The legal analysis of whether (or not) C.A. Boca Juniors could have achieved an administrative win in the final of the 2018 Libertadores Cup.
The legal analysis of whether (or not) C.A. Boca Juniors could have achieved an administrative win in the final of the 2018 Libertadores Cup.
[Buenos Aires, Argentina.] Boca vs. River, River vs. Boca. Two antagonistic ways of living. After a series of regrettable events, the ball got stained. As a consequence, an exiled final and a cup that, after an odyssey, River added to its history. And yet… Can you imagine that, after all, the champion would have been decided on the desktop?
Could there be legal reasons to decide administratively in favor of Boca? In this second issue of Fútbol de Papel we analyse the legal course of the facts applying Sports Law.
In order to do this, and from the general to the specific, the aim is to establish first and foremost the legal nature of the governing bodies of international football. After that, we will determine the active legitimacy of the matter at hand. Subsequently, we will indicate which law is applicable to give answer to this event and which articles were decisive to be able to answer the question posed.
Could the incidents that took place in the River-Boca Preliminary, have given way to an administrative win for the Xeneize team, in the final of the Copa Libertadores 2018?
The initial whistle sounds. Where we go.
- Nature of the governing bodies of international football.
⚽ What is the highest governing body in International Football? The Fédération International de Football Association, better known as FIFA. Its legal nature corresponds to a non-profit civil association under private law, which is registered in the commercial register of the canton of Zurich in accordance with articles 60 et seq. of the Swiss Civil Code [1].
⚽ And… Why Switzerland? Because of historical, geographical and political elements. The “famous” impartiality, the central location of the Swiss country and its legal (and fiscal, why not say it) advantages are generally pointed out as the most prominent reasons.
⚽ Art. 22 of the FIFA Statutes defines Confederations as the union of the different Member Federations, i.e. those football federations which are recognised and constituted according to FIFA guidelines and belong to the same continent. They are recognized:
- South American Football Confederation: CONMEBOL;
- Asian Football Confederation: AFC;
- Union of European Football Associations: UEFA;
- African Football Confederation: CAF;
- Football Confederation of North and Central America and the Caribbean: CONCACAF;
- Oceania Football Confederation: OFC.
⚽ CONMEBOL, in the same way, is defined as a non-profit civil association under private law, founded on 9 July 1916, and constituted by the different national football associations of the South American continent, which have the status of members of FIFA.
In addition to the provisions of its statutes, it is governed by civil law and the Paraguayan Sports Law. It is of restricted capacity (a concept of Paraguayan law defined in articles 91(g); 104 and 118 of its Civil Code) and its permanent headquarters are located in the city of Luque (Gran Asunción), in the Republic of Paraguay [2].
⚽ Why is it located in Paraguay? Until 1997, its headquarters were in Lima (Peru). Although there are no official reasons for this change, it should be noted that the Congress of the Paraguayan Nation passed a law endowing the Confederation building with a rank similar to that of an embassy, providing it with legal immunity. This condition, after several scandals, was revoked in June 2015 by the same Congress [3], returning CONMEBOL to legal normality.
1.1 Active legitimation: Who should know and decide what happened?
In view of the nature of FIFA and CONMEBOL, we can see that the latter is clearly recognised by the former as the Confederation in charge of directing football matters specifically those raised into the South American continent.
Article 3 of CONMEBOL’s Statutes confirms quotes:
1.“FIFA recognises that CONMEBOL is the only Confederation constituted by its Member Associations in South America. Consequently, CONMEBOL is exclusively authorised by FIFA to direct and control football in the region (Article 22 FIFA Statutes).
2. CONMEBOL shall comply with the obligations set forth in the FIFA Statutes and shall exercise the rights recognized to it as a Confederation therein.
3. The FIFA Council may delegate other duties or powers to CONMEBOL, for which purpose the Confederation may enter into such agreements as it deems appropriate with FIFA.
At the end of this first point, we have compiled the main ideas:
⚽ FIFA’s dominant position in the hierarchy of international football regulations. All this, from its status as a civil association dedicated to promoting, organizing and directing football worldwide, without profit motive. To this end, it is recognized as a legal entity, which gives the institution the power to acquire rights and incur obligations.
⚽ ⚽ FIFA, from its position of command, delegates, legitimates and recognizes CONMEBOL as the Confederation in charge of directing, ordering and governing football in the South American continent specifically. This institution, no stranger to controversy, was endowed with diplomatic immunity from 1998 to 2015.
