Laudos del TAS sobre Fútbol

Transcription

1 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. Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 1

2 The Court of Arbitration for Sport (CAS) Tribunal Arbitral du Sport (TAS) In its judgment of 27 May 2003 (Lazutina case, 4P /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. Seated in Lausanne, Switzerland Established by the IOC in 1984 Reformed and passed under the control of an independent foundation (ICAS) in 1994 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 2

3 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 3

4 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 4

5 I. Transfer of Minor Players Art. 19 FIFA RSTP Protection of Minors A)Principle: International transfers of players under 18 are prohibited (both professionals and amateurs) (CAS 2007/A/1403, RC Racing de Santander SAD vs Club Estudiantes de la Plata, para. 81) B) Purpose: i.to protect minor players from abuse and mistreatment ii.to give legal certainty through consistent implementation Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 5

6 I. Transfer of Minor Players Art. 19 Sec. 2.a FIFA RSTP Art. 19 Sec. 2.b FIFA RSTP Art. 19 Sec. 2.c FIFA RSTP C) Only three exceptions: a. NO LINK WITH FOOTBALL: The player s parents move to the country in which the new club is located for reasons not linked to football. b. EU/EEA: The transfer takes place within the territory of the European Union (EU) or European Economic Area (EEA) and the player is aged between 16 and 18. In this case, the new club must fulfill the following minimum obligations: i. adequate football education and training 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. c. BORDER LOCATIONS: The player lives no further than 50km from a national border and the club with which the player wishes to be registered in the neighbouring association is also within 50km of that border. The maximum distance between the player s domicile and the club s headquarters shall be 100km Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 6

7 I. Transfer of Minor Players CAS 2005/A/ 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 7

8 I. Transfer of Minor Players - 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 8

9 I. Transfer of Minor Players - 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 9

10 I. Transfer of Minor Players 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 10

11 I. Transfer of Minor Players - 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 11

12 I. Transfer of Minor Players - 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 12

13 I. Transfer of Minor Players 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? Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 13

14 II. A Virtual Corruption Case 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 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 14

15 II. A Virtual Corruption Case The FIFA Executive Committee consists of 24 members: the President, 8 vice-presidents, and 15 members appointed by the Confederations and the National Federations The Executive Committee decides the host country and dates of the final phases of the World Cup and other FIFA tournaments For the 2018 FIFA World Cup, the following countries bid to host the final phase: Russia, England, Belgium-Netherlands, Spain-Portugal For the 2022 FIFA World Cup the bidders were Australia, Japan, Korea, Qatar, USA On 2 December 2010, the FIFA Executive Committee chose Russia for 2018 and Qatar for 2022 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 15

16 II. A Virtual Corruption Case 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 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 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 16

17 II. A Virtual Corruption Case CAS 2011/A/2426 Amos Adamu v. FIFA Award of 24 February 2012 TAS 2011/A/2433 Amadou Diakite c. FIFA Award of 8 march 2012 CAS 2011/A/2425 Ahongalu Fusimalohi v. FIFA Award of 8 March 2012 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 17

18 II. A Virtual Corruption Case CAS 2011/A/2426 Amos Adamu v. FIFA Mr Adamu was contacted via 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 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 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 18

19 II. A Virtual Corruption Case On 1 October 2010, the FIFA Secretary General warned all FIFA ExCo members (by 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 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 s and could not be reached by phone or in any other manner On 14 October 2010, the Sunday Times informed by 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 19

20 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 II. A Virtual Corruption Case Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 20

21 III. The FC Sion Case CAS 2009/A/ FC Sion & El Hadary v. FIFA & Al-Ahly Partial Award on Lis Pendens and Jurisdiction Final Award 2011/O/2574 UEFA v. Olympique des Alpes/FC Sion Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 21

22 III. The FC Sion Case 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 At the beginning of the 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 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 22

23 III. The FC Sion Case CAS 2009/A/ FC Sion & El-Hadary v. FIFA & Al-Ahly On 1 January 2007, El-Hadary and Al-Ahly signed a contract lasting until the end of the football season On 14 February 2008, a meeting took place in Cairo between El- Hadary, Al-Ahly and FC Sion, negotiating a possible transfer 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 On the same day, El-Hadary and FC Sion signed an employment contract until the season and filed with the Swiss FA a request to register El-hadary as a professional player with FC Sion The Swiss FA requested the Egyptian FA to issue the International Transfer Certificate (ITC) for the Player in favour of FC Sion Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 23

24 III. The FC Sion Case 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 On 11 April 2008, the Single Judge of the FIFA Players Status Committee granted a provisional ITC 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 24

25 III. The FC Sion Case On 12 June 2008, Al-Ahly wrote to FIFA lodging a claim against El- Hadary 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 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 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 25

26 III. The FC Sion Case 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 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 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 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 On 13 November 2009, UEFA intervened at the CAS as amicus curiae Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 26

27 III. The FC Sion Case Legal Issues: El-Hadary Lis Pendens Jurisdiction Violation by FIFA of due process rights and de novo ruling Art. 17 FIFA Transfer Regulations 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 27

28 IV. License case: Málaga CF v. UEFA CAS 2013/A/3067 Málaga CF SAD v. UEFA Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 28

29 IV. License case: Málaga CF v. UEFA In accordance with Articles 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 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 29

30 IV. License case: Málaga CF v. UEFA On 15 October 2012, UEFA received the new Málaga statement on the financial situation as of 30 September 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 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 Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 30

31 IV. License case: Málaga CF v. UEFA 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 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) Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 31

32 IV. License case: Málaga CF v. UEFA 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, 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. Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 32

33 IV. License case: Málaga CF v. UEFA 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 so that as at that date it has no overdue payables, then the exclusion referred to at paragraph 3 shall not take effect Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 33

34 IV. License case: Málaga CF v. UEFA 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, by 20 January 2013, and EUR 3,869, by 5 February 2013 By 5 February 2013, Málaga had paid the outstanding amounts provided for in the deferral plan agreed with Spanish tax authorities On 24 January 2013, Málaga filed a Statement of Appeal against the UEFA Decision with the CAS Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 34

35 IV. License case: Málaga CF v. UEFA Before the CAS both parties agreed that: 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 As of 31 March 2013: Málaga was in compliance with Articles Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 35

36 IV. License case: Málaga CF v. UEFA Legal Issues before the CAS Concept of overdue payables : national law or UEF rules? As of 30 September 2012, was there a written agreement with the tax authorities? Proportionality of the sanction Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 36

37 Thank you! Massimo Coccia Professor of International Law Partner at Coccia De Angelis Pardo & Associati Studio Legale e Tributario m.coccia@cdaa.it Prof. Avv. Massimo Coccia, LL.M. Madrid, 29 de marzo de 2014 Laudos TAS sobre Fútbol 37