Confederação Brasileira de Futebol (CBF) v. Confederación Sudamericana de Fútbol (CONMEBOL), Fédération Internationale de Football Association (FIFA)

II. FACTUAL BACKGROUND — A. Background Facts

4. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence are addressed, 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.

5. On 17 June 2015, the men’s national football team of Brazil played a match against Colombia for the group stage of the 2015 Copa America in Santiago, Chile. After the final whistle, the Brazilian player Neymar da Silva Santos Júnior (hereinafter referred to as the “Player”) was given a red card following an incident with a player of the opposing team.

6. On 19 June 2015, the Disciplinary Committee of CONMEBOL sanctioned the Player with a four-match suspension. The grounds of the decision were notified to the Appellant by email on 22 June 2015 giving the interested parties a deadline of 24 hours to appeal.

7. The Player did not appeal against such decision and on 21 June 2015, he began to serve the suspension during the next match of the Brazilian national team in the tournament against Venezuela.

8. On 22 June 2015, Mr Francisco Figueredo, Director of the Disciplinary Committee of CONMEBOL, sent a letter by email to Mr Marc Cavaliero, Secretary to the FIFA Disciplinary Committee, requesting the opinion of FIFA as to whether match suspensions not served during the 2015 Copa America were to be served during the next Copa America competition (as per Article 112 para 2 lit. d) of the CONMEBOL Disciplinary Regulations), alternatively during the relevant representative team’s next official match in a FIFA competition (as per Article 38 para 2 lit. e) of the FIFA Disciplinary Code).

9. On 23 June 2015, Mr Cavaliero sent the following reply to Mr Figueredo:

“… In this regard, after analyzing the respective regulations, particularly art. 112.2.d) of CONMEBOL’s Disciplinary Regulation and art. 38 paragraph 2 e) of FIFA’s Disciplinary Regulation, the President of the FIFA Disciplinary Panel considers that the rule established in FIFA’s Disciplinary Regulation shall prevail over the rule of the Confederation.

That is, art. 38 par. 2 e) of FIFA’s Disciplinary Code should be applied in the present case and as a consequence the pending suspensions that were no complied in the 2015 Chile Cup of America shall be complied

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in the next official competition organized by FIFA, and in this case the classification games for the 2018 FIFA Russia World Cup.

Lastly, we would like to point out that the above is merely informative, based in the documents in our disposal and, therefore, without harm to any decision that might be finally taken…” (Translation from the original Spanish document was provided by the parties).

10. On the same 23 June 2015 at 14:42, CONMEBOL sent an email to its member associations informing them of the FIFA reply in the following terms:

“… Through the present letter we inform you that CONMEBOL received on the present date a communication from FIFA regarding the execution of suspension sanctions of the matches after the end of the Copa America Chile 2015.

Such communication indicates that the suspensions not served during Copa America Chile 2015 must be served in the next official match played by the representative team in a competition organised by FIFA, in this case, in the qualifying matches of the World Cup FIFA Russia 2018.

Attached is a copy of said communication for your appreciation…” (Translation from the original Spanish document was provided by the parties).

11. On 27 June 2015, the Player served the second match suspension during the quarter-final of the 2015 Copa America in the match between the Brazilian national team against Paraguay. Brazil lost to Paraguay 4-3 on penalties after a 1-1 draw and was subsequently eliminated from the competition.

12. On 6 July 2015, the Appellant sent a letter to the FIFA Secretary General requesting FIFA:

“to reconsider its decision of 23 July 2015 and, therefore, allow players who were fielded and suspended during the CA 2015 – such as Neymar – to serve any pending suspensions only in the next edition of the Copa America 2016 USA and by no means in the next competition organized by FIFA, such as the qualifying matches of the WC 2018”.

13. On 11 July 2015, Mr Cavaliero replied to the Appellant’s letter of 6 July 2015 stating the following:

“We acknowledge receipt of your request dated 6 of July 2015 and have duly taken note of its contents.

Your request was submitted to the Chairman of the FIFA Disciplinary Committee, who reviewed your posi tion as well as all the pertinent regulations, in particular Art. 2 of the FIFA Statutes, Art. 2 and Art. 38 par. 2 lit e) of the FIFA Disciplinary Code, Art. 6 No. 2 and 3 and Art. 26 of the Copa America Chile 2015 Regulations and Art. 112 par. 2 lit d) of the CONMEBOL Disciplinary Regulations.