⚽ ⚽ ⚽ The functioning of both, their bodies and their activities is determined by their own Statutes (they must be in tune, as CONMEBOL’s own statutes must respect those of its highest hierarchical body, FIFA), although it is an indispensable condition that their democratic nature be guaranteed.
In view of the above, we now come to determine the…
2. Applicable law
As stated above, CONMEBOL, like any civil association, should be governed by a Statute.
It is in them, specifically in its sixteenth chapter, where the Judicial Organs of the Institution are described. Article 58, in particular, talks about Jurisdiction and Disciplinary Competence:
1.”Unsportsmanlike behaviour and violations or infringements of the Laws of the Game and the Statutes, regulations, decisions, orders and instructions of CONMEBOL and FIFA (B), which shall be regulated in the CONMEBOL Ethical Regulations and Disciplinary Regulations (C), shall be disciplined (A).
2. The judicial bodies of CONMEBOL may impose the sanctions described in this Statute and in the CONMEBOL Ethical Regulations and Disciplinary Regulations on Member Associations, clubs (D), officials, coaches, players, intermediaries and match agents.”.
We identify here:
⚽ The power to sanction (A), and the factual circumstances that enable it (B)
⚽ ⚽ The applicable law, being that which is set forth in the CONMEBOL Code of Ethics and Disciplinary Regulations (C).
⚽ ⚽ ⚽ The passive subjects to whom it will be applicable, recognizing among others, and to the effects of what this article interests, the Clubs (D).
It seems that with it, we have constructed the legal scheme, right? So let’s move on to what is really interesting…
3. The legal analysis of what happened in the RIVER-BOCA and the background.
Briefly, we recall the factual assumption with precise data to facilitate the subsequent legal analysis:
The second leg of the 2018 Libertadores Cup final, between River Plate and Boca Juniors, was suspended. The reason: the series of violent events that took place outside the Monumental Stadium in Buenos Aires, where supposed River fans threw projectiles at the bus that was transporting Boca to the stadium. The match was two hours away. The events took place in Avenida Libertador and Lidoro Quinteros, about to cross a perimeter fence, that is, 5 blocks from the stadium.
The journalistic reports inform of very little police presence in the place, insufficient to contain a high number of people gathered with hostile attitude, in front of one of the points where the Xeneize delegation was going to pass. The liberated zone was the consequence between the ambush of the vandals and the absence of porteño security at a key point of the route for the bus that transported players, coaches and directors of Boca Juniors, which according to police reports “suffered attacks with tear gas and stones [4].
As a consequence of these attacks, apart from the material damage created in the bus, the footballers Pablo Pérez, Carlos Tévez, Cristian Espinoza and Mauro Zárate were especially affected, even having to be visited by specialist doctors. It is precise that they suffered of difficulties for: to see (Pablo Perez suffered a slight ocular lesion) to breathe and strong itching in the throat.
Faced with the facts, the Head of Government, Horacio Rodriguez Larreta admitted the serious failure in the security operation. State responsibility was thus exposed.
Having seen the official facts, let’s see the legal arguments.
3.1 Determining Articles in the CONMEBOL Disciplinary Regime Code;
“ARTICLE 2 – MATERIAL SCOPE OF APPLICATION
The application of these rules extends to all matches and competitions organized by CONMEBOL (…)
ARTICLE 3 – SUBJECTIVE SCOPE OF APPLICATION
1. They are subject to the provisions of this Regulation:
(…)
b) Its members, especially clubs.
ARTICLE 8 – STRICT LIABILITY OF MEMBER CLUBS AND ASSOCIATIONS
1. Member Associations and clubs are responsible for the behaviour of their players, officials, members, attending public, fans as well as any other person who exercises or could exercise on their behalf any function on the occasion of the preparation, organisation or holding of a football match, whether official or friendly.
2. Member Associations and clubs are responsible for security and order both inside and in the vicinity of the stadium, before, during and after the match of which they are hosts or organisers. This responsibility extends to all incidents of any nature that may occur, thus being exposed to the imposition of disciplinary sanctions and compliance with orders and instructions that may be adopted by judicial bodies.
