TAS - CAS 3140 de 2013

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2013/A/3140 A. v. Club Atlético de Madrid SAD & Real Federación Española de Fútbol (RFEF) & Fédération Internationale de Football Association (FIFA), award of 10 October 2013

Panel: Prof. Petros Mavroidis (Greece), President; Mr Rui Botica Santos (Portugal); Mr Michele

Bernasconi (Switzerland) Football International transfer of minor players Deadline to file the appeal brief Legitimate interest and standing to sue Standing to be sued Restrictive interpretation of Art. 19 para. 2 RSTP Aim of Art. 19 para. 2 lit. a RSTP Burden of proof

1. The twenty-one days deadline as per Article R49 of the CAS Code (and Article 67 of the FIFA Statutes) to file a statement of appeal is a deadline that cannot be extended. This is not the case for the ten days deadline of Article R51 of the CAS Code.

2. In principle, standing to sue is recognised if a person appealing against a certain decision can demonstrate that he or she is sufficiently affected by the appealed decision and has a tangible interest, of financial or sporting nature, at stake. Although he may not have been a party in the first procedure before the FIFA, a minor player has a sufficient interest to file an appeal with the CAS, as he is affected by the decision and has an actual interest to appeal against it, in particular to submit that he has to be considered as benefitting from an exception to Article 19 RSTP.

3. The decision regarding a first registration of a player within a national federation touches upon the relationship between FIFA and its members. When assuming the competences conferred on it according to the RSTP, at least as regards registration, FIFA is exercising an administrative function and, thus, having an impact on its individual members, or on the rights of indirect members. It results from these

principles that the motion to amend an “administrative” decision by an organ of a federation – like FIFA in the present case – is to be directed against FIFA. It is then not required to direct the appeal against the national federation, which transmitted the request to FIFA, and against the club where the player wanted to register.

4. Article 19 RSTP sets key principles designed to protect the interests of minor players.

Therefore, it must be applied in strict, rigorous and consistent manner. This means that there can be no other exceptions to the principle of Article 19 RSTP than those carefully drafted in paragraph 2 of said provision.

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5. Article 19 para. 2 (a) RSTP aims to protect the young player who follows his family moving abroad for personal reasons, and not the parents who follow their child in the view to integrate a club situated abroad. The test is thus, to assess the true intention and motivation of the player’s parents.

6. Article 19 para. 2 RSTP has to receive a strict construction. In that respect, the party requesting for a registration has the burden of proof, and has to establish that the conditions set in this provision have been met. The player claiming for the benefit of the exception of Article 19 para. 2 (a) RSTP therefore has the burden of proof to establish that football is not the reason, or one of the reasons, for the move of his parents to the country in which the new club is located.

I. PARTIES 1.1 A. (hereinafter also referred to as the “Appellant” or “Player”) is a minor football player. He was born in 1999 in California and is a US citizen. He resides in Madrid, Spain. 1.2 Club Atlético de Madrid SAD (hereinafter also referred to as the “First Respondent” or “Club” or

“Atlético de Madrid”) is a football club with its registered office in Madrid, Spain. It is affiliated to the Real Federación Española de Fútbol – RFEF (hereinafter also referred to as the “Second Respondent” or “RFEF”), which in turn has been affiliated with the Fédération Internationale de Football Association since 1904. 1.3 Fédération Internationale de Football Association – FIFA (hereinafter also referred to as the “Third Respondent” or “FIFA”) is the governing body of international football. It exercises regulatory, supervisory and disciplinary functions over continental confederations, national associations, clubs, officials and players, worldwide. FIFA is an association established in accordance with Article 60 ff. of the Swiss Civil Code (hereinafter also referred to as the “CC”) and has its seat in Zurich, Switzerland.

II. FACTUAL BACKGROUND 2.1 The elements set out below are a summary of the main relevant facts, as established by the Panel on the basis of the submissions of the parties, the exhibits produced and the declarations of the witnesses. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows.

While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning.

