2824 Besiktas JK V

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2012/A/2824 Besiktas JK v. Union des Associations Européennes de Football (UEFA), award of 31 October 2012 Panel: Mr Mark Hovell (United Kingdom), President; Mr Michael Gerlinger (Germany); Mr Rui Botica Santos (Portugal) Football Disciplinary sanction due to violation of the UEFA Club Licensing and Financial Fair Play Regulations Interpretation of a rule (Annex VIII UEFA CL&FFP Regulations) UEFA right to challenge the issuance of licences in case of breach of the UEFA CL & FFP Regulations Fair and equal treatment 1. According to Annex VIII of the UEFA CL & FFP Regulations, paragraph (1)(d), to dispute a claim brought by a creditor, the party facing the claim has to “contest” it and needs to demonstrate that it is “manifestly unfounded”. The provision is perfectly clear and lawful. 2. UEFA cannot be deemed to accept every single federation’s or association’s decision to issue their clubs with license. It must maintain the right to challenge these decisions against both the license holder (club) and license grantor (federation) at a later stage should it become aware of any breaches of the UEFA CL & FFP Regulations. However, there is nothing in the UEFA CL & FFP Regulations that obliges UEFA to take action against the license grantor in order to sanction the license holder when the case is solely related to the license holder. 3. By gaining a license to compete in the Europa League that it should not have received due to the concealment of overdue payables labeled as “disputed”, by continuing to breach the regulations during the monitoring process by continually labeling many and large overdue payables as “disputed”, whilst not contesting these in any way, and by systematically ignoring its debts until forced by FIFA or CAS to pay, a party commits numerous breaches of the UEFA club licensing and financial regulation. These breaches are such that a competition ban and a fine are fair and proportionate. I. THE PARTIES 1. Beşiktaş Jimnastik Kulübü (hereinafter referred to as “Beşiktaş” or the “Appellant” or “the Club”) is a Turkish professional football club with its registered office in Istanbul, Turkey. CAS 2012/A/2824 2 Besiktas JK v. UEFA, award of 31 October 2012 2. The Union des Associations Européennes de Football (hereinafter referred to as “UEFA” or the “Respondent”) is an association under Articles 60 et seq. of the Swiss Civil Code, with headquarters in Nyon, Switzerland. UEFA is a confederation recognised by the Fédération Internationale de Football Association (hereinafter referred to as “FIFA”) and promotes and governs football in Europe. II. FACTUAL BACKGROUND 3. Below is a summary of the main relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced in the present proceedings. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in this award only to the submissions and evidence it considers necessary to explain its reasoning. 4. On 22 May 2008, [the club X.] (hereinafter referred to as “[Club X.]”) entered into a contract with the Appellant for the transfer of the player [T.] to the Appellant from [Club X.] for the net transfer fee of €4,500,000 payable: €1,500,000 by 1 July 2008, €1,500,000 by 30 June 2009 and €1,500,000 by 30 June 2010 (hereinafter referred to as “the T-Contract”). 5. On 28 May 2008, [Club X.] entered into a further contract with the Appellant for the transfer of the player [S.] by way of a loan from 1 July 2008 to 30 June 2009 and on a permanent basis from 1 July 2009 (hereinafter referred to as “the S-Contract”). Under the S-Contract the Appellant was to pay €300,000 net by 1 July 2008 in respect of the loan period and a further €4,400,000 in respect of the definitive transfer by way of the following instalments: €1,450,000 by 30 June 2009, €1,450,000 by 30 June 2010 and €1,500,000 by 30 June 2011. 6. On 29 March 2010, [Club X.], at the Appellant’s request, and the Appellant agreed that the remaining monies due and owing under the T-Contract and the S-Contract would be paid as follows: €2,950,000 by 30 June 2010 and €1,500,000 by 30 June 2011 (hereinafter referred to as “the Payment Agreement”). The Payment Agreement provided that, in case of default in the payment of any of the amounts due under the agreement, the whole of the remaining payments would become immediately due. Further, the Appellant agreed to pay [Club X.] €350,000 in default interest due under the Payment Agreement. 7. On 9 August 2010, [Club X.] filed a request for arbitration with the Court of Arbitration for Sport (hereinafter referred to as “the CAS”) seeking to enforce payment under the Payment Agreement. 