The Chairman additionally took into consideration that two teams from CONCACAF participated in the mentioned competition.

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The Chairman pointed out that FIFA has the objective to control every type of Association Football by taking appropriate steps to prevent infringements of the Statutes, regulations or decisions of FIFA or of the Laws of the Game and to promote integrity, ethics and fair play with a view to preventing all methods or practices, which might jeopardize the integrity of matches, competitions, Players, Officials and Members or give rise to abuse of Association Football.

In the frame of these objectives, FIFA has the responsibility to ensure that the sanctions imposed by the disciplinary bodies of all Confederations are respected equally and in the most effective way worldwide. This means that the sanction has to deploy its effect as soon as possible.

The Chairman is of the opinion that Art. 38 par. 2 lit e) of FIFA Disciplinary Code regulates specifically the way that the pending suspensions from all the Confederations have to be served and therefore a regulation in contradiction to this, from a particular Confederation, would affect the complete system in place.

Consequently, the Chairman confirms his position in the sense that the pending suspensions of the Copa America Chile 2015 have to be served in the next qualifier matches for the 2018 FIFA World Cup Russia.

Finally, we would like to add by way of explanation that the foregoing is of a purely in formative nature only and hence without prejudice whatsoever”.

14. On 14 July 2015, the Appellant informed FIFA that it intended to appeal against the aforementioned reply of the secretary to the FIFA Disciplinary Committee and, on 21 July 2015, submitted its reasons for appeal.

15. On 7 August 2015, the FIFA Appeal Committee rejected the appeal passing the following decision:

“1. The request to designate the CONMEBOL as Respondent in the appeal lodged by the Confederação Brasileira de Futebol against the letter sent by the secretariat of the FIFA Disciplinary Committee dated 11 July 2015 is rejected.

2. The appeal lodged by the Confederação Brasileira de Futebol against the letter sent by the secretariat of the FIFA Disciplinary Committee dated 11 July 2015 is declared inadmissible.

3. The costs and expenses of these proceedings in the amount of CHF 5,000 are to be borne by the Confederação Brasileira de Futebol. […]”.

16. On 9 September 2015, the FIFA Appeal Committee communicated the grounds of its decision to CBF and CONMEBOL.

17. First, the FIFA Appeal Committee held that CBF’s request to designate CONMEBOL as a Respondent could not be granted, on the grounds that, as a general rule, disciplinary proceedings are directed against a party only, i.e. against the potential perpetrator of an infringement to the FIFA regulations and that, additionally, CONMEBOL was not obliged by any disputed right in the matter at stake.

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18. Second, the FIFA Appeal Committee held as inadmissible the CBF’s appeal lodged against the 11 July 2015 letter, reasoning as follows:

“16. […] the first requisite that needs to be met to lodge an appeal before the Appeal Committee is the existence of a decision rendered by the Disciplinary Committee.

17. The Committee recalls that in accordance with the well-established CAS jurisprudence, “an appealable decision of a sport association or federation is normally a communication of the association directed to a party and based on an ‘animus decidendi’, i.e. an intention of a body of the association to decide on a matter […]. A simple information, which does not contain any ‘ruling’, cannot be considered a decision”.

In accordance with the above, a communication can only be considered as a decision if (i) there is an intention of a body of the association to decide on a matter and (ii) if said communication affects the legal situation of the addressee.

i) No intention to decide on a matter

[…]

19. […] the Committee observes that the only appealable decision in the present context was the decision of the CONMEBOL suspending the player for 4 matches, which grounds were notified on 22 June 2015. The same were followed by a note in relation to the existing legal action, i.e. an appeal could be lodged within 24 hours. […]

23. […] the Committee remarks that the Chairman of the FIFA Disciplinary Committee had no intention to rule, and more importantly, was not in a position to rule, on the matter, which had been decided by CONMEBOL judicial bodies in a final and binding way. On the contrary, the Committee notes that the sole intention of the Chairman of the Disciplinary Committee was to provide the CBF with a reply to its request only, which contents had already been put at disposal of all participating member associations on 23 June 2015.

Thus, the letter dated 11 July 2015 sent by the secretariat to the FIFA Disciplinary Committee had no intention to rule on a matter.

24. What is more, the Committee observes that the FIFA Disciplinary Committee has not opened any disciplinary proceedings against any player or entity. Consequently, no sanction was pronounced by the FIFA judicial body, which could now be subject of an appeal.