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A. v. Club Atlético de Madrid SAD & RFEF & FIFA, award of 10 October 2013 2.2 The Player A. is the youngest son of B. and C., both US citizens. B. and C. are also the parents of a daughter called D., older sister of A., and of a son called E., older brother of A. 2.3 C., father of the Player is a successful businessman. He created a company in the United States

in 1997. He sold the company a few years later, for an important amount of money. He is furthermore the chairman of the Board of Directors of the company he founded and sold. 2.4 According to a letter dated 12 November 2012, sent to FIFA on behalf of the US Soccer Federation, the Player A. had no prior registration history. 2.5 According to exhibits filed by FIFA, the Player competed with a football team called “the Mustang Boys U10 Red Bulls”, at the end of the year 2009, in California. The Player also played football for a club called “Chicago Magic”. It also appears that the Player played several games for the club “Chicago Fire Soccer Club” in June and July 2012. 2.6 Heard as a witness during the hearing, the father of the Player explained that his son was talented for sports. He also declared that when the family lived in California, the Player practised football at summer camps and played a few games. He continued to do so when the family lived in Chicago. 2.7 The father of the Player also explained that when residing in the United States, the game of football was not the main sporting activity of his son. It is only when the family arrived in Spain that the Player realised how football was important in his new country. The Player then asked his parents to play football on regular basis, and expressed the will to play for one of the renowned football clubs of Madrid. 2.8 The club, Atlético de Madrid, has established a strategic alliance with the Chicago Fire Soccer Club. A Brazilian and Mexican clubs are also part of this alliance. Atlético Madrid has other partnerships with clubs in Asia, in the Middle East and in Africa. According to the explanations of a representative of Atlético de Madrid heard through video conference during the hearing, these partnerships do not allow the transfer of players under 16 years old and no one from the club Atlético de Madrid works or searches young talents in the Chicago Fire Soccer Club. The

same representative of the club explained that the first time he heard about the Player was in September 2012, when this Player showed up at the facilities of the club, to take a physical test. 2.9 The Appellant’s family is multicultural. The mother of the Player is of Colombian origin, and the family lived in Colombia as well. The older sister of the Player, D., has been living in Europe, studying at King’s College London. She was studying in Prague when the hearing of this case took place. 2.10 According to the declarations of the father of the Player, the family decided to increase its international experiences and to live outside the United States of America. Considering their good command of the Spanish language, the family decided to settle in Spain. 2.11 In October and November 2011, the father of the Player took several contacts, via e-mails, with CAS 2013/A/3140 4

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Spanish lawyers, in order to apply for resident and/or working permit for him and his family, in Spain. 2.12 Between the end of 2011 and the beginning of 2012, the father of the Player took several steps in order to get residing permits for him and for his family in Spain. 2.13 In April and May 2012, the father of the Player contacted schools in Madrid, explaining that the family was relocating to Madrid from Chicago during the summer of 2012 and that he was therefore investigating schools for their sons. 2.14 The Spanish authorities delivered residence permits to the Appellant’s family on 16 May 2012. 2.15 The father of the Player explained that the family house in Chicago was sold, and that the family had moved to Spain on 27 July 2012. The family first settled in a place situated in the centre of Madrid. As of September 2012 the family decided to move to the outskirts of Madrid, next to

Las Rozas. This place was more convenient for the family, and closer to the private school where the Player was enrolled. 2.16 The new place is very close to some training facilities of the club Atlético de Madrid. 2.17 When arriving in Madrid, the Player understood that the game of football was an important activity in Spain, both as a sport and as a social activity. The Player then wanted to play with the school football team. According to the declarations of his father, the Player quickly realized that playing with his school team was not enough in order to seriously practice the game of football. 2.18 The Player then insisted to practice more seriously, and to this effect, to integrate one of the famous clubs of the area of Madrid. 2.19 As the facilities of Atlético de Madrid were very close to their new home, the parents of the Player became aware of this club, this also on the basis of information distributed in the school attended by the Player. The Player was directed to take a physical test with the football academy of the club. These tests were organised by the club, between 3 and 28 September 2012, for children born between 1999 and 2006, and open to anyone interested. As regards the Player, the results of the test, which took place during the week of 17 September, were good. In consequence, the club requested the registration of the Player. During the proceedings before the Court of Arbitration for Sport (the “CAS”), Club Atlético Madrid explained that it had no special sporting interest in the Player, but that the Player would be integrated in one of the many junior teams, if the registration was accepted. 2.20 In October 2012, the Player presented himself on the website of his school as coming from Chicago to Spain because “I got accepted in to the football club called Atlético de Madrid”. During the hearing, the father of the Player explained that he learned about this declaration of his son when receiving the answer of FIFA filed during the proceedings in the CAS. The father of the Player

