USD Lavagnese 1919 v. Fédération Internationale de Football Association (FIFA)

III. FACTUAL BACKGROUND — A. Background Facts

5. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings and oral submissions made at the remote hearing held on 24 May 2022. 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.

6. In February 2018, the Italian Police commenced an investigation into allegations of crimes related to the illegal trade and use of doping substances for football players at the professional club Spezia Calcio s.r.l (“Spezia Calcio”). Although the investigation into those allegations was subsequently closed without prosecution, it uncovered potential breaches of Italian immigration law involving the transfer of 13 football players under the age of 18 from Nigeria to Italy. Below are extracts from pages 3 to 7 of the La Spezia Police Report submitted to the Public Prosecutor’s Office at the Ordinary Court, La Spezia, in Criminal Proceedings no. 328/18 R.G.N.R, which describe the System:

“The ‘Nigeria System’ adopted by Spezia Calcio to illegally bring athletes into the country as early as 2013, appears to have begun when, for the first time, in 2013, a temporary visa was requested for entry into Italy for some Nigerian athletes, who were minors, and who had distinguished themselves in their country of origin for their football talent, through a selection made by the football school, ‘Football College Abuja’, based in Abuja- Nigeria …

It is revealed that the so-called ‘Nigeria system’ was found, during the investigation, to be managed directly by the city of La Spezia, where the head office of the professional football club ‘Spezia Calcio s.r.l’ is located ….

It was shown that the credentials for young athletes, i.e. the invitations to take part in sporting events, which are essential for non-EU minors in order to obtain an entry visa, originate precisely from La Spezia. The invitation, issued on ‘Spezia Calcio’ letterhead and addressed to the Consulate General of Italy in Lagos, among other things, contained the formal promise to respect the laws on immigration and to guarantee the economic sustenance of the minors during their stay in Italy, as well as the promise to … ‘ensure their return to their country of origin within the terms of the entry visa’ ….

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The city of La Spezia was also the starting point for all the directives concerning the management of young athletes who, once they arrived in this city, were de facto managed and maintained - albeit in a hidden way - by the aforementioned professional club ….

[From] the beginning, the procedures for the temporary entry of underage athletes on the occasion of their participation in showcase tournaments, such as the Viareggio tournament, or for other occasions, through tourist entry visas, were in fact intended to facilitate their permanent stay within the national territory, or at least for some of them, in violation of the provisions governing the matter.

In particular, although some of the foreigners have obtained more tourist visas over the years, the so-called ‘Nigeria System’ was activated for the most promising athletes when they came of age. Once the athletic skills of the young athletes had been tested during their previous stays in Italy, generally after they had reached the age of majority, the issue of the last visa for tourism purposes was, in reality, ab origine aimed not at the temporary stay of the foreigner within the national territory but the definitive stay ….

[Once] the letter of invitation was obtained from Spezia Calcio, the football school ‘Football College Abuja’ submitted to the Italian Consulate in Nigeria the necessary documentation for the issue of a visa for tourism purposes, together with the proxies signed by the parents of the minors in favour of …, [a] legal representative and coach/selector of the aforementioned football school ….

[Non- EU] minors, therefore, arrived in Italy with their legal guardian/escort, …, with a tourist visa valid for 90 days.

Before the expiration of the entry ticket, the minors subject to the ‘Nigeria System’ despite having already been formally entrusted to the coach/legal guardian … were in fact passed into the hands of other individuals, in any case indirectly linked to SPEZIA CALCIO, who, provided with further ad hoc proxies signed by the parents of the minors took action at the office of the Giudice Tutelare [Judge supervising guardianship] of the Court of Genoa to obtain the order appointing the guardian of the aforementioned minors ….

The documentation acquired at the Court of Genoa, which had appointed the guardians of the minors, who were de facto leading figures of Spezia Calcio, showed that all young Nigerian athletes had been specifically registered at a school in Chiavari (GE), as required by both the Italian Civil Code, as regards the procedures for the protection of minors, and the rules of the Italian Football Federation, which in turn are modulated on those of the World Federation.

Subsequent investigations revealed that the registration was only fictitious and that none of the minors had ever attended the aforementioned school. It is clear that the registration at the school, provided for by the abovementioned regulations, without actually attending classes, is only an artifice to make the procedure and the reasons for guardianship appear legal, with the sole purpose of obtaining the subsequent issue of the residence permit. In fact, although school attendance is not indispensable in order to obtain a residency permit, it is an indispensable element as far as the guardianship of the minor is concerned, and this guardianship is in turn instrumental and essential for the issue of the residency permit ….