[…]

26. Thus, in direct application of art. 118 of the FDC, and in the absence of any decisi on sanctioning the CBF or the player by the FIFA Disciplinary Committee, the present appeal shall be declared inadmissible.

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ii) The letter of the secretariat to the Disciplinary Committee dated 11 July 2015 did not affect the legal situation of the CBF

[…]

31. […] the Committee unanimously agrees that the letter of the secretariat to the Disciplinary Committee was a purely informative letter without any effect on the legal situation of the CBF, which had already been affected by the decision of CONMEBOL Disciplinary Committee in a final and binding way.

32. As a consequence, the Committee declares the present appeal inadmissible”.

19. Notwithstanding the communication set out above, the FIFA Appeal Committee considered exceptionally the substantive part of the appeal submitted by the CBF. According to the FIFA Appeal Committee:

“43. […] the CONMEBOL regulations need to comply with the higher ranked regulations, which are the FIFA regulations. In case of a conflict, the FIFA regulations should prevail.

[…] the CBF is a member of FIFA and should be well aware of FIFA’s regulations and its implications. […] the CBF should have been aware that, in accordance with article 38 par. 2 lit e) of the FIFA Disciplinary Code, any match suspensions not served at the Copa America Chile 2015 would be carried over to the matches of the Brazilian team in the preliminary competition of the 2018 FIFA World Cup Russia.

44. Equally, the Appeal Committee wishes to recall that art. 38 par. 3 lit e) of the FDC is applied uniformly for all confederations. The principle contained herein – the principle of immediacy of the sanction – is of paramount importance. Indeed, it constitutes a sacrosanct principle that disciplinary sanction shall be served as soon as possible at the occasion of the next official match, in order to ensure i) uniformity in the implementation of the sanctions on a worldwide level and ii) the carrying over of the necessary deterrent effect by a disciplinary sanction.

[…]

49. In conclusion, the Appeal Committee agrees with the opinion of the Chairman of the Disciplinary Committee, according to which, in application of article 38 par. 2 lit e) of the FIFA Disciplinary Code, the pending match suspensions from the Copa America Chile 2015 have to be carried to the next official matches of the representative teams in a competition organized by FIFA, which is the preliminary competition of the 2018 FIFA World Cup Russia”.

III. PROCEEDINGS BEFORE THE COURT OF A RBITRATION FOR SPORT

20. On 14 September 2015, the Appellant decided to appeal the abovementioned decision of the FIFA Appeal Committee (hereinafter referred to as “the Appealed Decision”) before the CAS and filed its statement of appeal in accordance with Articles R47 and R48 of the Code of Sports-related Arbitration (hereinafter referred to as “the Code”).

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21. The Appellant directed its statement of appeal against FIFA and the CONMEBOL. With its statement of appeal, the Appellant also filed a request for a stay of the execution of the Appealed Decision, nominated Mr Philippe Sands Q.C., barrister in London, United Kingdom, as arbitrator and requested for expedited proceedings in accordance with Article R52(3) of the Code, suggesting at the same time an expedited procedural calendar.

22. On 16 September 2015, the Appellant filed its appeal brief submitting the following requests for relief:

“(a) That the Appeal of CBF is admissible;

(b) That the Appealed Decision and the FIFA DC Decision are set aside;

(c) That the pending suspensions of the Copa America Chile 2015 – imposed on the Brazilian National Team Player Neymar Jr. – shall be served in the next edition of the Copa America USA 2016;

(d) That FIFA and CONMEBOL be held responsible for the harmonization of its statutes and regulations;

(e) Order FIFA and CONMEBOL to bear any and all legal/procedural costs and attorneys’ fees incurred by the Appellant in connection with the present proceedings, as well as during the lower instances – and partial – proceedings, in an amount not lower than CHF 30,000.00 (thirty thousand Swiss Francs);

(f) Order FIFA and CONMEBOL to reimburse the administrative fees paid by the Appellant in the lower instance proceedings – fee of CHF 3,000 – in case the present appeals are successful and the Appealed Decision is set aside or partially upheld”.

23. On 17 September 2015, the First Respondent agreed to the Appellant’s request to proceed in an expedited manner and to the proposed procedural calendar, and nominated Mr Marco Balmelli, attorney-at-law in Basel, Switzerland, as arbitrator. By letter of the same day, the Second Respondent requested to be removed from the proceedings as it was not a party to the proceedings before FIFA but nonetheless agreed to the proceeding being held in an expedited manner.