explained that he was very surprised of this commentary, repeated that the reason for the family to move in Spain was not the football activity of the Player, and explained that he assumes that CAS 2013/A/3140 5

A. v. Club Atlético de Madrid SAD & RFEF & FIFA, award of 10 October 2013 his son wanted to impress his schoolmates by declaring that he came from Chicago to play for Atlético de Madrid. 2.21 An application for the first registration of the Player, as an amateur player, was filed with FIFA, as the relevant statutes provide for under-age foreign players, on 11 October 2012. The reason indicated was “Move of player’s parents for reasons not linked to football”. According to the FIFA Transfer Matching System (“TMS”), the application was entered by the RFEF, on behalf of Atlético Madrid. Subsequent to this application, other supporting documents were filed as well. 2.22 On 30 November 2012, the FIFA Players Status Sub-Committee issued a decision which rejected the application (the “Appealed Decision”). 2.23 The grounds of the Appealed Decision, drafted in Spanish, were issued on 22 March 2013,

stating, amongst others, that : “(…) En vista de todo lo antes mencionado, en particular, la situación en relación a los motivos declarados por parte del padre y su actividad profesional del padre del jugador así como también tomando en cuenta el corto tiempo entre el proceso de inscripción del jugador por parte del club español, la residencia oficial de los padres del jugador en España y la prueba oficial de aptitud del jugador, además considerando la categoría del club, el Juez Único determinó que persisten las dudas que los motivos de la mudanza de los padres del jugador no sean relacionados al futbol. (….) Por tanto, el Juez Único determinó – aplicando estrictamente el Reglamento – que en el presente asunto, los

requisitos establecidos en el art. 19 par. 2 a) del Reglamento no se cumplen. (…)”. In English, a free translation could be: “(…) In light of the above and, in particular, the reasons explained by the player’s father and his professional activity, as well as considering the short time frame between the registration process of the player by the Spanish club, the player’s family residence in Spain and the player’s aptitude test, especially considering the club’s category, the Single Judge ruled that doubts still persist that the move of player’s parents did not occur for reasons linked to football. (….) Therefore, the Single Judge rules – applying strictly the Regulations – that in the present matter, the requisites prescribed in Art. 19, par. 2 a) of the Regulations are not met. (…)”.

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III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 3.1. On 4 April 2013, the Player filed a statement of appeal with the CAS, pursuant to Article R48 of the Code of Sports-Related Arbitration (Edition 2013) (the “Code”), directed against FIFA, the RFEF and Atlético de Madrid, with respect to the Appealed Decision. Within his statement of appeal the Appellant nominated Mr. Rui Botica Santos, attorney-at-law in Lisbon, Portugal, as arbitrator. 3.2 On 18 April 2013, the RFEF informed the CAS that it waived its right to intervene in the present arbitration proceedings.

On 22 April 2013, the Appellant informed the CAS Court Office that he wanted to maintain the RFEF and Atlético de Madrid as a party. In his statement of appeal, the Player requested that Spanish should be selected as the language of the arbitration. Considering the objection of the Second and Third Respondents to this