Once they had obtained the residence permit, the young Nigerians, entirely managed by the Spezia Calcio club … were ‘initiated’ into the sporting path that would have gradually led them to professionalism ….

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In order to avoid that too many young foreigners appeared in the ‘youth league’ of Spezia and avoid attracting the attention of the Football League, some of them were ‘parked’ in complacent amateur teams, as occurred in 2017 when three young talents … were registered in the amateur team of Valdivara 5Terre ….

The investigations have clearly shown that the whole ‘Nigeria system’ was designed and implemented to … attract young talents with the ultimate aim of creating a significant gain from their transfer to other professional clubs, as actually occurred for some of them in previous years”.

7. The Police Report identified 13 players who had been brought into Italy from Nigeria, four of whom were registered with Lavagnese. A summary of the relevant details of the four Lavagnese-registered players who are known as Players 1, 2, 4 and 5, is as follows:

Player Name ITC Date of Entry Date of FIGC Transfer to No into Italy Registration Spezia

(16 years old) (17 years old) 29/08/2014

(16 years old) (17 years old) 29/08/2014

(16 years old) (18 years old) 19/01/2016

(17 years old) (18 years old) 28/07/2016

8. Following receipt of information about the alleged Nigeria System, on 14 August 2018, FIFA’s TMS Global Transfer and Compliance Team wrote to Lavagnese, requesting further details of the registration of Player 1.

9. On 24 August 2018, Lavagnese replied indicating that Player 1 was in Italy for study reasons under the supervision of a tutor, that Player 1 had never been registered with another club and that Player 1 had been registered by the FIGC as an amateur.

10. On 7 March 2019, the FIFA TMS Global Transfer and Compliance Team wrote again to Lavagnese requesting further information about Player 1 and also information about Player 2.

(operative part of 20 June 2022)

11. On 12 March 2019, Lavagnese replied, indicating that both players were registered with the FIGC, both had registered for the first time in Italy and the players had been registered following FIGC’s procedure.

12. On 25 November 2020, FIFA’s Regulatory Enforcement Department wrote to Lavagnese putting the club on notice that FIFA was investigating potential breaches of Articles 9, 19 and Annexes 2 and 3 of the FIFA RSTP, and seeking information regarding the registration of five Nigerian players.

13. On 8 December 2020, Lavagnese responded reiterating that: it was not involved in the Nigeria System; it had never been investigated by the La Spezia Public Prosecutor’s Office; its company and representatives were not mentioned in investigation and court documents; Lavagnese had fulfilled its obligations properly; and the Nigeria System was completely unknown to the club.

14. On 26 April 2021, FIFA informed Lavagnese that the matter in relation to Players 1, 2, 4 and 5 had been transferred for consideration by the FIFA Disciplinary Committee. A copy of the FIFA Case Transfer Report was provided to Lavagnese.

15. On 3 and 10 May 2021, Lavagnese responded to the allegations in writing to FIFA.

16. On 30 June 2021, the FIFA Disciplinary Committee considered whether Lavagnese had failed to comply with Article 9 (1), Article 19 (1), (3) and (4), Article 1 (1) of Annexe 2, and Article 1 (3) of Annexe 3 of the FIFA RSTP. Following a consideration of the evidence, the FIFA Disciplinary Committee concluded that the allegations were proved and banned Lavagnese from registering new players, both nationally and at an international level, for four entire and consecutive registration periods. It also ordered Lavagnese to pay a fine of CHF 4,000.

B. Proceedings before the FIFA Appeal Committee

17. On 23 August 2021, Lavagnese notified FIFA of its intention to appeal the Disciplinary Committee decision and filed an appeal on 10 September 2021.

18. Before the Appeal Committee, Lavagnese argued that:

- The applicable law was the FIFA RSTP, with Swiss law applying subsidiarily, although it contended that due consideration should also be given to Italian law and the FIGC rules. Lavagnese submitted that the FIFA Regulatory Compliance Department relied on evidence collected by La Spezia Police as part of a criminal investigation that had not yet been assessed by a competent criminal court. It rejected the admissibility of the Police Report.

- The Police Report did not state that it was a part of the Nigeria System. It contended that the Disciplinary Committee had erroneously assessed Lavagnese as part of the Nigeria System. Nothing in the case file linked Lavagnese or its representatives to the Nigeria

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System, in particular, no one attached to Lavagnese was under investigation by the Police and there was no evidence of payment being made to Lavagnese or its representatives. Furthermore, Lavagnese had never tried to circumvent the rules; it had followed the FIGC registration procedure for foreign minor players and complied with Italian law.

