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2012 Football Other Dismissed English Appeal Procedure

Arbitrators

President: Luigi Fumagalli

Decision Information

Decision Date: June 21, 2013

Case Summary

The case involves a legal dispute between Fenerbahçe Spor Kulübü (the Club) and Roberto Carlos Da Silva Rocha (the Player), with FIFA as a respondent, adjudicated by the Court of Arbitration for Sport (CAS) in 2013. The Club sought enforcement of a prior CAS award ordering the Player to pay a specified sum, which he failed to comply with, prompting the Club to request FIFA's intervention under Article 64 of the FIFA Disciplinary Code (FDC). FIFA declined, arguing its disciplinary authority was limited to CAS awards issued in appeal proceedings, not ordinary arbitrations. The Club appealed FIFA's decision to CAS, leading to a complex legal battle over jurisdictional and procedural issues. The key legal principles examined included lis pendens, tempus regit actum, and lex mitior. The Panel, comprising Prof. Luigi Fumagalli, Mr. José Juan Pintó Sala, and Prof. Ulrich Haas, ruled that no lis pendens existed as there was no evidence of pending state court proceedings. The principle of tempus regit actum was affirmed, meaning disciplinary rules in force at the time of the act apply, though mitigated by lex mitior, which allows for the application of more lenient subsequent rules. The Panel clarified that Article 64 of the FDC 2009 pertained to disciplinary proceedings and could apply to CAS awards in ordinary arbitration, unlike the 2011 version, which explicitly limited its scope to CAS appeal decisions. The Panel also reaffirmed CAS's de novo review power, allowing it to uphold decisions with correct outcomes despite flawed reasoning. The lex mitior principle was recognized as fundamental, covering both sanctions and the definition of offenses, and could not be waived without explicit consent. The nature of the dispute was deemed not exclusively disciplinary, as it involved financial interests and competence questions rather than pure disciplinary matters. The Panel concluded that the Player should benefit from the lex mitior principle, as his failure to comply with the CAS award was no longer a disciplinary offense under the FDC 2011. The Club's appeal was dismissed, with the Panel emphasizing the distinction between disciplinary proceedings and those motivated by financial interests. The ruling upheld FIFA's decision and dismissed all other requests, reinforcing the importance of precise legal interpretation and the procedural autonomy of CAS in reviewing and enforcing its awards. The case highlights the complexities of enforcing arbitral awards within sports governance and the balance between disciplinary enforcement and contractual disputes. The decision underscores the need for clear regulatory frameworks to ensure compliance and legal certainty in football-related disputes. The final award was issued on June 21, 2013.

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