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International Arbitration Forum

Association Sporting Club Bastiais, SCIC Sporting Club Bastia v. Fédération Internationale de Football Association (FIFA), FSV Mainz 05

Case summary

At a glance

Parties
Association Sporting Club Bastiais and SCIC Sporting Club Bastia (France) v. FIFA and FSV Mainz 05 (Germany)
Case no.
CAS 2021/A/8060
Forum and rules
Court of Arbitration for Sport, appeals procedure (CAS Code 2021 edition); FIFA regulations, with Swiss law applying subsidiarily
Tribunal
Rui Botica Santos (President), Mathieu Maisonneuve, José Juan Pintó
Sector
Football; player loan fee; disciplinary sanction
Outcome
Appeal dismissed. The FIFA Disciplinary Committee decision of 8 April 2021 was confirmed in its entirety (award of 25 April 2023).
Amount
Debt under the FIFA PSC Decision: EUR 210,000 plus 5% interest p.a. The FIFA DC also ordered CHF 5,000 in costs to Mainz, a fine of CHF 22,500 and CHF 16,000 in costs to FIFA, and a further fine of CHF 20,000. The published award omits the CAS costs rulings.

The dispute

On 29 August 2016 "SC Bastia" borrowed a player from FSV Mainz 05 for a loan fee of EUR 350,000, payable in ten instalments. The company that ran Bastia's professional team at the time, the SASP, paid only part of the fee. On 3 October 2017 the Single Judge of the FIFA Players' Status Committee ordered "SC Bastia" to pay EUR 210,000. The SASP had already been judicially liquidated on 5 September 2017. Bastia's amateur association then took the reserve team up through the divisions, and from 2019 a new company, the SCIC, managed that team. Mainz asked FIFA to open disciplinary proceedings. On 8 April 2021 the FIFA Disciplinary Committee found "SC Bastia" guilty of failing to comply with the PSC decision and held the SCIC liable for the debt. The Association and the SCIC appealed on four grounds: the FIFA DC lacked competence; the PSC proceedings should have been closed because of the liquidation; Article 15(4) of the FIFA Disciplinary Code 2019 (sporting successor) was applied retroactively; and they were neither successors of the SASP nor the same club.

Key holdings

  1. The FIFA Disciplinary Code 2019 applies. Liability for a third party's debts is a continuing offence, so the applicable version is the one in force when the offence is assessed. Article 15(4) only codified earlier FIFA and CAS case law on sporting succession, so the mitius principle (applying the milder earlier rule) changes nothing. ¶¶ 164–166
  2. The appellants' right to be heard was not violated by the refusal of a second round of written submissions. There were no exceptional circumstances under Article R56, the sporting-continuity argument already appeared in the appealed decision, and the appellants could reply orally at the hearing. ¶¶ 172–177
  3. The PSC was not obliged to close its proceedings. Article 55 of the FDC 2019 is discretionary and is reserved for the FIFA DC. It concerns the enforcement of a debt, not its recognition. Losing affiliation to the professional league (LFP) is irrelevant because the Association stayed affiliated to the French Football Federation. The PSC Decision was never appealed and is final. ¶¶ 182–188
  4. The FIFA DC was competent. The PSC Decision was addressed to the club "SC Bastia", not to a particular legal entity, and the dispute before the DC was vertical. CAS 2017/A/5460 was distinguished. ¶¶ 190–200
  5. The Panel distinguished sporting succession from sporting continuity. In succession, a new entity continues a club that has ceased its activity. In continuity, the club stays in business through at least one surviving entity, without any break in its federation membership. Here the Association never ceased to exist and remained affiliated to the FFF, so the case is one of continuity. ¶¶ 205–221
  6. The Association and the SCIC are the same club "SC Bastia" that signed the Loan Agreement and was ordered to pay. They share its headquarters, name, colours, emblem, stadium, history and the Association's shareholding, and they presented themselves to third parties as that club. Bona fide third parties are protected under the principle of legitimate expectations. ¶¶ 231–248
  7. The argument that holding the appellants liable would breach French public policy was dismissed. CAS cannot set aside the rules of international federations on the ground that they offend a national public policy alien to the lex causae. The appeal was dismissed and the decision confirmed. ¶¶ 249–254; operative part

Procedural history

  1. 29 August 2016"SC Bastia" and Mainz conclude the Loan Agreement for the player, with a loan fee of EUR 350,000.
  2. 5 September 2017The SASP is judicially liquidated and loses its affiliation to the LFP.
  3. 3 October 2017The Single Judge of the FIFA PSC orders "SC Bastia" to pay EUR 210,000 plus 5% interest.
  4. 15 May 2019The SCIC is created.
  5. 8 April 2021The FIFA DC finds SC Bastia guilty of failing to comply with the PSC decision and imposes fines and a possible transfer ban. Its grounds are notified on 3 June 2021.
  6. 22 June 2021The Association and the SCIC file their statement of appeal with CAS.
  7. 2 November 2021The Panel is constituted.
  8. 21 April 2022Hearing in Lausanne.
  9. 25 April 2023Award: appeal dismissed and FIFA DC decision confirmed.

Tribunal, counsel and experts

Decided by
For the claimant
Patricia Moyersoen · Amaud Bied
For the respondent
FIFA · FSV Mainz 05

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
CAS 2021/A/8060
Claimant
Association Sporting Club Bastiais, SCIC Sporting Club Bastia
Respondent
Fédération Internationale de Football Association (FIFA), FSV Mainz 05
Documents

Procedure: Appeal
Sport: Football
Matter: Disciplinary (except doping)
Outcome: Dismissed
Panel: José J. Pintó, Rui Botica Santos, Mathieu Maisonneuve
Source: Court of Arbitration for Sport case database.