Šį kartą jau Tarptautinis Sporto Arbirtažas patikrino FIFA teiginius dėl klubų teisinio vientisumo vertinimo juridinės įmonės bankroto atveju. Rezultate praktika yra patvirtinta, nors su kabliukais, kad iš principo reikalingi individualūs vertinimai.
CAS 2020/A/6941 Youness Bengelloun v. FIFA & PFC CSKA-Sofia
10 November 2021
2. Sporting succession of clubs in disciplinary cases
With regard to the merits of the case, the Panel had first to determine whether the Second Respondent was to be considered as the sporting successor of CSKA, the entity which had been the Appellant’s employer and the party ordered by the FIFA DRC Decision of 21 May 2015 to pay certain amounts to the Appellant.
The Panel found that sporting succession of clubs was to be decided on a case-by-case basis taking into account the circumstances of each individual case. It held that it can occur even in the absence of formal legal links between the two entities (such as the purchase of the former’s assets or federative rights) and, as such, had to be distinguished from legal succession and made subject to the test of sporting criteria only. In the view of the Panel, this reflected to a large extent the fact that, on the one hand, a club was a sporting entity identifiable by itself that, as a general rule, transcended the legal entities which operated it. Thus, the obligations acquired by any of the entities in charge of its administration in relation with its activity had to be respected.
On the other hand, the identity of a club was constituted by elements such as
its name, colours, fans, history, sporting achievements, shield, trophies, stadium, roster of players, historic figures, etc. which distinguished it from all the other clubs.[/color] Hence, the continuity and permanence over time of
the sports institution prevailed over the change of the entity that managed it.The Panel also held that the concept of sporting succession of clubs had to apply not only in cases regarding employment-related disputes decided on the basis of the FIFA Regulations on the Status and Transfer of Players (“RSTP”), but equally in cases concerning the application of Article 64 FDC, considering that Article 64 FDC sought precisely to ensure compliance with FIFA decisions on employment-related disputes decided on the basis of the FIFA RSTP.
In the instant case, the Panel noted that the Second Respondent had an almost identical name and the same emblem, colours and stadium as CSKA.
Moreover, the Second Respondent’s website mentioned the history, trophies and sporting achievements of CSKA, thereby creating, knowingly and with no doubt, an image of continuity to the eyes of the general public, namely that CSKA and the Second Respondent were one and the same club. Therefore, the Panel confirmed the Appealed Decision with respect to the sporting succession question.
Čia puikiai tinka tiek FBK Kaunų, tiek Dainavų situacijai įvertinti sakyčiau.
The Panel felt comfortable in reaching this conclusion due to the fact that in other FIFA decisions involving the Second Respondent regarding the matter of CSKA’s sporting succession, the common conclusion had been that “on the basis of the information and documentation at hand, there is no other alternative but to conclude that the new Club, PFC CSKA-Sofia,
appears to be the sporting successor of the original Debtor, PFC CSKA Sofia”.
https://www.tas-cas.org/fileadmin/user_upload/Bulletin_TAS-CAS_01-2022_.pdfNežinau kur tiksliai kelti tokį dalyką, bet radau įdomų teisinį precedentą apie kaip FIFA fiksuoja klubų teisinį vientisumą nacionalinės teisės kontekste (pavyzdys Estijoje):
@Makenzis nepatiks
11. The Estonian Football Association provided the Secretariat, on 6 May 2019, with its position regarding the allegations of the Creditor. The position of the EFA can be summarized as follows:
- Tartu Jalgpallikool Tammeka and the Debtor are not the same entity. The latter stopped participating in competitions organised by EFA on 2014 and was liquidated and disaffiliated from the EFA on March 2016.
- In Estonia, a legal entity is identified by its registry number. The Debtor’s code is 80078915 and the club was erased from the registry on 28 March 2016. On the other hand, the code of Tartu Jalgpallikool Tammeka is 80315611 and it is still registered at the present day. This proves that both clubs are two different legal entities.
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In light of all the above, and since in the member of the Committee’s view the identity of a club is constituted by elements such as its name, colours, logo, fans, history, roster of players, stadium, etc, regardless of the legal entity operating it, the member of the Committee deems that, on the basis of the information and documentation at his disposal, he has no other alternative but to conclude that Tartu Jalgpallikool Tammeka appears to be the successor of Tartu Jalgpalliklubi Tammeka, and, as such, is liable for the debts incurred by the latter – namely the one related to the decision passed by the Dispute Resolution Chamber on 26 November 2015 – and that therefore, Tartu Jalgpallikool Tammeka is found to have infringed article 64 of the 2017 FIFA Disciplinary Code
http://resources.fifa.com/image/upload/dc-180271-31-05-2019-tartu-jk-tammeka.pdf?cloudid=p82iluykszzpelh1polc
