Arbitral Award Court of Arbitration for Sport
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Tribunal Arbitral du Sport Court of Arbitration for Sport /A/4950 Sport Club Internacional v. Esporte Clube Vitoria da Bahia & CBF & STJD & STJD General Prosecutor (decision No. 425/2016) CAS 2017/A/4951 Sport Club Internacional v. Esporte Clube Vitoria da Bahia & CBF & STJD & STJD General Prosecutor (decision No. 71/2016) ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: Ml' Luigi Fumagalli, Professor and Attorney-at-law in Milan, Italy Arbitrators: Ml' Rui Botica Santos, Attorney-at-law in Lisbon, Portugal Ml' Efraim Barak, Attorney-at law in Tel Aviv, Israel in the arbitrations between Sport Club Internacional, Porto Alegre, Brazil Represented by Mr Ross Wenzel, Kellerhals-Carrard, Lausanne, Switzerland, and Ml' David Casserly, Barrister, Lausanne, Switzerland Appellant and 1/ Esporte Clube Vitoria da Bahia, Salvador, Brazil Represented by Messrs Bichara Abidâo Neto, Marcos Motta, Stefano Malvestio and Victor Eleuterio, Bichara e Motta Advogados, Rio de Janeiro, Brazil 2/ Confederaçâo Brasileira de Futebol (CBF), Rio de Janeiro, Brazil Represented by Ml' Lucas Ferrer and Ms Matilde Costa Dias, Pinto Ruiz & Del Valle, Barcelona, Spain 3/ Superior Tribunal de Justiça Desportiva de Futebol (STJD), Rio de Janeiro, Brazil 4/ STJD General Prosecutor, Rio de Janeiro, Brazil Respondents Château de Béthusy Av. de Beaumont 2 CH-1012 Lausanne Tél: +41 21 6135000 Fax: +41 21 6135001 www.tas-cas.org · . CAS 20171N4950 Internacional Y. Vitoria, CBF, STJD & STJD General Prosecutor (No. 425/2016) Tn bunal Arbi tral du SPCliÂs20171N4951 Internacional Y. Vitoria, CBF, STJD & STJD General Prosecutor (No. 7112016) Court of Arbi tration for Sport page 2 1. BACKGROUND 1.1 The Parties 1. Sport Club lnternacional ("lntemacional" or the "Appellant") is a Brazilian football club with seat in Porto Alegre, RS, Brazil, affiliated to the Confederacâo Brasileira de Futebol. ln the season 2016, Intemacional participated in the first division of the Brazilian football championship ("Serie A" or "Brasilierêio") and finished in the 17th position with 43 points: it was therefore relegated to the second division of the Brazilian football championship for the season 2017. 2. Esporte Clube Vitoria da Bahia ("Vit6ria" or the "Second Respondent") is a Brazilian football club affiliated to the Confederacâo Brasileira de Futebol, and has its seat in Salvador, BA, Brazil. ln the season 2016, Vitoria participated in the Brasilierâo and finished with 45 points in the 16th position, i.e. in the lowest position granting the possibility to compete again in the first division of the Brasilierâo in the season 2017. 3. The Confederacâo Brasileira de Futebol ("CBF" or the "Second Respondent") is the Brazilian football association, governing the sport of football in Brazil. CBF has is seat in Rio de Janeiro, RJ, Brazil, and is affiliated to the Fédération Internationale de Football Association ("FIFA"), the governing body of football at worldwide level. 4. The Superior Tribunal de Justiça Desportiva do Futebol ("STJD" or the "Third Respondent") is the highest sports comi in Brazilian football and has jurisdiction to rule on disciplinary matters regarding national football competitions in Brazil. 5. The STJD General Prosecutor (the "STJD General Prosecutor" or the "Fourth Respondent") is a pers on (currently Mr Felipe Bevilacqua) in charge inter alia of prosecuting disciplinary violations falling within the competence of the STJD. 6. Vitoria, CBF, STJD and the STJD General Prosecutor are collectively referred to as the Respondents. 1.2 The Dispute between the Parties 7. Below is a summary of the main relevant facts and allegations based on the Parties' written submissions, pleadings and evidence adduced during these 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, he refers in this award only to the submissions and evidence he considers necessary to explain its reasoning.' 8. This matter arises out of the alleged ineligibility of Mr Victor Ramos Ferreira, a professional football player of Brazilian nationality born on 5 May 1989 (the "Player") to participate in three different toumaments, both regional and national. This led to a The Panel, more specifically, shall make reference to (and quote, where relevant) the English translation of the documents filed in any language other than English. The Panel is aware that some of those translations have been challenged in these proceedings: the point wou Id be underlined ifrelevant. ln any case, the Panel has considered also the original Portuguese or Spanish versions of any such documents. T . C~ 2017/A/4950 Internacional v. Vit6ria, CBF, STm & STJDGeneral Prosecutor (No. 425/2016) n bunal Arbitral elu SP~AS 2017/A/4951 lnternacional