2436 Associaçāo Académica De Coimbra – OAF V

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2011/A/2436 Associaçāo Académica de Coimbra – OAF v. Suwon Samsung Bluewings FC, award of 25 May 2012 Panel: Mr Dirk-Reiner Martens (Germany), President; Mr Efraim Barak (Israel); Mr Michael Beloff QC (United Kingdom) Football Transfer Decision of the federation Interpretation of the words “final and binding” Starting time of the 21-days time limit for appeal Waiver of the right to appeal 1. On a formal level, if the findings of the decision carry the heading “Decision”, were passed by an organ of the federation and were signed by the federation’s Deputy Secretary General, they clearly bear all the requirements of a “decision” within the meaning of Article R47 of the Code. The fact that the decision is not motivated (i.e. reasoned) cannot, as such, affect its status as a “decision”. 2. The interpretation of the statutes and rules of a sport association has to be objective and always has to start with the wording of the rule which falls to be interpreted. The qualification of a decision as “final and binding” cannot be understood as an exception to Article 63 (1) of the FIFA Statutes so as to render an appeal inadmissible. Article 63(1) of the FIFA statutes itself stipulates that only “final decisions” issued by a FIFA body can be subject to an appeal, so as to establish the finality of a decision as a prerequisite for an appeal according to Article 63(1) of the FIFA statutes rather than an exclusion of its admissibility. Similarly, Article 63 (7) of the FIFA Statutes regulates the start date for an appeal against “internally final and binding doping related” decisions. The same reasoning applies to the words “final and binding” in combination as does to the words in isolation. 3. Article 15(1) of the Rules governing the procedures of the PSC and the DRC by stipulating that a decision becomes final and binding although no grounds for it have been notified to the parties, serves to start the running of the time period for appeal according to Article 63 (1) of the FIFA Statutes. 4. Contrary to the corresponding provision of the Swiss Code of Civil Procedure, that expressly provides that a party is deemed to waive its right to appeal if it does not request the reasons for a decision, Article 15(1) of the Rules governing the procedures of the PSC and the DRC does not express or contemplate such a consequence. If FIFA had intended to provide in Article 15(1) a result similar to that provided for in the corresponding provision of the Swiss Code of Civil Procedure, it would have had to use clear and precise language to achieve such a draconian consequence. CAS 2011/A/2436 2 Associaçāo Académica de Coimbra – OAF v. Suwon Samsung Bluewings FC, award of 25 May 2012 Associaçāo Académica de Coimbra (“Coimbra” or “Appellant”) is a football club with its registered office in Coimbra, Portugal, and is a member of the Portuguese League for Professional Football (LPFP – Liga Portuguesa de Futebol Professional) which itself is affiliated to the Portuguese Football Federation (FPF – Federação Portuguesa de Futebol) which in turn is a member of FIFA. FIFA is the world governing body for the sport of football and is registered in Zurich, Switzerland. Suwon Samsung Bluewings FC (“Suwon” or “Respondent”) is a football club with its registered office in Suwon City, Republic of Korea and is a member of the Korea Professional Football League (K-League). The latter is affiliated to the Korea Football Association which in turn is a member of FIFA. M. (the “Player”) is a Brazilian football player. Since the season 2003/04 the Player was registered with Suwon. On 22 January 2005 the Appellant and the Respondent signed an agreement regarding the Player’s transfer from Suwon to Coimbra (the “Transfer Agreement”). The relevant parts of the Transfer Agreement read as follows: “1. Samsung [Respondent] agrees to transfer the player [M.] (hereinafter called “Player”) to Académica [Appellant] under the following conditions. 2. Académica agrees to pay Samsung a total amount of USD 1.8 million (NET). The payment is set as following: - within 7 days after signed the contract: USD 500,000$ (NET) - 31 December, 2005: USD 500,000$ (NET) - 30 June, 2006: USD 400,000$ (NET) - 30 June, 2007: USD 400,000$ (NET) 3. If Académica transfers the Player to another club before 31 December, 2006, Académica must pay rest of transfer money in lump to Samsung within 15 days. 4. Académica cannot transfer the Player to another club under: - USD 1,800,000 (NET) during season 2005/06; - USD 1,200,000 (NET) during season 2006/07; - USD 600,000 (NET) during season 2007/08, and Académica also must pay 25% from the amount of total transfer money whenever