CAS Case Digest · Verified against the full award text

CAS 2012/A/2817 — Fenerbahçe Spor Kulübü v. Fédération Internationale de Football Association & Roberto Carlos Da Silva Rocha

"Fenerbahçe v. FIFA & Roberto Carlos" · CAS dismissed Fenerbahçe's appeal seeking FIFA disciplinary enforcement of an ordinary CAS award against Roberto Carlos, applying the lex mitior principle.

What happened in Fenerbahçe v. FIFA & Roberto Carlos

Fenerbahçe obtained a CAS ordinary arbitration award (CAS 2010/O/2276, issued 8 June 2011) ordering Roberto Carlos to pay €1,000,000 plus 5% annual interest. When the player failed to pay, Fenerbahçe asked FIFA's Disciplinary Committee to open proceedings under Article 64 of the FIFA Disciplinary Code (FDC). On 9 March 2012, the Disciplinary Committee declared the request inadmissible, holding it could only enforce CAS awards rendered on appeal from a FIFA first-instance decision. Fenerbahçe appealed to CAS. The Panel found that the plain wording of Article 64 FDC 2009 — which referred simply to 'CAS' without qualification — did cover ordinary CAS awards, making the Disciplinary Committee's reasoning wrong. However, the FDC 2011 (in force from 1 August 2011) expressly limited enforcement to 'subsequent CAS appeal decisions,' removing ordinary awards from scope. Applying the lex mitior principle — a fundamental principle recognised in Article 4 FDC 2011 and international human rights instruments — the Panel held that Roberto Carlos must benefit from the more favourable later rule. Because his non-compliance was no longer a disciplinary offence under the FDC 2011 in force at the time of decision, disciplinary proceedings could not be opened. The appeal was dismissed and Fenerbahçe was ordered to bear arbitration costs. The case is significant for clarifying the temporal scope of Article 64 FDC and the application of lex mitior to enforcement-related disciplinary proceedings.

Procedural history of CAS 2012/A/2817

On 8 June 2011, CAS issued ordinary arbitration award CAS 2010/O/2276 ordering Roberto Carlos to pay Fenerbahçe €1,000,000 plus 5% annual interest, with arbitration costs borne by the player. On 20 July 2011, Fenerbahçe requested FIFA's Disciplinary Committee to open proceedings under Article 64 FDC 2009 for non-compliance. On 30 January 2012, FIFA informally indicated it could not enforce ordinary CAS awards. On 9 March 2012, the Disciplinary Committee formally declared the request inadmissible (Decision 120044 TUR ZH), holding it could only enforce CAS appeal decisions following a FIFA first-instance decision. The Decision was notified to Fenerbahçe on 7 May 2012. On 28 May 2012, Fenerbahçe filed a statement of appeal with CAS under Article R47 of the CAS Code, seeking to set aside the Decision and have the Disciplinary Committee ordered to commence disciplinary proceedings against Roberto Carlos. FIFA raised a lis pendens objection based on alleged Brazilian court proceedings, which the Panel dismissed. A hearing was held on 5 April 2013.

Key holdings in CAS 2012/A/2817

• Article 64 FDC 2009, by its plain wording referring simply to 'CAS' without qualification, covered CAS awards rendered in ordinary arbitration proceedings, not only appeal awards.
• The FDC 2011 amendment expressly limiting Article 64 to 'subsequent CAS appeal decisions' constituted a substantive change in scope, confirmed by FIFA Circular Letter No. 1270, not merely a codification of pre-existing practice.
• The lex mitior principle applies to the definition of a disciplinary infringement, not only to the measure of sanction; a subject cannot be sanctioned for an act that no longer constitutes an offence under a subsequently enacted more favourable rule.
• The lex mitior principle cannot be excluded by agreement of the parties, particularly where the defendant subject to sanction — here Roberto Carlos — gave no specific and express consent to its exclusion.
• A CAS appeal concerning only the competence of a FIFA body to open disciplinary proceedings, where no sanction was imposed, is not 'exclusively of a disciplinary nature' for the purposes of Article R65.1 of the CAS Code, and the losing appellant bears the arbitration costs.