24. On 18 September 2015, in view of the parties’ agreement to proceed in an expedited manner, the CAS Court Office confirmed the proposed procedural calendar and informed the parties that the Appellant’s application for a stay of the Appealed Decision became without object in view of such agreement. The CAS Court Office further invited the Appellant to provide its position with respect to the Second Respondent’s request to be removed from the proceedings.

25. On the same day, the Appellant objected to the Second Respondent’s request to be removed from the present proceedings claiming that the latter had standing to be sued in the present matter.

26. On 21 September 2015, the Uruguayan Football Association filed a request for intervention in this arbitration in accordance with Article R41.3 of the Code.

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27. On 22 September 2015, the Second Respondent informed the CAS Court Office that it did not object to the request for intervention of the Uruguayan Football Association and that it shall not further participate in the present proceedings.

28. On 23 September 2015, the CAS Court Office informed the parties about the constitution of the Panel as follows: Mr Sofoklis P. Pilavios, President, Mr Philippe Sands Q.C., and Mr Marco Balmelli, arbitrators. The CAS Court Office also informed the parties that a hearing was scheduled to be held on 1 October 2015 at the CAS Headquarters in Lausanne, Switzerland, and confirmed that the operative part of the award would be rendered by 2 October 2015.

29. On 23 September 2015, the Appellant and the First Respondent opposed the intervention of the Uruguayan Football Association as party to the arbitration proceedings.

30. On 25 September 2015, the Panel, in accordance with Articles R41.3 and R41.4 of the Code, decided to reject the request for intervention from the Uruguayan Football Association.

31. On 25 September 2015, the First Respondent filed its answer requesting the CAS:

“i. To reject all the reliefs sought by the Appellant.

ii. To confirm in its entirety the decision of the FIFA Appeal Committee.

iii. To order the Appellant to bear all costs incurred in connection with these proceedings and to cover all legal expenses of the Respondent in connection with these proceedings”.

32. On 29 September 2015, the Appellant informed the CAS Court Office that its Legal Director, Mr Carlos Eugenio Lopes, would not be able to attend the hearing in person and submitted a witness statement signed by the latter, as already announced in the appeal brief.

33. On 30 September 2015, the CAS Court Office advised the parties that the issue of admissibility of Mr Lopes’ witness statement shall be addressed at the beginning of the hearing.

34. The Second Respondent did not file an answer.

35. On 1 October 2015, a hearing took place at the CAS Headquarters in Lausanne, Switzerland.

36. The Panel sat in the following composition:

President: Mr Sofoklis P. Pilavios, attorney-at-law in Athens, Greece Arbitrators: Mr Philippe Sands Q.C., barrister in London, United Kingdom Mr Marco Balmelli, attorney-at-law in Basel, Switzerland

37. The following persons attended the hearing:

- CBF, as represented by Messrs Marcos Motta and Pedro Fida, Counsel;

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- FIFA, as represented by Mr Marc Cavaliero, Head of the Disciplinary and Regulatory Department and Mr Bernardo Palmeiro, Legal Counsel.

38. At the beginning of the hearing, the parties confirmed that they had no objections to the constitution of the Panel. During the hearing the parties made full oral submissions and at the conclusion of the hearing all the parties acknowledged that their right to be heard had been fully respected. The parties further agreed to the admissibility of the statement filed by Mr Carlos Eugenio Lopes.

IV. SUBMISSIONS OF THE PARTIES

39. The following outline of the parties’ positions is illustrative and does not purport to address in a comprehensive fashion every submission advanced by the parties. The Panel has nonetheless carefully considered all the submissions made by the parties, whether or not there is specific reference to them in the following summary.

40. The Appellant’s submissions, in essence, may be summarized as follows:

- CONMEBOL, being an autonomous association, is the sole organizer of Copa America and, consequently, its Disciplinary Regulation and Copa America 2015 competition regulations should apply independently from the FIFA regulatory framework.

