Laudos del TAS sobre Fútbol

Transcription

Universidad Rey Juan Carlos
Madrid, 29 de marzo de 2014
DERECHO DEL FUTBOL
NACIONAL E INTERNACIONAL
Seminario Permanente
Laudos del TAS sobre Fútbol
Prof. Avv. Massimo Coccia, LL.M.
Madrid, 29 de marzo de 2014 – Laudos TAS sobre Fútbol
1
The Court of Arbitration for Sport (CAS)
Tribunal Arbitral du Sport
(TAS)
Ø  In its judgment of 27 May 2003
(Lazutina case, 4P.267-270/2002),
the Swiss Federal Tribunal qualified
the CAS as “one of the main pillars
of organized sport” and (quoting
Juan Antonio Samaranch) “a true
supreme court of the sports
world”, and stated that “there
appears to be no viable alternative to
this institution, which can resolve
international sports-related disputes
quickly and inexpensively”.
Ø  Seated in Lausanne,
Switzerland
Ø  Established by the IOC in
1984
Ø  Reformed and passed under
the control of an independent
foundation (ICAS) in 1994
2
The Court of Arbitration for Sport (CAS)
The Code of
Sports-related
Arbitration
(the “CAS Code”)
The current version is in
force as of 1 March
2013
3
Table of Contents
I. 
Transfer of Minor Players
II. 
A “Virtual” Corruption Case
III.  The FC Sion Case
IV.  License Case: Málaga CF v. UEFA
4
I. Transfer of Minor Players
Art. 19 FIFA
RSTP
Protection of
Minors
(CAS 2007/A/1403,
RC Racing de
Santander SAD vs
Club Estudiantes de
la Plata, para. 81)
A) Principle:
International transfers of players under 18
are prohibited (both professionals and
amateurs)
B) Purpose:
i.  To protect minor players from abuse and
mistreatment
ii.  To give legal certainty through consistent
implementation
5
Art. 19 C) Only three exceptions:
Sec. 2.a a.
NO LINK WITH FOOTBALL: The player’s parents move to
FIFA
the country in which the new club is located for reasons not linked to
football.
RSTP
EU/EEA: The transfer takes place within the territory of the
Art. 19 b.
European Union (EU) or European Economic Area (EEA) and the
Sec. 2.b player is aged between 16 and 18. In this case, the new club must
fulfill the following minimum obligations:
FIFA
i.  adequate football education and training
RSTP
ii.  academic and/or school and/or job education and/or training
iii.  all necessary arrangements for private life
iv.  confirmatory statement to other national association.
Art. 19 c. BORDER LOCATIONS: The player lives no further than 50km from
a national border and the club with which the player wishes to be
Sec. 2.c
registered in the neighbouring association is also within 50km of that
FIFA
border. The maximum distance between the player’s domicile and
RSTP
the club’s headquarters shall be 100km
6
Ø  CAS 2005/A/955-956 Cádiz CF & Acuña v.
FIFA & Asociación Paraguaya Futbol
-  14 February 2005: Player is 16. He travels to Spain with
his mother and younger brother
Carlos Javier
Acuña Caballero
Born 23 June 1988
Paraguay
-  17 February 2005: Cádiz CF & Player sign employment
contract; Cádiz CF & Olimpia Asunción sign transfer
agreement
-  20 February 2005: Player’s mother signs employment
contract with restaurant
-  22 June 2005: Paraguayan FA refuses ITC requested by
RFEF because of the Player’s age. Request for ITC is
made to FIFA
-  26 August 2005: FIFA Single Judge Players’ Status
refuses ITC
-  8 September 2005: Appeal to the CAS
7
-  Player:
-  FIFA rules are void because they contradict national and
international mandatory principles of public policy
-  Mother’s move to Spain not linked to football; a friend
had recommended her to search for a job in Cádiz
-  Mother lived in Asunción; divorced from father
-  In Paraguay Player lived in his agent’s house in
Encarnación
-  Player followed the mother and had a much better life in
Spain
-  FIFA:
-  Art. 19 FIFA RSTP must be interpreted strictly
-  Difficult situation in Paraguay cannot be an additional
exception
-  Player’s move was linked to football
8
-  CAS Award of 28 December 2005:
-  FIFA rules are valid: they pursue a legitimate
objective and they are proportionate to such
objective
-  The move was clearly linked to football
-  Difficult situation for the Player? It’s the fault of
the Club
-  The Player will anyway turn 18 in six months
9
Ø  TAS 2012/A/2787 Villarreal CF c/ FIFA
Bartas
Wiktoruk
born 6
March 1999
Poland
-  July 2011: Bartas Wiktoruk is 12. He travels to Spain with
his family (father, mother and sister)
-  August 2011: Contacts with Villareal to join the Club
-  7 November 2011: father signs employment contract as a
worker for Pamesa Ceramica SL
-  7 November 2011: Villareal asks RFEF to register the
Player
-  24 November 2011: RFEF requests via TMS authorization
