Association Sporting Club Bastiais, SCIC Sporting Club Bastia v. Fédération Internationale de Football Association (FIFA), RCD Espanyol de Barcelona SAD

At a glance

Parties

Association Sporting Club Bastiais and SCIC Sporting Club Bastia (France) v. FIFA and RCD Espanyol de Barcelona (Spain)

Case no.

CAS 2021/A/8061

Forum and rules

Court of Arbitration for Sport, appeals procedure under the CAS Code (2021 edition); FIFA regulations applied, with Swiss law as subsidiary law

Treaty

None. Appeal under Article 58(1) of the FIFA Statutes against a FIFA Disciplinary Committee decision

Tribunal

Rui Botica Santos (President), Mathieu Maisonneuve, José Juan Pintó

Sector

Professional football; player transfer

Outcome

Appeal dismissed. The FIFA Disciplinary Committee decision of 8 April 2021 was confirmed in full. The cover page dates the award 25 April 2023; the page headers say 25 April 2022.

Amount

Debt under the FIFA PSC decision: EUR 320,000 plus 5% annual interest. FIFA DC sanctions: CHF 5,000 in costs payable to Espanyol, CHF 16,000 in costs payable to FIFA, and a fine of CHF 20,000. The published award redacts the CAS costs rulings.

The dispute

On 28 July 2016 "SC Bastia" agreed to pay RCD Espanyol a transfer fee of EUR 300,000 for a player. The fee was never paid. On 10 November 2017 the Single Judge of the FIFA Players' Status Committee ordered "SC Bastia" to pay EUR 320,000 plus interest. Meanwhile, on 5 September 2017, the company that ran the professional team, the SASP Sporting Club Bastia, had been put into judicial liquidation. The supporting Association kept the club going: its team climbed from the fifth division back to Ligue 2, and from 2019 a new company, SCIC Sporting Club Bastia, managed that team. On 8 April 2021 the FIFA Disciplinary Committee found "SC Bastia" guilty of failing to comply with the PSC decision. It ordered payment, fined the club CHF 20,000 and warned of a transfer ban. On appeal, the Association and the SCIC argued four points: the FIFA DC lacked competence; the PSC proceedings should have been closed because of the liquidation; the 2017 FIFA Disciplinary Code applied, not Article 15(4) of the 2019 Code; and they were neither the SASP's sporting successors nor the same club. FIFA and Espanyol answered that SC Bastia had continued without interruption and, in the alternative, that the appellants were sporting successors.

Key holdings

1. The 2019 FIFA Disciplinary Code applies. Liability for a third party's debt is a continuing offence, so the applicable version is the one in force when the offence is assessed. Article 15(4) FDC 2019 only codified earlier FIFA and CAS case law on sporting succession, so the milder-law exception does not help the appellants. ¶¶ 163–165
2. Refusing a second round of written submissions did not breach the right to be heard. There were no exceptional circumstances under Article R56. The FIFA DC decision had already raised sporting continuity. The appellants could answer the point orally at the hearing. ¶¶ 171–176
3. Article 55 FDC 2019 allows the closure of proceedings for insolvency but does not require it, and it applies only to FIFA DC enforcement proceedings, not to PSC proceedings that establish a debt. The Association never lost its affiliation to the FFF. Losing affiliation to the LFP was irrelevant. Nobody appealed the PSC decision, so it became final. ¶¶ 181–187
4. The FIFA DC had competence. The PSC decision was addressed to the club "SC Bastia", not to a specific legal entity. The dispute before the DC was vertical. Article 53 FDC 2019 gives the DC competence over failures to respect decisions. CAS 2017/A/5460 was distinguished. ¶¶ 189–199
5. Sporting succession and sporting continuity are different. Succession arises when a new entity continues the activity of a club that has ceased. Continuity arises when the club stays in business, without interruption in its federation membership, through at least one entity that survives. Here the Association never ceased to exist, so the case is one of continuity. ¶¶ 207–220
6. The Association and the SCIC are the same club "SC Bastia" that signed the Transfer Agreement, not its successors. They share the club's headquarters, name, colours, emblem, stadium and history, and the Association is a shareholder of the SCIC. They present themselves to bona fide third parties as SC Bastia, and the protection of legitimate expectations forms part of the lex sportiva. ¶¶ 229–247
7. The appellants argued that holding them liable breached French public policy. The Panel rejected the argument as inadmissible: CAS cannot set aside FIFA rules for breaching a national public policy that is alien to the lex causae. The appeal was dismissed and the FIFA DC decision confirmed in full. ¶¶ 248–252; operative part

Procedural history

1. 28 July 2016Transfer Agreement between "SC Bastia" and RCD Espanyol, with a transfer fee of EUR 300,000.
2. 5 September 2017The SASP Sporting Club Bastia is put into judicial liquidation and loses its LFP affiliation.
3. 10 November 2017The Single Judge of the FIFA PSC orders "SC Bastia" to pay EUR 320,000 plus interest. Nobody appeals the decision.
4. 15 May 2019The SCIC Sporting Club Bastia is created.
5. 9 February 2021The FIFA Disciplinary Committee opens disciplinary proceedings against "SC Bastia".
6. 8 April 2021The FIFA DC decision finds SC Bastia guilty of non-compliance and imposes a fine and costs. The grounds are notified on 3 June 2021.
7. 22 June 2021The Association and the SCIC file their statement of appeal with CAS.
8. 2 November 2021The Panel is constituted.
9. 21 April 2022Hearing in Lausanne.
10. 25 April 2023Award dismisses the appeal (the page headers date it 25 April 2022).

Tribunal, counsel and experts

Decided by

• Rui Botica Santos President, CAS Panel
• Mathieu Maisonneuve Co-arbitrator, CAS Panel
• José Juan Pintó Co-arbitrator, CAS Panel

For the claimant

Patricia Moyersoen · Amaud Bied

For the respondent

FIFA Litigation · RCD Espanyol de Barcelona (in-house)

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Keywords

• SC Bastia
• Espanyol
• sporting continuity
• sporting succession
• failure to comply with FIFA decision
• Article 15 FIFA Disciplinary Code
• FDC 2019
• non-retroactivity
• lex mitior
• insolvency
• judicial liquidation
• definition of club
• legitimate expectations
• right to be heard
• second round of submissions
• national public policy
• FIFA Players' Status Committee
• transfer fee

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