- It did not breach Article 19 (4) of the FIFA RSTP. Players 4 and 5 were registered by Lavagnese with FIGC after the players turned 18 years old and Article 19 did not apply to them. Players 1 and 2 had registered with FIGC after FIGC granted Lavagnese an exemption; Lavagnese should not be blamed or sanctioned for FIGC’s actions.

- It did not breach Article 19 (1) and (3) of the FIFA RSTP. The players were already in Italy, without any involvement of Lavagnese when they were registered with FIGC. A violation of Article 19 only arises once a minor player is transferred to, or registered with, a club and not “when he entered into Italy”. Players 4 and 5 were registered after 18 years of age and were not registered with a prior club in Nigeria; there was no infraction committed as regards Players 4 and 5. FIGC owed a duty to assess the criteria for registration and should have rejected the registration requests for Players 1 and 2 if not in compliance with the applicable regulations.

- Article 19 was not directly applicable to it because FIGC had not incorporated it into its regulations. Moreover, FIGC’s guide for registration of amateur minors expressly permitted registration of a player in the care of a guardian and not a parent. Lavagnese followed the FIGC procedure and the registration requests were accepted. Also, in 2013 there was no clear FIFA or Court of Arbitration for Sport (“CAS”) jurisprudence regarding the status of a guardian appointed in the place of a parent. The uncertainty was only clarified in a CAS decision in 2017.

- It did not breach Article 9 (1) of the FIFA RSTP because the evidence showed that the players were not registered with another association. Consequently, an International Transfer Certificate (“ITC”) was not required.

- The sanctions were disproportionate and did not take into account: the non-profit status of an amateur club; the fact that Lavagnese had no choice but to follow FIGC rules; that Lavagnese acted with FIGC approval and in compliance with Italian law; and it did not benefit economically from the Nigeria System. Also, a transfer ban was reserved for the “big clubs” that transferred “dozens of players and deliberately violated FIFA rules to get an advantage”.

- The Appeal Committee should uphold the appeal and set aside the sanction, or, subsidiarily, reduce the sanction according to justice and suspend its implementation for a period of up to four years.

19. The Appeal Committee by its decision dated 11 November 2021 (“Appealed Decision”) partially upheld Lavagnese’s appeal as follows:

(operative part of 20 June 2022)

“1. The appeal lodged by the club USD Lavagnese 1919 against the decision passed by the Disciplinary Committee on 30 June 2021 is partially upheld. Said decision is amended as follows:

1. The club USD Lavagnese 1919 is banned from registering new players, both nationally and international level, for two (2) entire and consecutive registration periods following the notification of this decision for failing to comply with the relevant provisions of the RSTP related to the protection and transfer of minors.

2. The club USD Lavagnese 1919 is ordered to pay a fine to the amount of CHF 4,000.

3. The above fine is to be paid within thirty (30) days of notification of the present decision.

2. The club USD Lavagnese 1919 is ordered to pay the costs of the proceedings in the amount of CHF 1,000. This amount is offset against the fee of CHF 1,000 paid by the club USD Lavagnese 1919”.

20. The reasons for this decision were as follows:

- Regarding the procedural arguments, the Appeal Committee accepted that the appeal was admissible, and that the applicable law was the FIFA RSTP (2012 and 2014 editions) and Swiss law on a subsidiary basis. Italian law and FIGC rules could be taken into account. The burden of proof of establishing the infringements rested with FIFA to the standard of comfortable satisfaction. Article 35 (1) of the FIFA Disciplinary Code stated that “any type of proof may be produced” and that the competent judicial body has absolute discretion regarding the evidence evaluation. Accordingly, the Police Report could be admitted even though its reliability had not yet been tested in a competent Italian court.

- Regarding the merits, the Appeal Committee concluded that given the lack of evidence linking Lavagnese to Spezia Calcio in the Nigeria System, the Disciplinary Committee had erred in finding that Lavagnese was a part of the Nigeria System. It was “highly suspicious” that Players 1 and 2 who entered Italy on 30 September 2013, and Players 4 and 5 who entered Italy almost a year later on 26 August 2014, were all unaccompanied and assigned to two different guardians, all landed with Lavagnese for a period of time before being transferred to Spezia Calcio within a year of their official registration. Nonetheless, the Appeal Committee expressed serious doubts as to Lavagnese’s involvement in the Nigeria System, which was set up by Spezia Calcio, because there was no corroborating evidence of Lavagnese’s alleged involvement.