request, and pursuant to Article R29 of the Code, the CAS Court Office informed the parties on 22 April 2013 that the procedure should be conducted in English. 3.3 On 23 April 2013, the Player filed his appeal brief, pursuant to Article R51 of the Code. The appeal brief was drafted in Spanish. On 26 April 2013, the Appellant filed an English translation of his appeal brief. The parties, however, agreed to leave the Appealed Decision in Spanish, i.e. without any translation. 3.4. On 3 May 2013 and following consultations with the Respondents, they jointly nominated Mr. Michele Bernasconi, attorney-at-lay in Zurich, Switzerland, as arbitrator. 3.5. On 3 May 2013 the Third Respondent requested the time limit to file the answer to be fixed after the payment by the Appellant of his share of the advance of costs, pursuant to Article R55, para. 3 of the Code. 3.6. On 21 May 2013, the CAS Court Office informed the parties of the formation of the Panel composed of Mr Petros C. Mavroidis as President and Mr Rui Botica Santos and Mr Michele Bernasconi as Arbitrators. 3.7. On 17 May 2013 the First Respondent filed its answer. 3.8. On 20 May 2013 the Second Respondent filed its answer. 3.9. On 24 May 2013 the Third Respondent wrote to the CAS Court Office and raised some remarks with respect to the fact of the First Respondent being called as a respondent by the Appellant. In this respect, the Third Respondent requested that this issue should be solved by the Panel prior to proceed with the case, as well as the suspension of its time limit to file the answer pending a decision on this issue.

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award of 10 October 2013 3.10. In view of the Third Respondent’s letter of 24 May 2013, the Appellant filed his comments on 29 May 2013, refuting FIFA’s rationale and reaffirming his arguments previously raised within his submissions. 3.11. On 30 May 2013, the First Respondent replied and informed, in general lines, that it did not challenge the Appealed Decision because it has not a special sportive interest in the Player and also due to the high costs of an appeal before the CAS. However, in the event the CAS rules that the Player could be registered, the Club would proceed with the registration of the Player. 3.12. On 30 May 2013, the Second Respondent also submitted its comments and averred, in general, that in the event the Club had no interest in registering the Player, the present proceedings would lack any object and should, therefore, be closed. The RFEF further alleged that in the event the appeal is upheld, both the Player and the Club would directly benefit from this outcome, which would be contrary to the Club’s position as a respondent in these proceedings. 3.13. On 6 June 2013, the Panel informed the parties that it had decided not to take any decision at this stage concerning the admissibility of the appeal or the right to sue or to be sued of any of the parties. In that occasion, the Third Respondent’s time limit for filing the answer was resumed. 3.14. On 12 June 2013, considering that the Third Respondent still had to file its answer, the CAS Court Office provisionally consulted the parties with respect to their availabilities for a possible hearing in the present matter, in the event it was finally held. In this respect, none of the parties considered a hearing necessary at that stage. 3.15. On 20 June 2013, the CAS Court Office informed the parties of the appointment of Mr. Luc Pittet as ad hoc clerk.

3.16. On 24 June 2013 the Third Respondent filed its answer. 3.17. On 28 June 2013, the CAS Court Office invited the parties, on behalf of the Panel, to express again their preference for a hearing to be held or for the case to be decided on the basis of the written submissions. In said correspondence, the parties were also informed that the Panel would be available on 10 July 2013 – date which had been previously agreed by the parties in the event a hearing was held. 3.18. Following consultations with the parties, only the Appellant deemed necessary that a hearing was held and, on 4 July 2013, the Panel decided to hold a hearing on 10 July 2013. 3.19. The parties received the Order of Procedure on 5 July 2013 and they duly signed and returned a copy thereof within the set time limit, without any observations or remarks. 3.20 A hearing was held on 10 July 2013, at the CAS Headquarters in Lausanne. The Appellant was represented by his father C., assisted by Mr Sergio Antonio Sanchez Fernandez, attorney-at-law in Cáceres, Spain. The First Respondent was not represented, as previously announced. The CAS 2013/A/3140 8

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Second Respondent was represented by Ms Marta Ruiz-Ayúcar Torres, Head of the Department Legal Affairs of the RFEF and by Mr Kepa Larumbe Beain, Legal Director of the RFEF. The Third Respondent was represented by Mr Patrick Wilson, legal counsel to FIFA. 3.21 During the hearing, the Panel heard C., father of the Player. The Panel also heard, by video conference, Mr Antonio Rivera, administrative officer of Atlético de Madrid. 3.22 The parties had ample opportunity to present their case, submit their arguments and answer to the questions of the Panel. After the parties’ final submissions, the Panel closed the hearing and

reserved its final award. The Panel heard carefully and took into account in its discussion and subsequent deliberation all the evidence and the arguments presented by the parties even if they have not been summarized in the present award. Upon closure, the parties expressly stated that they did not have any objection to the conduction of these proceedings, in respect of their right to be heard and to be treated equally in these arbitration proceedings.

