision of a competent criminal authority, the DRC has to presume the authenticity of the signature or the document in question” and rejected the players’ claim. This decision was confirmed by the CAS award 2006/A/1100 although the case was referred back to the adjudicating body with regard to the consequences of the player’s wrongful contract termination.
CAS 2006/A/1100 E. v. Club Gaziantepspor
This award is the appeal of the player and counterclaim of the club to the previous DRC decision. It is of interest as it confirms the principle of freedom of CAS panels to form their own opinion, and it further concludes that an act of forgery of two payment receipts claimed by the player has not been established to the “satisfaction of the Panel”, based on the circumstances of the case rather than on the conclusions of an independent graphological expertise which did not reach a clear conclusion. This conclusion of the Panel is thus important, as it seems to raise the standard of proof beyond the mere balance of probabilities.
The suspension of the procedure
FIFA DRC, 30 November 2007
This case is the continuation of the previous case of 27 April 2006. After the player was considered to have breached his contractual obligations, the club requested compensation and joint and severe liability of the players’ new club through a different procedure. The case is interesting because the player requested the stay of the proceedings adducing the submission of a criminal complaint against the club. The DRC rejected the request of the player to suspend the procedure on the basis of the already mentioned principle of presumption of innocence and the risk of an abusive use.
CAS 2009/A/1881 E. v. FIFA & Al-Ahly Sporting Club
The case confirms the CAS restrictive approach when examining the possible suspension of an ongoing arbitration.
“4. In order to demonstrate the existence of “serious reasons”, the appellant must prove that the stay is necessary to protect his rights and that the continuance of the arbitration would cause him some serious inconvenience. The mere argument that there is a possibility that the State court may come up with a different decision than that of the CAS is not a serious reason, as the possibility of conflicting decisions is present in every case of parallel proceedings involving an arbitration tribunal and a civil court. If one were to accept this argument, the arbitral proceedings would end up being always suspended, which is manifestly not the legislative aim of Article 186 para. 1bis LDIP.»
In view of the considerations and case law referred above, it seems for the moment remotely unlikely that actors in the football industry will voluntarily start using public notaries to validate and certify the documents signed and the identity of the parties; however, a simple provision introducing the FIFA Regulations on the Status and Transfers of Players, prohibiting or regulating cash payments and obliging all employment related documents such as contracts, addendums and termination agreements to be signed by the parties before a public notary would significantly reduce the problematic caused by these unfortunately too common situations.
Surprisingly, in my professional experience in countries like Turkey, such practice is strongly implemented and clubs usually oblige their football players to ascertain their signatures before a public notary when signing an employment contract or even the termination of the contract.