- Although FIGC had been delegated with authority to approve amateur foreign minor registrations for an amateur club instead of the FIFA Sub-Committee, nonetheless, the international transfer of a minor player and the first registration of a foreign minor player required approval from the FIFA Sub-Committee in accordance with Article 19 (4) of the FIFA RSTP. Players 1 and 2 did not satisfy any of the exceptions listed in Article 19 (2) of the FIFA RSTP. The wording of the exception is clear that the figure of guardian/tutor cannot encompass the notion of parent included in Article 19 (2) (a) of the FIFA RSTP. Also, the exception contemplates that the minor moves with his parents which did not

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occur because the Players came to Italy alone and were subsequently assigned a tutor or guardian prior to their registration. Article 6 (3) of the FIFA RSTP states that the registration process is always triggered by a request from a club.

- Lavagnese was negligent in registering the minors because it should have known that such registrations were not possible using the available resources and should not have started the process once it identified that the parents were not present. In 2011, CAS rendered an award in which it was unambiguously stated that Article 19 (2) (a) “did not cover the situation where the minor player’s residence may be at his aunt’s house, as the latter is not a ‘parent’ to the minor player in the sense of [this provision]”.

- It concluded that Players 1 and 2 had been wrongly registered as their situations did not fall within one of the Article 19 (2) exceptions and the transfers infringed Article 19 (1). As an application to the Sub-Committee was not made, the Club breached Article 19 (4) of the FIFA RSTP, and Articles 1 (1) Annexe 1 and Article 1 (3) Annexe 3. The Appeal Committee also concluded that an ITC was required for Players 1 and 2 to register them correctly, which was absent, and it held that Lavagnese also breached Article 9 (1) of the FIFA RSTP.

- Regarding Players 4 and 5, the Appeal Committee noted that there was no evidence of the players’ participation in organized football with Lavagnese while under the age of 18, or that they were already “parked” with Lavagnese until they could be registered once turning 18 years old. Although Mr Roberto Sannino, a person who is subject to criminal proceedings for his involvement in the Nigeria System, was the guardian of Players 4 and 5 and co-coach of Lavagnese at the time the players were registered, the Committee considered that there were “serious and insurmountable doubt” as to whether the players were with Lavagnese when they were minors. There was no evidence to conclude that Lavagnese breached Article 19 in respect of Players 4 and 5, and the findings of the Disciplinary Committee in that regard were set aside.

- The only element linking Lavagnese to Spezia Calcio was Lavagnese’s former co-coach and the guardian of Players 4 and 5 who appears to have been heavily involved in the Nigeria System. With the setting aside of the findings in relation to Players 4 and 5, and the Appeal Committee’s own conclusion that there was no link between Lavagnese and Spezia Calcio in relation to Players 1 and 2, the Appeal Committee was unable to conclude that Lavagnese was involved in the Nigeria System due to a lack of evidence. It noted however, that the circumstances by which the players came to be at Lavagnese were “highly suspicious”.

- On the issue of the proportionality of the sanction, the Appeal Committee noted that the breaches regarding Players 1 and 2 were confirmed, and the violations annulled against Players 4 and 5. Taking into account the circumstances of the case, and the materials at Lavagnese’s disposal to familiarise itself with the scope of Article 19 (e.g. the FIFA RSTP, its Commentary and CAS decisions) and the reference in the FIGC Guide to the FIFA

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Regulations, the Appeal Committee decided to halve the registration ban to two registration periods and confirm the fine of CHF 4,000.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

21. On 8 January 2022, pursuant to Article R48 of the Code of Sports-related Arbitration (the “Code”) the Appellant filed a Statement of Appeal, against the Respondent regarding the Appealed Decision, with the CAS. In its Statement of Appeal, the Appellant requested an expedited procedure in accordance with Article R52 of the Code, with a decision before 30 June 2022. It also nominated Mr Jacopo Tognon, Attorney-at-law in Padova, Italy, as arbitrator, and chose English as the language of the arbitration.

22. On 13 January 2022, the Appellant notified the CAS Court Office that it had agreed an expedited procedural calendar with the Respondent under Article R52 (4) of the Code, aimed at obtaining the Operative Part of a Final Award by 30 June 2022.

23. Also, on 13 January 2022, the CAS Court Office invited the Respondent to confirm in writing whether it agreed to the procedural calendar notified by the Appellant.

24. On 14 January 2022, the Respondent informed the CAS Court Office that it agreed to the procedural calendar outlined in the Appellant’s communication, and agreed to English as the official language of the procedure.