8. On 14 December 2010, the Appellant made a payment of €1,450,000 to [Club X.]. 9. On 31 March 2011, which was the last date upon which overdue payables could be settled as per the UEFA Club Licensing and Financial Fair Play Regulations (Edition 2010) (hereinafter referred to as “UEFA CL & FFP Regulations”), in order to be awarded a licence to compete CAS 2012/A/2824 3 Besiktas JK v. UEFA, award of 31 October 2012 in the 2011/12 Season UEFA Europa League, the Appellant had overdue payables due to [Club X.] (€1,500,000 in relation to the Payment Agreement) and additional overdue payables to [Club R.] (€750,000 in relation to the last instalment of a transfer fee for the player, [F.]). 10. On 31 May 2011, the Turkish Football Federation (hereinafter referred to as “TFF”) sent the UEFA administration the list of clubs to which it had granted licences for 2011. This list included Beşiktaş, which had qualified for the 2011/12 UEFA Europa League on sporting merit. 11. On 30 June 2011, the Appellant’s transfer payables table provided that the Appellant owed €1,608,000 in relation to [S.] and €1,669,000 in relation to [T.], but stated that both amounts were “in dispute”. Further, the Appellant stated that €365,000 was owed in relation to solidarity contributions for the player [R.]; €225,000 in solidarity contributions for the player [M.]; and €750,000 in relation to a transfer instalment for the player [F.]; all of which were reported as “disputed”. 12. On 15 July 2011 the TFF submitted to the UEFA Club Financial Control Panel (“UEFA CFCP”) information based on the figures provided by Beşiktaş as part of the monitoring procedure, including the overdue payables position of Beşiktaş as at 30 June 2011, in accordance with the UEFA CL & FFP Regulations. Subsequently the UEFA CFCP asked the TFF for additional monitoring information in order to establish Beşiktaş situation as at 30 September 2011. 13. On 18 July 2011, the CAS upheld [Club X.] request for arbitration and awarded [Club X.] the net amount of €3,350,000 plus interest pursuant to the breached Payment Agreement. 14. On 30 September 2011 the Appellant’s transfer payables table provided that the Appellant owed €1,608,000 in relation to [S.] and €1,669,000 in relation to [T.] but stated that both amounts were “in dispute”. Further, the Appellant stated that €364,000 was owed in relation to solidarity contributions for the player [R.]; €103,000 in solidarity contributions for the player [M.]; and €750,000 in relation to a transfer instalment for the player [F.]; all of which were reported as “disputed”. 15. On 17 October 2011, the TFF forwarded to the UEFA CFCP the information provided by Beşiktaş in relation to its overdue payables position as at 30 September 2011. 16. On 20 October 2011, the Appellant paid €3,000,000 to [Club X.]. 17. On 25 November 2011, the UEFA CFCP decided to commission a compliance audit to verify the information provided by Beşiktaş. 18. On 19 and 20 December 2011, Pricewaterhouse Coopers (hereinafter referred to as “PWC”) conducted the audit at the TFF headquarters under the supervision of the UEFA administration. CAS 2012/A/2824 4 Besiktas JK v. UEFA, award of 31 October 2012 19. On 23 January 2012, PWC submitted its report confirming the existence of overdue payables and also indicated that some figures provided by the Club were incorrect, having discussed its draft report with and having it approved by the TFF and Beşiktaş. On the same day, the UEFA administration submitted its compliance report and the PWC report to the UEFA CFCP. 20. On 30 March 2012, the Appellant entered into a further agreement with [Club X.] in respect of the outstanding amounts from the CAS award. The parties acknowledged that €748,747.42 remained due and the parties agreed that the Appellant would make the following payments: €400,000 by 2 May 2012 and €348,747.42 by 3 May 2012. 21. On 19 April 2012, the UEFA disciplinary inspector submitted his report, in which he concluded that Beşiktaş had violated the UEFA CL & FFP Regulations. 22. On 1 May 2012, Beşiktaş submitted its petition in response of the allegations of the UEFA disciplinary inspector. 23. On 1 May 2012, the UEFA Control & Disciplinary Body rendered its decision finding the Club guilty of violating not only Articles 65 and 66 of the UEFA CL & FFP Regulations but also the principles of good faith and transparency (hereinafter referred to as the “First Decision”) and held: “1.

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