to register the Player, based on art. 19 sec. 2 FIFA RSTP
-  6 December 2011: FIFA Single Judge Players’ Status
refuses ITC, because there are serious doubts on whether
the move to Spain was not linked to football
-  2 May 2012 Appeal to CAS
10
-  Club:
-  Move to Spain not linked to football: family's decision
for father’s difficult economic situation in Poland
-  Father was already specialized in ceramics and close to
Villareal there is a ceramics industrial district
-  Charter of Fundamental Rights is violated
-  FIFA:
-  Art. 19 FIFA RSTP must be interpreted strictly
-  Move also related to football is sufficient to prevent the
exception
-  Burden of prove is on the Club and it did not prove the
applicability of the exception
11
-  CAS Award of April 2013:
-  Article 19 applicable also to amateur players
-  Burden of proof lies with Club
-  Father’s interview with a Polish newspaper that he would
not hesitate to move abroad to facilitate his son’s career
-  Link between Player and Club started 3 months before
father’s employment contract
-  Interest of Player to play in new country is understandable,
but irrelevant
-  Art. 19 must be applied strictly because it protects the well
being of minors
-  Art. 19 does not violate EU rules on free movement nor the
EU Charter on Fundamental Rights
12
Conclusion:
§  In 2011 over 13,000 young people under 18
were signed by clubs in other countries
§  Players under 18 move most commonly by
following their parents: almost 90% of the
13,000 transfers of minors in 2011 were
covered by the exemptions
§  Is the framework under art. 19 RSTP helping to
ensure that minors are protected?
13
II. A “Virtual” Corruption Case
Ø  In 2011, 3 members of the FIFA Executive Committee – Amos
Adamu (Nigeria), Amadou Diakite (Mali) and Ahongalu
Fusimalohi (Tonga) – appealed to the CAS against the decisions
of the FIFA Appeal Committee imposing on them a ban from any
football-related activity at national and international level for 3
years and a fine of CHF 10,000
Ø  The specificity of these 3 cases lies in the fact that the Appellants
were filmed and recorded by hidden cameras and recorders, while
meeting twice with undercover Sunday Times journalists posing
as lobbyists trying to support the US bid for the 2018 and 2022
FIFA World Cups. Those recordings were given by the Sunday
Times to FIFA and were the basis of those cases
14
Ø  The FIFA Executive Committee consists of 24 members: the
President, 8 vice-presidents, and 15 members appointed by the
Confederations and the National Federations
Ø  The Executive Committee decides the host country and dates of the
final phases of the World Cup and other FIFA tournaments
Ø  For the 2018 FIFA World Cup, the following countries bid to host the
final phase: Russia, England, Belgium-Netherlands, Spain-Portugal
Ø  For the 2022 FIFA World Cup the bidders were Australia, Japan,
Korea, Qatar, USA
Ø  On 2 December 2010, the FIFA Executive Committee chose Russia
for 2018 and Qatar for 2022
15
Ø  On 17 October 2010, the British weekly newspaper
Sunday Times published an article entitled “Foul play
threatens England’s Cup bid; Nations spend vast
amounts in an attempt to be named World Cup host but
as insight finds, $ 800,000 offered to a FIFA official can
be far more effective”
Ø  The newspaper reported strong suspicions of corruption
in connection with the tender process to host the World
Cups and concluded that it was more effective and
cheaper to obtain the organization of the World Cup by
offering bribes than by presenting a serious bid
Ø  The covert inquiry was conducted by some Sunday Times journalists
who approached several FIFA executives pretending to be lobbyists
working for a private company allegedly named Franklin Jones, hired
by US companies eager to secure deals to unofficially support the
official bids presented by the US federation
16
Ø  CAS 2011/A/2426 Amos Adamu v. FIFA
Award of 24 February 2012
Ø  TAS 2011/A/2433 Amadou Diakite c. FIFA
Award of 8 march 2012
Ø  CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA
Award of 8 March 2012
17
CAS 2011/A/2426 Amos Adamu v. FIFA
Ø  Mr Adamu was contacted via email and telephone by two
reporters – a man and a woman – who did not reveal their
true identity and profession but presented themselves as
“David Brewster” and “Claire” of Franklin Jones. In the
Summer of 2010 the reporters obtained to organize two
meetings with Mr Adamu, one in London and one in Cairo
Ø  On 31 August 2010, in a London hotel bar, Mr Adamu met the
two undercover reporters allegedly working for Franklin Jones.