25. Still on 14 January 2022, the CAS Court Office confirmed the expedited procedural calendar agreed by the Parties in accordance with Article R52 (4) of the Code.

26. On 24 January 2022, the Respondent informed the CAS Court Office that it appointed Dr Anna Bordiugova, Attorney-at-law in Kyiv, Ukraine, as arbitrator.

27. On 8 February 2022, the CAS Court Office, on behalf of the President of the CAS Appeals Arbitration Division, confirmed the constitution of the Panel as follows:

President: Dr Leanne O’Leary, Solicitor in Lancashire, United Kingdom

Arbitrators: Mr Jacopo Tognon, Attorney-at-law in Padova, Italy Dr Anna Bordiugova, Attorney-at-law in Kyiv, Ukraine

28. On 15 February 2022, the CAS Court Office informed the Parties that the proceedings had been set down for a hearing on 24 May 2022.

29. On 17 February 2022, the Appellant informed the CAS Court Office of its preference for the hearing to be held by videoconference.

30. Still on 17 February 2022, the Respondent informed the CAS Court Office that it did not object to a hearing held by videoconference.

(operative part of 20 June 2022)

31. On 28 February 2022, in accordance with Article R51 of the Code and within the time outlined in the expedited hearing calendar, the Appellant filed its Appeal Brief.

32. On 29 March 2022, the CAS Court Office confirmed that the hearing scheduled for 24 May 2022 would be held by videoconference.

33. On 19 April 2022, in accordance with Article R55 of the Code, the expedited procedural calendar and a previously agreed extension of time, the Respondent filed its Answer.

34. On 22 April 2022, the CAS Court Office forwarded the Order of Procedure to the Parties, which the Respondent returned in duly signed copy on the same day and the Appellant returned in signed copy on 29 April 2022.

35. On 24 May 2022, a hearing took place by video-conference. Besides the Panel and Mr Fabien Cagneux, CAS Managing Counsel, the following people also attended:

For the Appellant:

Mr Luca Smacchia, Legal Counsel

Mr Federico Menichini, Legal Counsel

For the Respondent:

Mr Miguel Liétard Fernández-Palacios, Director of Litigation

Mr Saverio Paolo Spera, Senior Legal Counsel

36. At the outset of the hearing, the Parties confirmed that they had no objections in respect of the Panel and that the Panel had jurisdiction over the present dispute.

37. The Appellant then raised a preliminary matter regarding the date for the Operative Part of the Final Award, which had previously been agreed for 30 June 2022. For operational reasons relating to the end of the football season, the Appellant requested that the date for the Operative Part of the Final Award be brought forward to 15 June 2022. The Respondent did not object and the Panel confirmed 15 June 2022 as the date by which the Operative Part of the Final Award would be provided.

38. The Parties were given the opportunity to present their oral pleadings. No witnesses attended to give oral evidence.

39. Before the hearing concluded, the Parties confirmed that they did not have any objection with the procedure adopted by the Panel and that their rights to be heard and to be treated equally had been duly respected.

(operative part of 20 June 2022)

V. SUBMISSIONS OF THE PARTIES

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

- According to Article 49 of the FIFA Disciplinary Code and Article 58 of the FIFA Statutes, appeals against final decisions of FIFA’s legal bodies shall be lodged with CAS. The jurisdiction of the CAS is not disputed.

- The Appeal Brief was filed within the time prescribed under Article R51 of the Code and is admissible.

- Under Article R58 of the Code, Article 57 (2) of the FIFA Statutes and Article 5 of the FIFA Disciplinary Code, the applicable law is the FIFA RSTP (editions 2012 and 2014), together with Swiss law on a subsidiary basis. As the Appellant is a private association incorporated under Italian law and affiliated to FIGC, due consideration should also be given to the applicable and mandatory Italian law and the FIGC rules.

- The FIFA Appeal Committee correctly concluded that there was no evidence that Lavagnese received any benefit from Spezia Calcio and no evidence that Lavagnese was a part of the Nigeria System. The FIFA Appeal Committee set aside the violations in relation to Player 4 and Player 5 and imposed a grossly disproportionate sanction of a ban for two consecutive registration periods in respect of violations regarding Players 1 and 2.

- Lavagnese considers that it acted in line with the applicable rules and that Player 1 and Player 2 were correctly registered. In 2009, FIGC was granted approval by FIFA to register an amateur minor player with an amateur club without prior approval of the FIFA Sub-Committee. Lavagnese respected the FIGC rules and submitted registration requests for Player 1 and Player 2 to FIGC, which were approved. Lavagnese was not obliged to obtain the prior approval of the FIFA Sub-Committee or refer any request for registration to the FIFA Sub-Committee. At the relevant time, Lavagnese was not permitted to apply to FIFA and could only apply to FIGC.

