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What is arbitration?

Arbitration is “a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound.” In other words, arbitration is a form of dispute settlement, where parties can avoid resolving their dispute in the public litigation. It is used mainly in solving disputes arising out of commercial matters. Arbitration should not be confused with mediation. In the arbitration, the arbitrator obliged to determine the dispute by reference to certain rules, rather than to seek compromise which is mediator’s task.[1]

Arbitration can also be described as a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.[2]

From the above definitions, a number of things are apparent: Arbitration is an alternative to litigation; arbitration decisions are binding on both parties.

 

ARBITRATION IN NIGERIAN FOOTBALL
In Nigeria, football is governed by the Nigeria Football Federation (NFF). Although, FIFA, in 2007, released a circular, to its member associations decrying the fact that only a few member associations had established a judicial body to adjudicate over employment disputes between players and clubs and advocating the establishment of NDRC’s to lighten the burden on the FIFA DRC and ease the process of adjudication[3] – which Nigeria is still yet to do. Articles 4(3), 72 and 73 of the NFF Statute provide that:

Article 4:
3. NFF shall provide the necessary institutional means to resolve any internal dispute that may arise between Members, Clubs, Officials and Players of NFF.
Article 72:
NFF shall establish a National Dispute Resolution Chamber which shall deal with all internal national disputes between NFF, its members, players, officials, match and players agent that do not fall under jurisdiction of its judicial bodies. The Executive Committee shall draw up special regulations regarding the composition, jurisdiction, procedural rules of the National Dispute Resolution chamber, which shall be in compliance with the FIFA directive on the subject.
Article 73
1. NFF, its members, players, officials and match and player’s agents will not take any dispute to ordinary Courts unless specifically provided for in these Statutes and FIFA regulations. Any disagreement shall be submitted to the jurisdiction of FIFA, CAF, WAFU or NFF.
2. NFF shall have jurisdiction on internal national disputes i.e. disputes between parties belonging to NFF. FIFA shall have jurisdiction on international disputes i.e. disputes between parties belonging to different Associations and/or Confederations.
Apart from the above statutes, the rules governing professional football in Nigeria, also provides for the use of arbitration to solve disputes. Section D of the NPFL Rules and Frameworks which deals with arbitration disputes, states that:
4. All disputes arising from transfer of players, contracts, etc shall be referred to the DRC for adjudication.
5. Decisions of the Arbitration Committee shall be final and binding on all parties concerned.
6. Failure by any club to comply with any decision of the Arbitration Committee within 30 days shall cause the Club to be expelled from the League.

It must be noted that the creation of NDRC’s is also supported by FIFA, with the aim of independent arbitration tribunals established by Member Associations (MAs) that are competent to handle disputes between clubs and players, mediate on employment and contractual stability, as well as training compensation or solidarity contribution litigation between clubs within the same association. In Nigeria, employment disputes represent a good number of the football disputes.[4] Players are often at loggerheads with clubs over non-payment of their salaries and other financial entitlements, as well as other contractual issues.

 

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THE NDRC STANDARD REGULATIONS
The National Dispute Resolution Chamber Standard Regulations was approved by the FIFA Executive Committee at its meeting in Zurich on the 28th – 30th of October 2007, for enforcement on 1st January 2008. Nigeria, being a member of FIFA, is also bound by this Regulations.

In terms of the jurisdiction of the NDRC, it has competence over matters regarding employment and contractual issues between clubs and players, also as regards training compensation and solidarity contributions between clubs of the same association[5]. While exercising its jurisdiction, the applicable law on such matters, are the statutes and regulations of the association, and should the association be unable to fulfil its obligation, it can apply the FIFA Statutes and Regulations[6]. Also, the NDRC will have to take into account, agreements, and laws- particularly regarding labour law, as well as bargaining agreements that exist at national level.