How the CAS panel reasoned

The Panel began with Swiss law principles of statutory interpretation, requiring objective construction starting from the plain wording of the rule. Article 64 FDC 2009 referred to instructions from 'a body, a committee or an instance of FIFA or CAS' without distinguishing between ordinary and appeal proceedings; the Panel applied the maxim 'ubi lex voluit dixit, ubi tacuit noluit' to conclude that ordinary CAS awards were included. The Panel rejected FIFA's argument that its 'long-standing practice' of restricting enforcement to appeal awards constituted a customary interpretive gloss, noting FIFA could produce only two cases and those fell within the FDC 2011 period. The Panel also rejected the Disciplinary Committee's policy rationale — that FIFA bodies must participate as first instance to safeguard jurisprudence on FIFA regulations — as a reason of policy that justified the FDC 2011 amendment but did not override the FDC 2009 text. Having found the FDC 2009 covered ordinary awards, the Panel then applied the lex mitior principle: because the FDC 2011 removed ordinary CAS awards from scope, Roberto Carlos's continuing non-compliance was no longer a disciplinary offence. The Panel held lex mitior is a fundamental principle under Article 4 FDC 2011, Article 15(1) ICCPR, and Article 7 ECHR (citing Scoppola v. Italy No. 2), covering both the definition of the offence and the sanction, and could not be waived by party agreement without the defendant's express consent. The appeal was therefore dismissed on lex mitior grounds even though the Disciplinary Committee's original reasoning was wrong.

Why Fenerbahçe v. FIFA & Roberto Carlos matters in CAS jurisprudence

This award establishes that Article 64 FDC 2009 — by its plain wording — extended to CAS ordinary arbitration awards, not only appeal awards, thereby correcting the Disciplinary Committee's reasoning. More broadly, it confirms that the lex mitior principle applies in FIFA disciplinary proceedings to the definition of the infringement itself, not merely to the quantum of sanction, and cannot be excluded by party agreement without the defendant's express consent. The case also clarifies that a CAS appeal limited to the competence of a FIFA body to open disciplinary proceedings is not 'exclusively of a disciplinary nature' under Article R65.1 of the CAS Code, with cost consequences for the appellant.

Cases cited in this award

CAS 2010/O/2276 CAS 2006/A/1008 CAS 2009/A/1881 & CAS 2010/A/2141&2142 CAS 2004/A/594 CAS 2012/A/2473 CAS 94/128

Frequently asked questions about Fenerbahçe v. FIFA & Roberto Carlos

Did the Fenerbahçe v Roberto Carlos CAS case decide that FIFA must enforce ordinary CAS awards under Article 64 FDC?

The Panel held that Article 64 FDC 2009 did cover ordinary CAS awards by its plain wording, making the Disciplinary Committee's reasoning wrong. However, the appeal was ultimately dismissed because the lex mitior principle required application of the FDC 2011, which expressly limits enforcement to 'subsequent CAS appeal decisions,' meaning Roberto Carlos's non-compliance was no longer a disciplinary offence.

How did the lex mitior principle apply in the Fenerbahçe v Roberto Carlos CAS 2012/A/2817 award?

The Panel applied lex mitior because Roberto Carlos's failure to pay the €1,000,000 CAS award was a disciplinary infringement under FDC 2009 but ceased to be one under FDC 2011 (in force from 1 August 2011), which restricted Article 64 to CAS appeal decisions. The Panel held lex mitior covers the definition of the offence, not only the sanction, is grounded in Article 4 FDC 2011, Article 15(1) ICCPR and Article 7 ECHR, and could not be excluded by party agreement without the defendant's express consent.

What was the original CAS award against Roberto Carlos that Fenerbahçe was trying to enforce?

CAS award in case CAS 2010/O/2276, issued on 8 June 2011, ordered Roberto Carlos to pay Fenerbahçe €1,000,000 plus 5% annual interest per annum on each of ten monthly instalments of €100,000 from their respective due dates in 2010, with arbitration costs borne by the player and a CHF 5,000 contribution to Fenerbahçe's legal fees.

Why did CAS order Fenerbahçe to pay the arbitration costs in CAS 2012/A/2817 even though the Disciplinary Committee's reasoning was found to be wrong?

The Panel held that the dispute was not 'exclusively of a disciplinary nature' under Article R65.1 of the CAS Code because it concerned only the competence of a FIFA body to open proceedings, no sanction was imposed, and Fenerbahçe's underlying motivation was financial — enforcing the €1,000,000 payment award. Since Fenerbahçe was the losing party and the case was not purely disciplinary, it bore the full arbitration costs, though each party bore its own legal fees given that Fenerbahçe was correct on the FDC 2009 interpretation and FIFA's Decision reasoning was wrong.

Topics: Transfers, agents, TPO & sell-on clauses at CAS

Source: official award. This digest was generated by LexXi from the full award text and machine-verified against it — every figure, article and citation above appears in the source. It is an editorial summary, not legal advice. See how ElevenLex verification works.