Both the CAS jurisprudence and the Swiss Federal Tribunal have defined the
nature of the proceedings contemplated by Article 64 FDC to be mainly
disciplinary. It is the seriousness of the breach of the respective obligation
which decides the extent of the disciplinary fine.
Foreign insolvency proceedings are not irrelevant in the context of enforcement proceedings according to Article 64 FDC. Article 107 (b) FDC, in principle, assumes the recognition of foreign insolvency proceedings. It is within the autonomy of FIFA to recognize or take into account foreign insolvency proceedings independently of whether or not a special recognition procedure has been initiated before Swiss courts in respect of foreign insolvency decisions (Article 166 et seq. of the Swiss Federal Code on Private International Law - PILA).
Article 107 (b) FDC does not totally forbid enforcement proceedings according to Article 64 FDC in case insolvency proceedings have been initiated. Instead, Article 107 (b) FDC provides that the closing of the disciplinary proceedings is at the discretion of the FIFA DC.
Preferential debts are under national law and as a general rule, pursued against the bankrupt’s estate because they are not subject to the principle of equal treatment of creditors.Facts/Procedure
On 14 February 2011, the Spanish football club Real Zaragoza S.A.D. (RZ) entered into an employment contract with the player D. (the Player) .On 7 June 2011, the Appellant Club filed a claim against RZ for the payment of the amount for training compensation relating to the transfer of the Player to RZ with FIFA Dispute Resolution Chamber.
With judgment dated 13 June 2011, the Commercial Court of Zaragoza declared RZ to be in voluntary insolvency proceedings and, as a consequence, opened the insolvency proceedings over RZ’s assets.
On 24 August 2011, FIFA informed the Appellant Club about the decision issued by the Zaragoza Court on 13 June 2011. Furthermore, FIFA advised the Appellant Club that it had, in principle, no authority to interfere with the insolvency/administration procedure - including voluntary administration procedure - over the estate of a club and that, as...
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