Académica transfers the player to another club. 5. In case the Player suffers a lengthy injury or illness certified under medical report from Académica medical department, Académica will be allowed to promote the sale of the Player for a lower amount of those set in clause 4”. The transfer fee provided for in Section 2 of the Transfer Agreement has been paid to Suwon in full. CAS 2011/A/2436 3 Associaçāo Académica de Coimbra – OAF v. Suwon Samsung Bluewings FC, award of 25 May 2012 On 15 January 2006 Coimbra entered into two agreements with Sport Lisboa e Benfica, Futebol SAD (“Benfica”). Copies of these agreements have been provided by Coimbra but were partly or completely illegible because, according to Coimbra, the originals were damaged during an office move. The first of these 15 January 2006 agreements relates to the loan of the Player to Benfica (the “Benfica Loan Agreement”). The copy of this agreement provided by Coimbra was completely illegible but a legible copy was found in the FIFA File made available to the Panel and the parties three days before the hearing. It reads in relevant part: “[Coimbra] cede temporariamente à 1a [Benfica], que aceita, o jogador (…), desde 15 de Janeiro de 2006 até final de época 2005/06. Artigo 2°– A cedencia é gratuita”. Translation: “[Coimbra] transfers temporarily to the 1st [Benfica], which accepts the player (…), as from 15 January 2006 until the season 2005/06. Article 2 – The transfer is gratuitous”. The second 15 January 2006 agreement is entitled “Contrato Promessa de Cedencia Definitivo Direitos Desportivos” (the “Definite Agreement”) and provides for the definite transfer of the Player to Benfica. To the extent legible (in this instance no copy was found in the FIFA File) it states in relevant part: 1. Nesta data as 1a e 2a Outorgantes [Benfica and Coimbra] celebraram um contrato de cedência temporária do futebolista profissional [M.], até ao final da época 2005/06; 2. Pelo presente instrumento a 2a Outorgante [Coimbra] promete ceder definitivamente, á 1a[Benfica], o (illegible) … promete comprar, os direitos desportivos que para si resultam da qualidade de en (illegible) … patronal do futebolista profissional [M.]. 3. A venda será feita pe (illegible) …………….. no valor de 2.660.000 (dois milhoes seiscentos a sessenta mil) Euros am dezanove prestaçōes mensais, Iguais e sucessivas de 140,000 (cento e quarenta mil) Euros cada uma, vencendo-se a primeira no final do més de Agosto de 2006 e as restantes no final dos meses subsequentes. …. 6. O contrato definitivo será celebrado após 30 de Junho de 2006, no prazo de cinco dias úteis a contar de interpelaçāo para o efeito a fazer pela 1a a 2a Outorgante (illegible) …. Translation: 1. On the present date, the 1st and 2nd Grantors [Benfica and Coimbra] concluded a temporary transfer agreement for the professional football player [M.] until the end of the season 2005/06; CAS 2011/A/2436 4 Associaçāo Académica de Coimbra – OAF v. Suwon Samsung Bluewings FC, award of 25 May 2012 2. By means of this agreement the 2nd Grantor [Coimbra] hereby promises to transfer definitively to the 1st [Benfica], the (illegible) … hereby promises to purchase the sportive rights derived from it in the quality of (illegible) … employer of the of the professional football player [M.]. 3. The sale will be concluded (illegible) …………….. for the value of 2’660’000 (two million six hundred and sixty thousand) Euros in nineteen monthly, equal and successive instalments of 140’000 (one hundred and forty thousand) Euros each, being the first instalment due in the end of August 2006 and the remaining instalments in the end of the subsequent months. …. 6. The definitive agreement will be signed after 30 June 2006, within a time limit of five business days as from the request of the 1st and 2nd Grantors to make (illegible) …. An amount of EUR 840,000 has been paid by Benfica to Coimbra at an unknown date (the FIFA File does not specify the date of the payment but the Decision awards interest as of 10 February 2006 which would indicate that this is the date of payment). Coimbra claims this payment to have been for the loan of the Player only. In July 2006 the Player transferred to Benfica in accordance with the Definite Agreement. Following the Player’s transfer to Benfica Suwon encountered difficulties in collecting the fees due to it under the Transfer Agreement. Eventually, on 12 March 2007 Suwon asked FIFA “to take appropriate action that [Coimbra] strictly fulfill their duty of the contract between us”. On 24 July 2008 Coimbra paid to Suwon an amount of USD 300,000, i.e. 25% of the minimum transfer fee provided for in the Transfer Agreement for a transfer of the Player by Coimbra to another club during the season 2006/07.

Load more