- Any procedural violation should be attributed to FIGC and not Lavagnese (see CAS 2016/A/4805 which confirms that certain procedural violations in relation to Article 19 cannot be attributed to a club). It is up to a national association to decide whether to refer a request to the FIFA Sub-Committee (see CAS 2016/A/4805).

- Lavagnese is an amateur club with no experience in international football or FIFA Regulations and has no specialized personnel. It followed the official FIGC guidance released during the 2013/2014 football season, which clearly highlighted the exception for the registration of a minor with an amateur club who had a guardian present and not his parents.

(operative part of 20 June 2022)

- Under Italian law (Article 357 of the Civil Code) a guardian is “the person who takes care of the minor, represents him in all civil acts, and administers his assets”. Exercising its power granted by FIFA, FIGC treated Players 1 and 2 as minors living with their parents and approved the exception in writing.

- Lavagnese acted bona fide and submitted all documentation required to gain the registrations. Article 19 was not incorporated in FIGC rules and was not directly applicable to the Appellant. Lavagnese was only required to follow the FIGC guidance and Italian law.

- Any substantial violation of Article 19 is attributable to FIGC because FIGC registered the Players, not Lavagnese, and the registrations were approved because they were made in compliance with the Italian Civil Code.

- The Appealed Decision requires an amateur club to have complete knowledge of FIFA provisions and their interpretation, FIFA jurisprudence, CAS jurisprudence and to ignore the rules of its national association and state laws, which is unrealistic. A club is required to comply with the rules of its national association and to develop a relationship with FIFA only indirectly. A club has trust in and a legitimate expectation that its national association will not be negligent.

- It is not known whether FIGC has been sanctioned for its actions. FIGC was approving many registrations of minors without parents but with a guardian, without FIFA ever intervening in the practice. In 2013, there was no clear FIFA or CAS jurisprudence which confirmed that a guardian with parental authority was not the same as a parent.

- A guardian is not a relative but a legal role that substitutes for that of the parents. Under Italian law, a guardian has the legal power to represent the minor and has “parental authority”. The registration of Players 1 and 2 occurred at a time when there was uncertainty regarding the conflict between the FIFA RSTP and Italian immigration law and the FIGC granted registrations to avoid being sued for discrimination (see Ordinanza of the Tribunale di Palermo of 18 December 2015). The relationship between national law and FIFA Regulations was only confirmed in June 2017. Lavagnese should not be penalized because of the uncertainty at the time the breach occurred.

- The Nigerian Football Association (the “NFA”) was not required to issue an ITC in respect of Players 1 and 2. Player 1 confirmed that he was not registered with any prior club or national association, his parents confirmed, the NFA confirmed, and it was verified by the FIGC. Player 2 also confirmed that he was not registered with any prior club or national association, as did his parents and the NFA. FIGC subsequently confirmed the fact with the NFA directly.

• The sanction is grossly disproportionate because it consists of a transfer ban, which applies at a national and international level, and corresponds to one year, namely 1 January

• 30 June 2022 (first registration period) and 1 July – 31 December 2022 (second

(operative part of 20 June 2022)

registration period), and a fine of CHF 4,000. Lavagnese always acted in line with applicable laws and regulations and did not commit the violations alleged.

2018/A/6239, CAS 2013/A/3358, the proportionality of a sanction must be determined on a case-by-case basis considering: the specific circumstances at issue; the behaviour and degree of responsibility of the defaulting party; any possible aggravating or mitigating factor; and the interests at stake.

- An infringement of Article 19 contains a procedural element and a substantive element. For the procedural element, Lavagnese had no choice other than to follow the FIGC rules and it cannot be held liable for something beyond its control. With respect to the substantive element, Lavagnese had FIGC approval and complied with Italian law.

- Lavagnese did not seek to intentionally circumvent the rules and there is no evidence that Lavagnese gained financially from registering the players.

- In mitigation, Lavagnese is a not-for-profit amateur club, operated by volunteers, with no professionals involved in its management. The facts relate to an isolated incident that happened once, involved two minors and are not part of a pattern of habitual conduct, were not intentional, and had the approval of FIGC.