ARTICLE 18 – SANCTIONS THAT MAY BE IMPOSED ON MEMBER ASSOCIATIONS AND CLUBS
1. The following sanctions may be imposed, individually or jointly for the same infringement, on national associations and clubs, in accordance with Article 64 of the CONMEBOL Constitution:
(a) Warning.
b) Reprimand, or warning.
c) Economic fine, which shall never be less than ONE HUNDRED AMERICAN DOLLARS (USD 100) or more than FOUR HUNDRED AMERICAN DOLLARS (USD 400,000).
d) Cancellation of the result of a match.
e) Repetition of a match.
f) Deduction of points.
g) Determination of the result of a match.
h) Obligation to play a match in closed doors.
i) Total or partial closure of the stadium.
j) Prohibition to play a match in a certain stadium.
k) Obligation to play a match in a third country.
l) Disqualification from ongoing competitions and/or exclusion from future competitions.
m) Withdrawal of a title or prize.
n) Withdrawal of license.
o) Prohibition of sale and/or purchase of tickets.
2. The judicial bodies may impose one or more of the sanctions set forth in the preceding paragraph for the commission of the same infraction.
The decision of the CONMEBOL Discipline Tribunal
The CONMEBOL Disciplinary Tribunal,
RESOLVES
1. TO IMPOSE CLUB ATLÉTICO RIVER PLATE with a sanction consisting of playing its next 2 (two) home matches in official competitions organized by CONMEBOL behind closed doors. This sanction will become effective in 2019.
(…)
2. IMPOSE CLUB ATLÉTICO RIVER PLATE with a fine of USD 400,000 (FOUR HUNDRED THOUSAND US DOLLARS). The amount of this fine will be automatically debited from the amount to be received by the CLUB ATLÉTICO RIVER PLATE of CONMEBOL for television or sponsorship rights. (…)
3.2 Relevant precedents.
⚽) Perhaps the most remembered and named is the one between the same clubs, in 2015 when in the Round of 16 of the Copa Libertadores a Boca fan attacked the players in the dressing room tunnel in the incident popularly known as the “pepper gas attack“.
On this occasion, CONMEBOL understood that, before an episode occurred inside the stadium, during the game, with a drone and a fan who knew the facilities, Boca’s responsibility/negligence was very marked and applied the maximum sanction of those established in article 18.
Other factors to emphasize, and that distinguish from the recent event:
- Marcelo Gallardo’s painting was the winner of the first leg 1-0.
- The attack on the visiting team took place inside the ‘Xeneize’ stadium.
- Those affected by pepper gas in River Plate were: Ponzio, Kranevitter, Funes Mori and Vangioni.
- The Conmebol decreed the match in favour of River Plate and Boca Juniors were eliminated from the Copa Libertadores in the Round of 16.
⚽ ⚽) FLAMENGO – INDEPENDIENTE:
On 13 December 2017, Independiente drew 1-1 with Flamengo in Rio de Janeiro and won the Copa Sudamericana thanks to a 2-1 win in Avellaneda the previous week. Before the match began, the Argentinian side suffered an attack similar to that suffered by Boca Juniors in the vicinity of River Plate’s Monumental Stadium.
During the Argentinian team’s trip to Maracana for the match, Independiente’s goalkeeper was attacked with stones outside the safety ring.
The rapid intervention of the Brazilian police dispersed the fans of Flamengo. The final result was two broken glasses, without any member of the delegation suffering injuries due to the throwing of stones and objects. Everything was recorded by recordings, presented at the time as evidence.
On that occasion the match was played without inconvenience and without postponement and on January 24 Conmebol issued the sanction for Flamengo: 300 thousand dollars fine and a punishment of two dates without public for matches corresponding to contests governed by the South American Confederation [5].
⚽ ⚽ ⚽ ) This year and along the same lines, the Disciplinary Tribunal of CONMEBOL fined 45,000 dollars to Temuco, for the attacks on the San Lorenzo bus before the return match for Copa Sudamericana. The Argentine team was able to count on all its players. The match was played as scheduled.
CONCLUSIONS
We have reached the final minutes of the meeting, and the use of the VAR, in such a complex case, seems necessary:
I. On the suitability of the sanction:
First of all, we understand that the disposition of this matter on the desk was indispensable and of an obligatory nature.
The applicable articles are clear on this point. The highest monetary fine was applied, and the stadium closure, following the trend of the latest decisions. (Independent-Flemish the one with the greatest similarity).
Having said that, there are several unique elements in the case, which generate the doubt before the greater severity of the applicable sanction:
Determine the degree of responsibility that corresponds to C.A. River:
As stated above, art. 8.2 states:
“Member Associations and clubs are responsible for security and order both inside and in the vicinity of the stadium, before, during and after the match of which they are hosts or organisers. This responsibility extends to all incidents of any nature that may occur (…)”.