IV. SUBMISSIONS OF THE PARTIES

A. The Appellant’s submissions 4.1. The Appellant submitted the following requests for relief within his statement of appeal: “i) That the Player A. be authorized to be registered on the Spanish Football Federation (RFEF), in favour of Club Atlético de Madrid SAD. ii) That all the costs derived of this procedure be paid by FIFA, added to a compensation towards our legal cost caused for this procedure”. 4.2. The Appellant further submitted the following requests for relief within his appeal brief: “To take cognizance of the lodging of this written statement setting out the grounds for the appeal, to file it and, after the completion of all the legal formalities, to agree according to what was requested in the appeal notice, revoking the appealed resolution and, instead, authorizing the registration of the minor A., in the Real Federación Española de Fútbol [Royal Spanish Football Federation], with the Club Atlético de Madrid, imposing the payment of the arbitration costs to the FIFA, as well as the payment of the arbitration costs to the FIFA, as well as the payment of a compensation not lower than 10.000.- CHF, as contribution towards the legal expenses of this party”. 4.3. The Appellant’s submissions, in essence, may be summarized as follows: - All the conditions provided for the application of Article 19 para. 2 a) of the Regulations on the Status and Transfer of Players (hereinafter also referred to as the “RSTP”) had been met: the change of residence of the Appellant’s family had nothing to do with football, and

was not motivated by any sports-related cause. The challenged Decision was based on assumptions which did not correspond to the facts resulting from the evidence provided. - In case the Player was deprived of practicing a sporting activity, with no reason other than the fact that he is a US-American citizen, Article 3.1 of the Spanish Ley Orgánica 4/2000, CAS 2013/A/3140 9

A. v. Club Atlético de Madrid SAD & RFEF & FIFA, award of 10 October 2013 governing the individual rights and liberties of the foreign nationals living in Spain would have been violated. Due to this violation, the FIFA Regulations would have to be considered as null and void, according to Swiss law, namely, Article 3 of the Swiss Federal Constitution, and the Treaty concluded between the Swiss Confederation and the United States of America on 25 November 1850. 4.4. In the appeal brief, the Appellant confirmed its prayers for relief and requested to have C., father of the Player, and Mr Antonio Rivera, administrative officer of the Club Atlético de Madrid SAD, responsible for the lower level categories, heard as witness, during a hearing.

B. Atlético de Madrid’s submissions 4.5. On 17 May 2013, Atlético de Madrid filed an Answer, requesting CAS: “to consider this document as lodged as a defense to the appeal, with the attached documents, and following the appropriate procedures it dictates the resolution that corresponds to law.

Since we do not expressly oppose to the appeal, CLUB ATLETICO MADRID SAD should be relieved of any liability for costs and expenses incurred, which must be assumed by the party whose claims have been rejected”. 4.6. Atlético de Madrid submitted, in essence, that in the present case, it is undisputed that the Player’s parents moved to Spain for reasons other than football-related causes. The Club also emphasized that it had no special sporting interest in the Player, so that it would abide any

decision taken by the CAS, although, in its opinion, the Player should be registered according to Article 19 para. 2 a) RSTP.

C. The RFEF’s submissions 4.7. On 20 May 2013, RFEF filed its Answer, requesting CAS : “1. Prior to studying and issuing a ruling on the roots of the matter, CAS rules on the issue of the RFEF’s lack of standing to be sued.

2. Subsidiarily, in the event that the Panel deems that the RFEF has standing to be sued to the present proceedings, CAS rejects the Appellant’s request and confirms the Single Judge of the FIFA’s Players Status Sub-Committee on 30 November 2011 [recte 2012], on the basis of the arguments put forward in section B of the present brief.