- The severity of the sanction is unprecedented when considering the sanctions imposed in comparable cases involving big professional clubs that are operated by paid employees, have registered many players across a lengthy period, and intentionally violated FIFA rules regarding minors for financial advantage. For example, in CAS 2016/A/4785, Real Madrid was found liable for 37 violations of FIFA rules in relation to minors and had a sanction reduced on appeal from two registration bans to one, and a fine imposed of CHF 240,000. In CAS 2019/A/6301, Chelsea FC, which was found liable for 66 violations of FIFA rules in relation to minors, incurred a transfer ban of one entire and consecutive registration period and a fine of CHF 300,000. In CAS 2014/A/3793, FC Barcelona committed 31 violations, 10 of which were substantial violations of Article 19, and received a ban for two entire and consecutive registration periods and a fine of CHF 240,000. In CAS 2016/A/4805, Atlético de Madrid SAD committed 153 violations of FIFA rules in relation to minors, 26 of which were substantial violations of Article 19, and had a ban of two entire and consecutive registration periods imposed, together with a fine of CHF 550,000.

- Regarding the level of fine imposed on the professional clubs when compared to the revenues incurred during the football season, Real Madrid reported revenue in the football season 2016/2017 of EUR 671 million and a fine of CHF 240,000 is equal to approximately 0.0357% of its revenue. Similarly, Chelsea FC reported EUR 498 million and a fine of CHF 300,000 equated to almost 0.0602% of its revenue. Proportionately, a fine of CHF 4,000 imposed on the Appellant would require revenue of at least EUR 8 million and Lavagnese’s revenue is closer to EUR 441,000.

(operative part of 20 June 2022)

- Lavagnese enters year-long contracts only and every player becomes a free agent at the end of the football season. If a transfer ban of two registration periods is confirmed, Lavagnese will lose a lot of players now playing in its first team and will not be able to register new ones. It could potentially lead to the end of the club as it will not be able to field a team with enough players to compete in the competition. Also, the transfer ban imposed, de facto, limits Lavagnese for more than two registration periods because, in 2022, FIGC has provided amateur clubs with more than two registration periods.

- In its Appeal Brief, Lavagnese submitted the following request for relief:

“USD Lavagnese lodges the present Statement of Appeal requesting to the CAS:

- in the merit, to uphold the present appeal and annual the ban on registering new players imposed to the Appellant by the FIFA Appeals Committee;

- subsidiarily, to reduce said sanction according to justice”.

41. FIFA’s submissions may be summarised as follows:

- It does not dispute the jurisdiction of CAS to determine this appeal, which is filed pursuant to Article 58 (1) of the FIFA Statutes. It also does not dispute the admissibility of Lavagnese’s appeal.

- The FIFA Statutes and regulations, specifically the FIFA RSTP and the FIFA Disciplinary Code constitute the applicable law and Swiss law shall be applied subsidiarily.

- Italian law does not apply to the present matter because: under Article R28 of the Code, as the seat of the arbitration is Lausanne, Switzerland, the lex arbitri or procedural law applicable to the present matter is Swiss arbitration law; Article 176 (1) of the Swiss Private International Law Act (the “PILA”) provides that international arbitration law applies when at least one of the parties is resident or domiciled outside Switzerland; ordinarily Article 187(1) PILA applies to determine the applicable law, however, by agreeing to the jurisdiction of CAS, the parties implicitly declare that they agree to the application of the Code and not Article 187(1); the relevant rules are Article R58 of the Code, and Article 57(2) of the FIFA Statutes, therefore the dispute must be decided according to the FIFA Regulations and subsidiarily, Swiss law. Italian law is irrelevant.

- These rules regarding the applicable law are necessary and desirable because sport is a phenomenon that crosses borders. It is important, at an international level to have uniform legal standards that apply to everyone who participates to ensure the integrity and equal opportunity of sporting competition.

- Article 19 (1) RSTP forbids the international transfer of minors. Its aim is to protect minors and avoid the circumvention of FIFA’s rules. In the 1990s complaints were made regarding the human trafficking of football players, including minors, from Africa and South America to clubs in Europe. FIFA adopted strict rules on international transfers

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of young players and the protection of minors was one of the principles included in the agreement between FIFA, UEFA and the European Commission and is one of the essential pillars of the RSTP.

- Articles 19 (2) and (3) provide exceptions to the prohibition and allow for the international transfer of a player before the age of 18 subject to the fulfilment of strict conditions. CAS jurisprudence establishes that these restrictions are applied restrictively

- When considering an alleged breach of Article 19, the Panel must bear in mind the aim and purpose of Article 19 RSTP, the interest protected and the intent of the legislator 62 and 65.)