- Pursuant to Article 112 para 2 lit. d) of the CONMEBOL Disciplinary Regulation, which stipulates that “A suspension that was not complied during a Copa America, shall be extended automatically to the next Copa America” (translation provided by the Appellant), the remaining sanction to be served by the Player should be served during the subsequent Copa America competition. Article 112 para 2 lit. d) of the CONMEBOL Disciplinary Regulation is sufficiently clear and should prevail over the FIFA Disciplinary Code on the basis of the legal principle lex specialis derogat legi generali. In addition, FIFA has no right to change the competition rules, particularly while Copa America is ongoing, as this damages legal certainty. Lastly, consultation and clarifications regarding the interpretation of the CONMEBOL’s rules were to be sought by the CONMEBOL Executive Committee and not by FIFA.

- The FIFA Appeal Committee was wrong to reject the CBF’s appeal as inadmissible by arguing that the FIFA letter of 11 July 2015 was not a decision.

- The FIFA letter of 11 July 2015 did in fact constitute an appealable decision since it ruled on a controversial matter and clearly affected the Appellant’s legal situation by ruling on its right to field the Player in the qualifying matches for the FIFA World Cup.

- The Appellant received CONMEBOL’s decision to suspend the Player on 22 June 2015 at 14:59 (Brazilian time) and was given a deadline of 24 hours to appeal. However, the FIFA letter of 23 June 2015 with respect to the scope of application of the sanctions imposed during the Copa America competition was notified by CONMEBOL to its

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member associations on 23 June 2015 at 14:42, leaving to the Appellant only 17 minutes to file an appeal against the CONMEBOL decision.

- The Appellant was immediately affected by the Appealed Decision and, consequently, has standing to sue.

- The Second Respondent has standing to be sued as it has a stake in the dispute, not least because something is sought against it and it is personally obliged by the disputed right at stake.

- The Appealed Decision violates the principle of the autonomy of the football associations- FIFA members, which is established in Article 13 of the FIFA Statutes.

- The Appellant had no other way to challenge the decision of the FIFA Disciplinary Committee.

41. The First Respondent submitted the following in response:

- The Appellant did not prove the Second Respondent’s link with the disputed object and did not present any specific claim against the latter. Moreover, in principle there are no respondents in disciplinary proceedings before the FIFA Appeal Committee. As a result, the Second Respondent has no standing to be sued in the current proceedings.

- The appeal lodged by the Appellant before the FIFA Appeal Committee is inadmissible as it does not fulfil the requirements set out in Article 118 of the FIFA Disciplinary Code (2011 edition) because the letter of the FIFA secretariat dated 11 July 2015 did not contain any ruling and it certainly did not constitute a decision imposing any disciplinary measure.

- In particular, said letter did not sanction any behaviour of the Player and does not fall within the scope of jurisdiction of the Chairman of the FIFA Disciplinary Committee acting alone, as defined under Article 78 of the FIFA Disciplinary Committee, which makes sense considering that the Disciplinary Committee of the Second Respondent has the exclusive competence to sanction any misconduct during the 2015 Copa America. The letter was purely informative and did not have any effect on the legal situation of the Appellant. Tellingly, the letter makes explicit reference to the fact that it corresponds to an opinion, which was given in reply to the CONMEBOL request of 22 June 2015 and communicated to the Appellant on the following day.

- The FIFA letter does not exclude the possibility for the FIFA Disciplinary Committee of dealing with the matter of the Player in the future, as it is the Appellant’s responsibility to field the players it deems eligible in the qualifying matches for the 2018 FIFA World Cup in Russia.

- As to the grounds of appeal, the First Respondent notes that there are limits to the autonomy of the sports associations in the sense that the Second Respondent needs to respect at all times the FIFA Statutes and regulations (Article 20 para 3 lit a) of the FIFA

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Statutes). Moreover, the FIFA regulations, such as the FIFA Disciplinary Code and in particular its Article 38 para 2 lit. e), which provides that remaining match suspensions from confederation competitions for representative teams are served during the relevant representative team’s next official match in a FIFA competition, prevail over the Confederations regulations.

- Member associations, including the Appellant and Confederations, are well aware of this principle, which has been included in the FIFA Disciplinary Code since 2005. In fact, the First Respondent had informed the Appellant of the direct application of Article 38 of the FIFA Disciplinary Code on the occasion of the carried over match suspensions of the Brazilian player L. after the 2011 Copa America and in view of the 2014 FIFA World Cup in Brazil.

- The “collision of norms” situation in the case at hand has to be resolved by way of interpretation. The lex specialis principle is not applicable to this particular case since the legal provisions at issue are not of identical legal nature. The FIFA regulations being of higher rank, the legal principle applicable in the situation at stake is lex superior derogate legi inferiori.