FC Schalke 04 v. Confederação Brasileira de Futebol (CBF) [Rafinha and the Beijing 2008 Olympic Games] No. 4A_62/2009 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ A finding of fact which is manifestly inaccurate or contrary to the

record is not per se sufficient in order for an award made in an

international arbitration to be set aside (confirmation of previous

decisions).

■ In order to have the award set aside based on such a ground, the

petitioner must show in which respect an inadvertent mistake by the

arbitrators operated so as to deprive it of its right to present and

prove its case in relation to a point which was relevant in the

arbitration (confirmation of previous decisions).

Summary of the Decision

Confederação Brasileira de Futebol (CBF) informed the German

Football Association that Marcio Rafael Ferreira de Souza, a player

known as “Rafinha” who played for the German club FC Schalke 04, had

been selected by the national team of Brazil to participate in the Beijing

Olympic Games. Accordingly, CBF requested the German national

association to instruct FC Schalke 04 to release the player for that

occasion. FC Schalke 04 took the view that it was not under a duty to

make Rafinha available under the applicable FIFA Regulations. The

player eventually left Germany in order to join the Brazilian team in

Beijing.

FC Schalke 04 and other football associations brought arbitration

proceedings before the Court of Arbitration for Sport (CAS) in relation

to certain players that were to be released according to FIFA. In its

award, the CAS panel considered inter alia that FC Schalke 04 had no

legal duty to release Rafinha for the Olympic Games in Beijing.

Further to that award, FC Schalke 04 brought an action against CBF

before the FIFA Players’ Status Committee requesting in essence that

CBF be ordered not to engage Rafinha either for the preparation trainings

or for the Olympic football tournament and to let the player travel back

to FC Schalke 04 forthwith. The German club also made a claim for

damages. However, FIFA informed FC Schalke 04 that the Head of

Legal Affairs and the Head of Players’ Status were not in a position to

intervene in this matter.