In regards to the composition of the chamber, each member has a four-year mandate, which is renewable[7]. Article 3 states:
a. A chairman and deputy chairman chose by the player and club representatives from a list of at least five persons drawn up by the association’s executive committee;
b. Between three and ten players’ representatives who are elected or appointed either on the proposal of the player’s associations affiliated to FIFPro, or where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro;
c. Between three and ten club representatives who are elected or appointed on the proposal of the clubs or leagues.

Article 3 further states that the chairman and deputy chairman of the NDRC must be qualified lawyers. Also, no club can have more than one member in the NDRC.

Furthermore, the meetings and deliberations of the NDRC shall take place at the seat of the association[8]. Also, in a bid to avoid conflict of interest(s), NRDC members may not be members of an executive body of the association[9]. The decision making body of the NDRC must consist of a minimum of 3 members, including the Chairman or deputy chairman. The panel shall also include an equal number of club and player representatives in all cases[10].

In terms of the language used during proceeding, it would depend on the language of the member association. For example, if the dispute is between a Nigerian club and player and brought before the NDRC, the language used during proceeding would have to be English.

The parties (clubs and players) must be members of the association [11]. The NDRC also guarantees parties, their fundamental procedural rights – the right to their fundamental procedural rights – the right to equal treatment, and the right to be heard [12]. The parties also have the right to appoint professional representatives of their choice [13].

In terms of documents and time limits, the proceedings shall be conducted in writing (email is not admissible) [14]. The parties can make their submissions within the time frame given by the NDRC – with a time limit no less than 10 days and more than twenty days [15].

In evidence and pleadings, the parties maybe summoned by the NDRC, to appear at a hearing for inquiry and judgement, unless it considers the dispute to be ready for judgement [16]. The burden of proof is on the party making the allegation [17]. The parties are obliged to cooperate [18], and also respond to summons from the NDRC [19]. The NDRC shall also conduct the hearing of witnesses [20], and where specialist knowledge is required to verify or assess certain facts, the NDRC may refer to an expert [21].

Judgements notifications of the NDRCs decision shall be in writing to the association secretariat [22], who would then notify the parties or their reps in writing. In terms of the cost of proceedings, it is free of charge [23] – except where provided under Articles 22-25. Publishing of the decisions may also decide to published by the association in a form to be determined by the NDRC, after concealing the identity of the parties involved[24]. Discontented parties also have a 21-day time limit for appeals[25].

 

CONCLUSION
The importance of the NDRC cannot be overstated. One of the few reasons, as stated includes reducing the burden of the FIFA DRC, and also making sure the decisions are swift and not time consuming. The NDRC would also make it easier for players to settle whatever disputes – contractual or employment related, they have with their clubs.

 

* 400 level student, Faculty of Law, University of Lagos. eribakeoloruntoba@yahoo.ca

[1] Teacher, Law. (November 2013). What Is An Arbitration. Retrieved from https://www.lawteacher.net/free-law-essays/commercial-law/what-is-an-arbitration-commercial-law-essay.php?vref=1

[2] “What is Arbitration?” Available at www.wipo.int/amc/en/arbitration/what-is-arb.html

[3] FIFA Circular no.1129, dated 28 December, 2007.

[4] Kelvin C. Omuojine, Esq. “DISPUTE RESOLUTION IN NIGERIAN FOOTBALL: THE NEED FOR A NATIONAL DISPUTE RESOLUTION CHAMBER” (2014) 2 African Sports Law and Business Bulletin,

[5] Article 1 of the National Dispute Resolution Chamber (NDRC) Standard Regulations

[6] Article 2

[7] Article 3

[8] Article 5

[9] Article 6

[10] Article 7

[11] Article 12

[12] Article 13

[13] Article 14

[14] Article 15

[15] Article 17

[16] Article 21

[17] Article 22

[18] Article 23

[19] Article 24

[20] Article 25

[21] Article 26

[22] Article 32

[23] Article 33

[24] Article 34

[25] Article 35

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