Sport Lisboa e Benfica Futebol SAD v. Fédération Internationale de Football Association (FIFA)

At a glance

Parties

Sport Lisboa e Benfica SAD (Portugal) v. Fédération Internationale de Football Association (FIFA)

Case no.

CAS 2021/A/8076

Forum and rules

Court of Arbitration for Sport, appeals procedure (CAS Code); FIFA regulations, Swiss law subsidiarily

Treaty

None. Appeal under Articles 56–57 of the FIFA Statutes

Tribunal

Alexander McLin (President), Massimo Coccia, Ricardo de Buen Rodríguez

Sector

Football; player transfers

Outcome

Appeal partially upheld (10 October 2022). The breach of Article 18bis RSTP was confirmed for Clause 2.3 only. Clause 4.4 was held lawful. The fine was halved and the warning confirmed.

Amount

Fine reduced from CHF 40,000 to CHF 20,000, payable to FIFA within 30 days

The dispute

On 30 January 2020 Benfica transferred the Brazilian player Vinicius de Lima Ferreira to Avaí FC free of charge. Benfica kept a 50% sell-on right (Clause 2.1) and a preferential right (Clause 4.1). Clause 2.3 required Avaí to pay an extra EUR 10,000,000 if it transferred the player to FC Porto, Sporting Clube de Portugal or Sporting Clube de Braga. Clause 4.4 imposed a EUR 10,000,000 penalty if Avaí ended the player's contract or otherwise disposed of his rights without granting the preferential right. In the Transfer Matching System (TMS), Benfica declared that there was no third-party influence. The FIFA Disciplinary Committee (24 September 2020) and the FIFA Appeal Committee (8 April 2021) found breaches of Article 18bis RSTP and Article 4(3) of Annexe 3 RSTP. They imposed a fine of CHF 40,000 and a warning. Before CAS, Benfica argued four points: Article 18bis was unclear and had long gone unenforced (predictability, estoppel); a single agreement could not create undue influence; Clause 4.4 only protected its preferential right; and the double sanction breached ne bis in idem. In the alternative, it asked for a lower fine.

Key holdings

1. Article 18bis RSTP is clear and precise enough to meet the principle of nulla poena sine lege clara. It is binding even though it went largely unenforced for years, and estoppel does not apply. Benfica could not rely on that uncertainty, because FIFA had already sanctioned it for similar violations before it signed the Agreement. ¶¶ 54–61
2. Article 18bis restricts freedom of contract, so it must be read narrowly and applied case by case; in case of doubt, freedom of contract prevails. A breach occurs when a contract gives the other party a real and effective ability to influence the club, even if the influence never materialises. A single agreement can be enough. The relative sporting and financial weight of the clubs and the amounts at stake are key circumstances. ¶¶ 68, 74–81
3. Clause 2.3 breaches Article 18bis. The EUR 10,000,000 surcharge for a transfer to one of Benfica's three domestic rivals could effectively and unreasonably dissuade Avaí from such a transfer. The Panel found this decisive given the gap between the clubs and the amounts involved: the sum equalled 10,000% of the player's value, 156 times Avaí's 2020/2021 transfer earnings and more than 400 times the player's yearly salary. ¶¶ 89–97
4. Clause 4.4 does not breach Article 18bis. It only enforces a legitimate preferential right, and Avaí could avoid the penalty with a single notification before any termination. The size of the penalty alone does not show undue influence; it could be reduced under Article 163(3) of the Swiss Code of Obligations. ¶¶ 104–107
5. Benfica breached Article 4(3) of Annexe 3 RSTP by declaring no influence in TMS. Ne bis in idem does not apply, because that provision punishes a different conduct (failing to declare) from Article 18bis (entering into the contract). ¶¶ 115–119
6. The fine was manifestly disproportionate, because only one clause breached Article 18bis and Benfica had cooperated promptly with FIFA. The Panel reduced it from CHF 40,000 to CHF 20,000. It confirmed the warning, noting that this was Benfica's fifth violation of Article 18bis. ¶¶ 128–132

Procedural history

1. 30 January 2020Benfica and Avaí conclude the transfer agreement. Benfica enters the transfer instruction in TMS on 31 January 2020.
2. 21 July 2020FIFA opens disciplinary proceedings after an investigation by FIFA TMS.
3. 24 September 2020The FIFA Disciplinary Committee fines Benfica CHF 40,000 and issues a warning.
4. 8 April 2021The FIFA Appeal Committee rejects Benfica's appeal. Its grounds are notified on 3 June 2021.
5. 24 June 2021Benfica files its Statement of Appeal with CAS. The Panel is constituted on 24 August 2021.
6. 17 November 2021Hearing held by videoconference.
7. 10 October 2022Award: appeal partially upheld; the fine is reduced to CHF 20,000.

Tribunal, counsel and experts

Decided by

• Alexander McLin President, CAS Panel
• Massimo Coccia Co-arbitrator, CAS Panel — appointed by the claimant
• Ricardo de Buen Rodríguez Co-arbitrator, CAS Panel — appointed by the respondent

For the claimant

Benfica in-house counsel · Martin Páez

For the respondent

FIFA Litigation

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Keywords

• Benfica
• Avaí
• third-party influence
• Article 18bis RSTP
• FIFA Regulations on the Status and Transfer of Players
• Transfer Matching System
• Annexe 3 Article 4(3)
• sell-on clause
• anti-rival clause
• preferential right
• penalty clause
• nulla poena sine lege clara
• estoppel
• ne bis in idem
• proportionality of sanction
• freedom of contract
• football transfer

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