The conversation lasted about 45 minutes
Ø  On 15 September 2010, in the garden bar of a hotel in Cairo,
Mr Adamu had another meeting with the undercover
journalists. The conversation lasted about 30 minutes
18
Ø  On 1 October 2010, the FIFA Secretary General warned all FIFA
ExCo members (by email and DHL) of the fact that a company
operating under the name Franklin Jones had recently approached
various ExCo members offering support for football development
programs in case the US won the bid
Ø  Mr Adamu claimed that he had not read such communication from
FIFA until the late morning of 14 October 2010, as he had been
visiting his farm in a remote place of Nigeria, where he allegedly
had no access to his emails and could not be reached by phone or
in any other manner
Ø  On 14 October 2010, the Sunday Times informed by email Mr
Adamu that an article was about to be published reporting his
meetings and his acceptance to sell his vote in favour of the US bid,
making clear that the meetings had been filmed and recorded
19
Ø 
Legal Issues of the Adamu/Diakite/Fusimalohi cases:
– 
FIFA violation of due process and power of review of CAS
– 
Admissibility of the evidence:
• 
Legal nature of disciplinary proceedings (criminal or civil?)
• 
Illegality of the recordings?
• 
Applicability of the FIFA rules on evidence
• 
Protection of Mr Adamu’s personality rights
• 
The balance between Mr Adamu’s and other private or
public interest; art. 28 Swiss CC:
«1. Any person whose personality rights are unlawfully infringed may apply to the
court for protection against all those causing the infringement.
2. An infringement is unlawful unless it is justified by the consent of the person
whose rights are infringed or by an overriding private or public interest or by
law.»
– 
Merits
20
III. The FC Sion Case
Ø  CAS 2009/A/1880-1881 FC Sion & El Hadary v. FIFA & Al-Ahly
Ø 
§ 
Partial Award on Lis Pendens and Jurisdiction
§ 
Final Award
2011/O/2574 UEFA v. Olympique des Alpes/FC Sion
21
Ø  “FC Sion” is an amateur club playing in the Swiss sixth league and,
at the same time, is the name regularly used by a professional club
competing in the Swiss Super League and constituted as a “société
anonyme” with the corporate name “Olympique des Alpes SA”
Ø  At the beginning of the 2005-2006 season, further to a rule obliging
all top Swiss clubs to be organized as limited companies, Olympique
des Alpes SA became a member of League and of the Swiss FA and
took the place and the name of the historical club FC Sion
Association, taking over the whole professional sector and the
position in the Super League held hitherto by the latter
Ø  In the common use by the SFA, the SFL, the media, the fans and the
public, the professional club keeps being referred to simply as FC
Sion. Even Olympique des Alpes SA regularly tags itself as FC Sion in
its own documents, such as in its letterhead, in the letters of its
executives to third parties, in its internet site, and the like
22
CAS 2009/A/1880-1881 FC Sion & El-Hadary v. FIFA & Al-Ahly
Ø  On 1 January 2007, El-Hadary and Al-Ahly signed a contract lasting
until the end of the 2009-2010 football season
Ø  On 14 February 2008, a meeting took place in Cairo between ElHadary, Al-Ahly and FC Sion, negotiating a possible transfer
Ø  On 15 February 2008, the President of FC Sion informed Al-Ahly that
FC Sion had reached an agreement with El-Hadary and proposed to
meet in Geneva to “find a friendly settlement between our clubs”
Ø  On the same day, El-Hadary and FC Sion signed an employment
contract until the 2010-2011 season and filed with the Swiss FA a
request to register El-hadary as a professional player with FC Sion
Ø  The Swiss FA requested the Egyptian FA to issue the International
Transfer Certificate (ITC) for the Player in favour of FC Sion
23
Ø  On 27 February 2008, FC Sion sent an urgent letter to FIFA invoking
the FIFA Regulations on the Status and Transfer of Players and
requesting FIFA to issue the ITC to allow El-Hadary to be registered
as a player of FC Sion; El-Hadary himself signed the letter at the
