What is ne bis in idem in sports law? We break down how FIFA uses escalating sanctions without breaching this legal principle.
Understanding Ne Bis In Idem in Sports Law
The Latin phrase ne bis in idem, meaning “not twice for the same,” is a cornerstone principle in legal systems around the world. It protects individuals and entities from being punished twice for the same offence. In sports law, particularly within FIFA’s disciplinary framework, this principle plays a critical role in maintaining procedural fairness. But how does this apply in cases where clubs face multiple penalties that seem related to the same misconduct?
The Key Distinction: New Offences vs. Repeat Sanctions
A common misunderstanding arises when a club is sanctioned more than once under what appears to be the same set of facts, such as failing to pay a sum ordered by the FIFA Dispute Resolution Chamber (DRC) or CAS. While this might seem like a violation of ne bis in idem, FIFA and the Court of Arbitration for Sport (CAS) distinguish between:
- The initial contractual breach (for example, unpaid salary)
- A separate disciplinary offence for failing to comply with a final and binding decision
Once a club fails to respect a decision ordering compensation, FIFA typically imposes a first-tier sanction such as a fine or a transfer ban. If the club continues to disregard the decision, FIFA may escalate the punishment through stronger sanctions like point deductions or relegation. These are considered responses to ongoing or new violations, not repeated punishment for the same incident.
CAS Jurisprudence on Ne Bis In Idem
CAS has consistently supported this interpretation:
- CAS 2010/A/2139 (Kauno FBK v. FIFA) clarified that sanctions for non-compliance with a DRC or CAS decision are distinct from the initial contractual dispute and do not violate ne bis in idem.
- CAS 2019/A/6278 and 2020/A/7369 (Cruzeiro EC v. FIFA) upheld that a transfer ban followed by point deductions or relegation does not breach ne bis in idem, because each sanction addresses the club’s continuing non-compliance.
Each enforcement step is triggered by a new refusal to comply, not by the original breach.
FIFA’s Legal Basis and Proportionality
Under Article 21 of the 2023 FIFA Disciplinary Code, FIFA may impose escalating sanctions based on how long the non-compliance lasts. The progression from transfer bans to point deductions and then relegation is part of a proportional enforcement mechanism designed to compel compliance.
This approach was challenged before the Swiss Supreme Court in Decision 4A_462/2019, which confirmed the validity of FIFA’s right to apply such measures. The court agreed that this structured escalation does not amount to unlawful double jeopardy.
Real-World Relevance
This principle is important for clubs, lawyers, and agents to understand. Misinterpreting ne bis in idem could lead to incorrect legal challenges or compliance failures. Clubs should know that once a decision becomes final, failing to comply does not end the matter. Instead, it triggers a series of enforceable consequences, each legally distinct and proportionate to the situation.
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