- The present proceedings arise in the context of a child trafficking scheme in which Lavagnese registered four minor players (two prior to their 18th birthdays) who came to Italy under the so-called Nigeria System. The Nigeria System was orchestrated by Spezia Calcio, involved Lavagnese and others, and involved the creation of fake guardianships to facilitate the profit, or attempt to profit, from thirteen underage players who were brought to Italy.

- FIFA submitted that Lavagnese profited from the Nigeria System by unlawfully registering the minors, and even if it did not, which it submits is unlikely, Lavagnese registered the players and transferred them to Spezia Calcio.

- Lavagnese breached Article 19 (1) of the RSTP, cannot rely on the exceptions contained in Article 19 (2) (a), and the sanction imposed was just and proportionate.

- Regarding the Article 19 (1) breach, while evidentially it was difficult to prove that Lavagnese received benefits from Spezia Calcio, Lavagnese’s co-coach was one of the guardians and Lavagnese registered players who were unlawfully drawn by Spezia Calcio’s accomplices from the Abuja academy in Nigeria and transferred to Spezia Calcio as part of an elaborate child trafficking scheme.

- Lavagnese’s reliance on the FIGC Rules in its defence is misplaced because: a) the relevant FIGC rules state that the RSTP have primacy; and b) Article 1 (3) of the RSTP specifically states the Article 19 RSTP is binding at a national level.

- Article 19 applies equally to amateur and professional players (CAS 2016/A/4805; CAS 2008/A/1485), and to amateur and professional football clubs, including Lavagnese.

- Lavagnese’s claim that the FIGC is responsible for the violation of Article 19 because it operates the national registration of players should be dismissed because only a club can initiate the transfer process by submitting a request to the relevant national association

(operative part of 20 June 2022)

(CAS 2014/A/3793, para 9.4). Lavagnese should have been aware that the Nigerian players could not be registered in any legitimate way under the FIFA RSTP and its wilful ignorance can lead to the imposition of sporting sanctions.

- Lavagnese’s argument that it met the requirements for the exception under Article 19 (2) of the FIFA RSTP by virtue of Italian immigration law is irrelevant because Italian law does not apply. Furthermore, for the exception to apply, the minor must move with his/her parents for reasons unrelated to football. It is undisputed that none of the Nigerian minors moved with their parents. The term “parent” is also interpreted in a strict way and a stranger who assumes the role of guardian cannot be considered a parent. Also, the move of all players under the Nigeria System occurred for reasons linked to football.

- Lavagnese’s claim that as an amateur club it could not be expected to know about the FIFA RSTP is untenable. Ignorance of the law is no excuse and permitting such a defence would be detrimental to the system of international football. It would require establishing the accused’s knowledge of the FIFA RSTP and incentivize others to circumvent the rules.

- Although CAS 2016/A/4805 considered the compatibility between national and FIFA regulations was decided after Lavagnese committed the breach, the strict interpretation of Article 19 is clear and has been established in CAS jurisprudence since 2005.

- Lavagnese was also held to have breached Articles 19 (4), Article 19 (1), and Annex 2 and 3 of the RSTP. It was demonstrated that the minor players were transferred to Italy and that an ITC was not requested for Players 1 and 2 thereby violating Article 9. Lavagnese registered the players by misusing the Limited Minor Exception (LME), which is strictly limited to the exceptions provided in Article 19 (2). Their enrolment in a school was a façade because the players never attended school. Lavagnese failed to obtain the relevant approval from FIFA before registering the players.

- Notwithstanding Article R57 of the Code, the Panel shall amend a disciplinary decision of a FIFA body only in cases in which the relevant FIFA judicial body exceeded the margin of discretion accorded to it by the principle of association autonomy i.e., only in cases where the FIFA body is held to have acted arbitrarily.

- Lavagnese’s violations of FIFA rules justifies the imposition of a significant sanction. The transfer ban of two registration periods and a fine of CHF 4,000 is just and proportionate. The sanction is not disproportionate, in fact, there are other harsher sanctions that might have been imposed (CAS 2014/A/3793, para 9.32). The conduct occurred in the context of a wider child trafficking scheme and a serious sanction is required as a deterrent measure.

- In its Answer, the Respondent submitted the following requests for relief:

“Based on the foregoing, FIFA respectfully requests CAS to issue an award on the merits:

(operative part of 20 June 2022)

(a) rejecting the reliefs sought by the Appellant;

(b) confirming the appealed decision;

(c) ordering the Appellant to bear the full costs of these arbitration proceedings”.