bottom, explicitly agreeing to its contents and sharing the request
submitted to FIFA
Ø  On 11 April 2008, the Single Judge of the FIFA Players’ Status
Committee granted a provisional ITC
Ø  The Single Judge emphasised that the “decision is without prejudice
and pending the outcome of a contractual labour dispute […] the
Chamber would have to express itself on the questions if a breach of
contract was committed by one or both of the parties, whether with
or without just cause as well as on the possible consequences
thereof, i.e. financial compensation and/or sporting sanctions”
24
Ø  On 12 June 2008, Al-Ahly wrote to FIFA lodging a claim against ElHadary and “the Swiss club FC Sion” for, respectively, breach of
contract and inducement to breach of contract, requesting FIFA to
impose sanctions on them and to grant a pecuniary compensation in
favour of Al-Ahly
Ø  On 23 June 2008, the attorney already empowered by FC Sion wrote
to FIFA stating that “FC Sion” had forwarded him Al-Ahly’s claim and
had asked him to defend the club on the basis of the power of
attorney already on file with FIFA
Ø  On 15 July 2008, FC Sion argued on a preliminary basis that Al-Ahly
had made a mistake in designating “FC Sion” as a defendant in the
FIFA procedure because “FC Sion” was an amateur club and,
therefore, the claim had to be rejected for “défaut de légitimation
passive”, i.e. for lack of “standing to be sued”
25
Ø  On 16 April 2009, the DRC of FIFA decided to accept Al-Ahly’s claim
and ordered El-Hadary to pay EUR 900,000 to Al-Ahly, with FC Sion
jointly and severally liable for the payment of such compensation
Ø  Also, the DRC sanctioned: (1) El Hadary with four months of
ineligibility to play in official matches and (2) FC Sion with a ban from
registering any new players, either nationally of internationally, for
the two next entire and consecutive registration periods
Ø  On 18 June 2009, both El-Hadary and “FC Sion Association” filed an
Appeal with the CAS. El-Hadary also requested an interim stay of the
DRC Decision and contested the jurisdiction of the CAS
Ø  On 29 June 2009, El-Hadary filed a civil law suit with the District
Court of Zurich requesting the annulment of the DRC Decicion on the
basis of Article 75 Swiss CC
Ø  On 13 November 2009, UEFA intervened at the CAS as amicus curiae
26
Legal Issues:
Ø  El-Hadary
§ 
Lis Pendens
§ 
Jurisdiction
§ 
Violation by FIFA of due process rights and de novo ruling
§ 
Art. 17 FIFA Transfer Regulations
Ø  FC Sion
§ 
Violation by FIFA of due process rights and de novo ruling
§ 
FC Sion Association’s standing to appeal
§ 
Art. 17 FIFA Transfer Regulations
27
IV. License case: Málaga CF v. UEFA
Ø  CAS 2013/A/3067 Málaga CF SAD v. UEFA
28
Ø  In accordance with Articles 65-66 UEFA Club Licensing and
Financial Fair Play Regulations, Málaga submitted to the RFEF
(which forwarded it to UEFA) its financial declaration stating that as
of 30 June 2012 it had overdue payables of EUR 3,845,000
towards other football clubs and of EUR 5,575,000 towards social
and/or tax authorities
Ø  On 3 August 2012, the UEFA Investigatory Chamber found that
Málaga was in breach of the rules and requested an independent
audit, which confirmed the existence of overdue payables on 30
June 2012 as communicated by Málaga and indicating that an
additional amount of EUR 4,599,000, which had been considered
by Málaga as deferred by the tax authorities, had actually to be
considered as an overdue payable due to the lack of a written
agreement signed by the tax authorities to extend the deadline for
payment
29
Ø  On 15 October 2012, UEFA received the new Málaga statement on
the financial situation as of 30 September 2012. In this statement,
Málaga maintained that there were no overdue payables towards
other clubs, employees and/or social/tax authorities, and further
disclosed the existence of debts towards tax authorities for an
overall amount of EUR 15,476,000, which, however, according to
Málaga, had to be considered as deferred
Ø  On the same date, the UEFA received a communication dated 2
October 2012 by the Spanish tax authorities informing UEFA of the