v. Vit6ria, CBF, STm & STm General Prosecutor (No. 71/2016) Court of Arbi tration for Sport page 3 number of local clubs filing several cases before the Brazilian sports justice bodies as detailed in this section of the award. One such case was filed by the Appellant, questioning the Player's eligibility to play for the First Respondent against the Appellant in a Brasilierâo match played on 26 March 2016. The Appellant's case was ultimately dismissed by the STm in its decision No. 425/2016 and decision No. 71/2016, which are the subject matter of this appeal. For a clear picture of the background to these appeal proceedings, the Panel also clarified that STJD case No. 42512016 was filed by the Appellant and STJD case No. 71/2016 by Bahia, with the Appellant intervening as an interested party, A. The Transfer and the Registration of the Player 9. On 18 November 2013, the Player signed an employment contract with Monterrey Rayados S.A. de C.V. ("Monterrey"), a Mexican club affiliated to the Mexican Football Federation (the Féderacièn Mexicana de Fùtbol Asociacièn: "FMF"). Such employment contract, according to its Article 9, was valid for a term covering the seasons 2014, 2015, 2016 and 2017. 10. As a result of such employment contract, the P1ayer was registered with FMF. 11. On 15 January 2015, a loan agreement was entered into between Monterrey and Sociedade Esportiva Palmeiras, a Brazilian club affiliated to the CBF ("Palmeiras"). Under said loan agreement (the "Palmeiras Loan"), the Player would play with Palmeiras for a period starting on 1 February 2015 and ending on 31 December 2015. The Palmeiras Loan provided that, at the end of the loan period on 31 December 2015, and in the absence of a "sale" of the Player ta another club, the Player would be available to Monterrey, "owner of ifs economie and federative rights, and should reintegrate the group of such institution as soon as informed in a proper way" (Article 4). 12. As a result of the Palmeiras Loan, the Player' s registration was transferred from FMF to CBF according to an International Transfer Certificate (ITC) issued on 27 January 2017. 13. On 31 December 2015, the loan of the Player to Palmeiras came to an end, without the "sale" of the Player ta another club. 14. On 1 February 2016, the "transfer window" for FMF closed. 15. On 26 February 2016, a loan agreement was signed by Monterrey and Vitoria (the "Vitoria Loan"), under which the Player would render his services ta Vitoria for a period between 1 February 2016 and 31 December 2016. 16. On 29 February 2016, messages were exchanged between Vitoria and Mr Reynaldo Buzzoni, Director of Registration and Transfers of CBF ("Ml' Buzzoni"). While the exact content of such emails is disputed between the parties.? it is common ground that by such messages Vitoria was seeking instructions on how to proceed to implement the transfer of the Player to Vitoria: Vitoria, in fact, alleges that it had discovered that the 2 An alleged tampering by Intemacional with the printouts of such messages is the object of ongoing proceedings in Brazil: see §§ 71-72 below with regard to STm proceedings No. 06/2017 and 10/2017. · . CAS 201 7/N495 0 lnternacional v. Vit6ria, CBF, STJD & STJO General Prosecutor (No. 425/2016) Tnbunal Arbitral du Spc'\!Âs2017/N4951 Internacional v. Vit6ria, CBP, STJO & STJD General Prosecutor (No. 7112016) Court of Arbitration for Sport page 4 Player' s registration had remained in Brazil with the CBF and had not returned to FMF at the end of the Palmeiras Loan. The final answer of the CBF appears to be that the registration had to return to FMF, in light of the ties of the Player with Monterrey, and then that a new loan (and transfer ofregistration) to Brazil had to be effected. 17. As aresult, on 11 March2016, Vitoria: 1. entered into the Transfer Matching System (the "TMS"), established by FIFA according to the FIFA Regulations on the Status and Transfer of Players (the "RSTP"), the instructions for the transfer of the Player's registration to CBF, and ii. sent a letter to FIFA, through CBF, demanding it to grant a special authorization to Monterrey to request the retum of the Player's ITC to FMF (which had closed the transfer window) with the sole purpose of its immediate re-transfer to CBF on the basis of the Vitoria Loan. It is unclear whether this letter was actually forwarded to FIFA. ln any case, no answer was received. 18. On 15 March 2016, Monterrey sent a letter to FMF authorizing the Player, whose registration was still with CBF, to remain in Brazil, on the basis of the loan entered into with Vitoria, "because of the urgency due ta the end of the transfer window tn this South American cauntry, knowing that a special authorization awaits before the competent FIFA bodyfor the player ta be eligible ta play".