On August 27, 2020, the club Envigado Fútbol Club S.A. (“Envigado”) filed a lawsuit against Azul & Blanco Millonarios F.C. S.A. (“Millonarios”) before the Players' Statute Commission of the Major Division of Colombian Soccer (“CEJ Dimayor”), for the alleged breach of the sports agreement for the loan with mandatory purchase option of the player Jefferson Martínez, entered into between the parties.
Through Resolution No. 002 of February 27, 2023, the Dimayor LSA rejected the claims requested by Envigado, concluding that Millonarios had not breached the sports agreement signed between the parties. Although the Resolution allowed the parties to file an appeal for reconsideration before the same Dimayor LSA and an appeal to the Players' Statute Commission of the Colombian Football Federation (“CEJ FCF”), none of the parties did so.
However, Envigado decided to appeal directly to the Court of Arbitration for Sport (“CAS” for its French acronym), alleging exceptional circumstances in the case, arguing lack of guarantees, impartiality and due process violations. Consequently, he considered it necessary to take his appeal directly to CAS.
Millonarios' defense submitted to the CAS Arbitral Formation, in this proceeding, the provisions of Article R47 of the CAS Code of Arbitration for Sport, which determines that in order for an appeal against the decision of a federation, association or other sports entity to be filed before the CAS, a series of cumulative requirements must be fulfilled: (i) the statutes or regulations of such sports entity so provide, or that the parties have agreed to a specific arbitration agreement, (ii) that a federation, association or other sports entity has issued a decision, and (iii) that the appealing party has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of such sports entity.
Based on the foregoing, Envigado failed to comply with the third requirement set forth in Article R47 of the CAS Code of Arbitration for Sport, by not filing an appeal for reconsideration before the Dimayor LSA or, in the alternative, an appeal before the FCF LSA, in accordance with the terms of Articles 40 and 43 of the FCF Player's Statute.
This analysis was confirmed by the CAS Arbitral Formation, in CAS Award 2023/A/9504 of January 15, 2024, by which it settled the dispute between the aforementioned clubs. In the decision, the Tribunal concluded that Envigado failed to prove the existence of an exception that would allow direct access to CAS on appeal, without first having exhausted the remedies in the Colombian federation. Likewise, the Arbitral Formation determined that Envigado failed to demonstrate at any time that the Colombian federative appeal system lacks adequate guarantees in terms of the principles of impartiality and due process. Furthermore, the decision mentions that no objective reason was found that could generate doubts about the effectiveness of the system in our country, nor was it evidenced that the jurisdictional bodies had the intention of denying the procedure or hindering it.
As a consequence of the foregoing, the appeal filed by Envigado was declared inadmissible, pursuant to the provisions of article R47 of the CAS Code of Arbitration for Sport, and, to that extent, the CAS lacked jurisdiction to hear this appeal.