issuance of a seizure order for EUR 23,332,000 on any credits of
the Club held by the UEFA. The tax authorities further informed the
UEFA that no “installment agreements” had been approved and
that, up to this date, “revenues made were exclusively a result of
enforcement actions by the Spanish Tax Agency”
30
Ø  On 9 November 2012, the Spanish tax authorities sent a letter to
the UEFA, communicating, inter alia: “PRE-AGREEMENT OF
PAYMENT RESCHEDULING OF MALAGA CLUB DE FUTBOL SAD
DEBTS.– In relation to the enforced collection administrative
procedure of payment against MALAGA CF (…), we inform you that,
once MALAGA CF has made the payment of 9.000.000 € that this
entity has to make to the Spanish Tax Agency (…), we will proceed
to sign an agreement in order to split/postpone the outstanding
payment in the next days. The date of payment for the outstanding
amount will be within January of 2013 (also for new amounts
accrued from today´s date)”
31
Ø  On 26 November 2012, the Spanish tax authorities sent to UEFA a
further letter which stated inter alia: on 30 September 2012, the
decision on Málaga‘s application for postponement of payment for
the amount of EUR 8,450,406.16 was pending and, accordingly, the
enforcement of the tax debt was deferred until 2 October 2012; the
“conditional agreement” for the postponement of the payment
remained in force but as a condition Málaga had to pay EUR
10,100,000; (iv) the measures adopted by the tax authorities on 15
October 2012 (i.e. the seizure order) with regard to the amounts
which UEFA owed to the Club were “”ordinary measures”, “”in the
sense that they [weren’t] different than those adopted against
other parties that may still owe amounts to Malaga”.
32
Ø  On 21 December 2012, the UEFA Adjudicatory Chamber decided:
1.  To impose a fine of € 300,000 on Malaga CF
2.  To exclude Malaga CF from participating in the next UEFA club
competition for which it would otherwise qualify on its results or
standing in the next four seasons
3.  Subject to the condition set out at paragraph 4, to impose on
Malaga CF a further exclusion from the next UEFA club
competition for which it would otherwise qualify on its results or
standing in the next four seasons
4.  If Malaga is able to prove by 31 March 2013 that it is in
compliance with Articles 65-66 so that as at that date it has no
overdue payables, then the exclusion referred to at paragraph 3
shall not take effect
33
Ø  On 3 January 2013 the Spanish tax authorities issued to Málaga a
document which stated that – in view of the payments
effectuated by Málaga – the request for deferral of outstanding
amounts had been granted. Consequently, the Club had to pay
the remaining amounts in two installments, i.e. EUR
1,362,568.52 by 20 January 2013, and EUR 3,869,185.06 by 5
February 2013
Ø  By 5 February 2013, Málaga had paid the outstanding amounts
provided for in the deferral plan agreed with Spanish tax
authorities
Ø  On 24 January 2013, Málaga filed a Statement of Appeal against
the UEFA Decision with the CAS
34
Ø  Before the CAS both parties agreed that:
Ø  As of 30 September 2012:
• 
Málaga owed EUR 15,400,000 towards tax authorities. There
was a debt referral agreement in the amount of EUR
8,400,000. For the remainder (EUR 7,000,000), the Appellant
requested a unilateral postponement within the “voluntary
term of payment”;
• 
as for the debt of EUR 2,700,000 towards clubs and of EUR
5,800,000 towards players/employees, there was a valid debt
deferral agreement with the relevant creditors
Ø  As of 31 March 2013:
• 
Málaga was in compliance with Articles 65-66
35
Legal Issues before the CAS
Ø  Concept of “overdue payables”:
national law or UEF rules?
Ø  As of 30 September 2012, was there a
“written agreement” with the tax
authorities?
Ø  Proportionality of the sanction
36
Thank you!
Massimo Coccia
Professor of International Law
Partner at
Coccia De Angelis Pardo & Associati
Studio Legale e Tributario
E-mail: m.coccia@cdaa.it
37

Laudos del TAS sobre Fútbol

Transcription

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