3. In both cases, CAS awards the costs of the Appeal as determined by the CAS Secretariat, against the Appellant”. 4.8. The RFEF’s submissions, in essence, may be summarized as follows: - In this case, RFEF only initiated the approval of a first registration before FIFA, through the TMS system, according to the FIFA Regulations. RFEF should not be a party in these proceedings: only FIFA should have standing to be sued (locus standi) in this Appeal, as RFEF has no competence regarding the registration of the Player; the role of RFEF was CAS 2013/A/3140 10

A. v. Club Atlético de Madrid SAD & RFEF & FIFA, award of 10 October 2013 merely procedural, that is, to transmit the documents to FIFA as it had to do in order to be in compliance with the relevant FIFA Regulations. - Subsidiarily, RFEF submitted that the challenged Decision was correct, in that the FIFA instance did not err in law when considering that the parents of the Player had moved to Spain for reasons linked to football and that the exception of Art. 19 para. 2 a) could not

be apply in this case.

D. FIFA’s submissions 4.9. On 24 June 2013, FIFA filed an Answer, requesting CAS: “1. Primarily, to declare the present Appeal withdrawn.

2. Subsidiarily, to examine whether the Appellant has a legitimate interest to bring his Appeal before CAS. In the negative, the Appeal should be considered inadmissible and the present procedure should be withdrawn.

3. In any case, to exclude Atlético de Madrid SAD as a party from the present procedure, or, alternatively, to disregard the club’s Answer to the Appeal.

4. Alternatively, to reject as to its substance, the present Appeal against the Decision passed by the Single Judge of the Player’s Status Sub-Committee on 30 November 2012 and to confirm the relevant Decision in its entirety.

5. In any event, to order the Appellant to cover all the costs incurred with the present procedure as well as to bear all legal expenses of the Respondent 3 related thereto”. 4.10. The FIFA’s submissions, in essence, may be summarized as follows: - As primary request, FIFA submitted that the Appeal Brief had been filed late, and that the Appeal should be declared inadmissible, by virtue of Article R51 para. 1 of the Code. In that respect, FIFA submitted that the Appealed Decision would have been notified via the TMS on 22 March 2013, and that the time-limit to submit the Appeal Brief had expired on 22 April 2013. The Appeal Brief was submitted to CAS on 23 April 2013 only, and was thus filed one day late. - FIFA subsidiarily submitted that the Player had no legitimate interest in the present appeal.

In that respect, FIFA underlined that the Atlético de Madrid did not appeal against the Decision: the application for registration of a player needs to be submitted by a club to its association, according to Article 6 para. 3 of the Regulations; the relevant Decision had been accepted by the Club, and, consequently, the Player lacked legitimate interest in the

present Appeal. - FIFA also submitted that the Club had no standing to be sued, and that the fact that the Club was called as Respondent constituted a prejudice for FIFA’s rights to a proper defence, due to the fact that a party with antagonistic interests to FIFA was given the possibility to provide its position against the Appealed Decision (without having challenged the Appealed Decision). - As to the substance, FIFA recalled the background and purpose of Article 19 RSTP: it mentioned that the Sub-Committee appointed since October 2009 had created a very strict CAS 2013/A/3140 11

A. v. Club Atlético de Madrid SAD & RFEF & FIFA, award of 10 October 2013 jurisprudence, allowing exceptions to Article 19 RSTP only in cases where the conditions of the provision had been “doubtlessly fulfilled”. FIFA also recalled that the experiences during the past years had shown that agents and (some) clubs had elaborated very creative solutions in order to circumvent the FIFA provisions, so that it was only by enforcing the rules in consistent and strict manner that abuses could be avoided. - FIFA then recalled the jurisprudence of CAS which, on various occasions, underlined the importance (and the proportional character) of Article 19 RSTP. With regard to the appreciation as to whether the Player’s parents move was linked to football or not, FIFA mentioned the CAS jurisprudence which held that the timeline surrounding the Player’s parents’ move, in combination with the other circumstances of the relevant move, was a factual element which had to be taken into consideration when analysing a case. - FIFA then analysed in details the circumstances of this case. As regards the argumentation of the Appellant, FIFA submitted that the relevant timeline allowed by no means to conclude that the move was not linked to football-related reasons. In FIFA’s view, the timeline of the events did not establish, beyond doubt,