⚽ Is it understood that in the vicinity of the stadium, a security point 5 blocks from the stadium?
⚽ What is the temporal conception of party and its scope, both earlier and later?
⚽ To what extent is the admission by the Head of Government Horacio Rodriguez Larreta of the serious failure in the operation both relevant and exonerating?
⚽ The serious indisposition (since it did not allow them to play) as a consequence of the attack on the part of some soccer players of Boca, does not make it closer to the incident occurred in 2015 between both clubs?
Perhaps one of the divergent points from the past direct antecedent, can revolve around River’s direct responsibility, and determine that its responsibility is less because it is an aggression outside the stadium, where the main control is the responsibility of the police operation. And therefore, the lesser the responsibility, the lesser the sanction.
However, all these elements cannot disqualify an exemplary sanction if we take into account the altercations that take place every weekend in Argentinean stadiums, and therefore, in South American football, where chaos and the state of exception in stadiums, has been assumed as the general norm. Not only in the attacks, but also in the organization, in the lack of security and control of access to the stadium, and in the free will of the so-called Barras bravas, the most radical sectors of the South American fans.
Civilized fans, and the protagonists of this game, the professionals who dedicate themselves to sport [PERSONS at the end of the day, in case someone forgot] saw their physical integrity endangered by the mere fact of going to exercise their profession, representing an institution.
Few professions contemplate that extra danger, and of course, a footballer, outside the stadium, does not assume it voluntarily. Without a doubt, in view of the facts, the players were left unprotected, to the detriment of other types of interests. And we must remember that without them, this spectacle does not work any more.
To exempt any club from its institutional burden in relation to the Hooligans and their resources, is to cover one’s eyes and ears and hum the anthem, to feel better. Beyond that punctually, the Head of Government assumed a failure in the operation, these facts do not do but reflect an endemic evil of the South American soccer to which with this tendency, one does not guess end.
At a juncture such as the one that occurred, being the end of the finals, a transcendent and exemplary sanction, which is seen not to be forgotten, supported and founded by the weight of the applicable law, would have been desirable and a hard blow for the violence and a message to the world that these facts do not come for free.
2. On the weight of Sports Law, above economic interests:
And unfortunately this is the message that has been sent. Not only that it is free, but that it can generate more wealth and greater viability.
The false virility that “matches are won and lost on the field” ends when the conditions to compete are not given or when football, sadly remains in the background.
The rules exist, and these must be applied as required by the fundamental pillars of legal practice. It is not about believing one or the other. It is a question of applying the laws on a concrete fact, using the evidence provided, from an objective prism and free of any interference that might hinder the judging criterion and independence.
It is true that Boca, could have presented an appeal, and raise the cause to TAS as well reflect the Statutes of CONMEBOL, and yet, to comply with the provisions of the Law, would have only dug his own grave as a mockery and scorn before the world of sport. Paradoxes of our society.
If the Law of Sport, as science and practice, wants to be considered as an active element in the world of Professional Sport, must respect itself and be respected, above any economic interest. There is no other way.
We understand that there were more than evident reasons to suspend the encounter, because an attack was perpetrated due to the security failure, responsibility that the rules attribute to the local team, which caused injuries among the protagonists of the show, distorting the competition, in a scenario of special gravity, relevance and transcendence. Nothing works like the proverb in these cases: “Faced with extraordinary situations, extraordinary measures.”
This situation, perhaps unpopular, would have led C.A. BOCA JUNIORS to be proclaimed champion on the desk, and if this has not happened, it is because other more powerful interests determined it.
Finally, for all football lovers, this reflection on the part of the President of the Argentine Supreme Court Carlos Rosenkrantz is valid [6]:
” When one decides a difficult case, one has to do so by looking only at the facts of the case and the applicable rules. Elizondo threw Zidane out of the 2006 World Cup because he had head-butted his opponent. It didn’t matter to him that he was France’s captain, neither his last game, nor the World Cup final. A judge should do the same.”
Who writes this, does not find better simile than the one exposed to express the line of opinion of Futbol de Papel.
END.
PS: From Futbol de Papel we wish you happy holidays, a good start to the year 2019 and that in this approaching year 2019, from these lines, we continue divulging and vindicating the place that corresponds to Sports Law.
Cheers and good luck!