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August 6, 2008
Schalke win case against FIFA and set conditions for releasing Rafinha
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Schalke won a victory in front of the Court of Arbitration for Sport (CAS) on Wednesday. In the action brought by the Royal Blues along with Werder Bremen and Barcelona CAS ruled there was no obligation for clubs to release players for Olympic football tournaments.


It is now therefore up to Schalke to decide whether Rafinha can play in Beijing. "We are pleased that CAS has confirmed our legal interpretation", said Schalke general manager Andreas Müller. "It is laid down quite clearly in the FIFA Statutes. Unfortunately an attempt was made in statements by various FIFA officials, and in official circular letters and alleged resolutions by the FIFA Emergency Committee, to overturn these provisions and create new law.


For us it was also a case of defending ourselves against this arbitrariness." Nevertheless the ruling has not led to rejoicing at the club. "We don't feel we're the big winners because an impossible situation has arisen as a result of the delay. Five minutes before the Olympic football tournament kicks off we now have to decide whether to recall the player or not", said Müller, who believes Rafinha is in a difficult position, too. "He had to assume we were obliged to release him, not least because of the course taken by FIFA, and he has also been put under enormous moral pressure by the Brazilian Football Association CBF. Olympic coach Carlos Dunga is also in charge of the national team, for whom Rafinha would like to play in future."


According to Müller the current situation would not have arisen had the interpretation of the legal position held by Schalke and Werder Bremen, as laid down in the FIFA Statutes, been unambiguously confirmed at an early stage. Not until today's ruling by CAS was clarity obtained. Having considered all the circumstances and consulted with head coach Fred Rutten, Schalke officials have reached the following decision: "We will release Rafinha to play at the Olympic Games if the Brazilian Football Association quickly create the conditions for his involvement", said Müller. This includes providing evidence of the relevant insurance cover for the player - e.g. for the event of an injury.


Schalke have since faxed this offer to the CBF via lawyer Theo Paeffgen, who also represented the Bundesliga clubs in the CAS proceedings. "This decision is in line with FIFA's appeal to allow the player to take part in the Olympics. We now expect the world governing body to support us in our talks with the CBF, particularly as what we are demanding is precisely what FIFA wishes to set down in its regulations in this matter", emphasised Müller.


The decision wasn't an easy one for the Royal Blues. "Not only do we have to come through the opening fixtures in the Bundesliga, we also have an extremely tough draw in the Champions League qualifying round in the shape of Atletico Madrid. We could have done with our strongest squad for these matches", he continued. "We firmly believe, however, that unfortunately there is absolutely no point in bringing Rafinha back one day before our opening game. All the frustration and the huge disappointment he would feel, coupled with the exertions of travelling, would not in our opinion have put him in a position to play to the best of his ability."


Müller concluded by stressing that "our decision would have been different if the legal position had been clarified earlier. In that case we wouldn't have let Rafinha go under any circumstances. FIFA and the CBF were aware of the situation months ago. I believe the matter was deliberately delayed until just before the Olympics to put the clubs in an awkward position."


[FC Schalke 04 e.V. Press Release August 6, 2008]


FC Gelsenkirchen-Schalke 04 e.V. and Werder Bremen GmbH & Co. KG aA in this dispute with FIFA have been advised and represented before the FIFA Players' Status Committee and the Court of Arbitration for Sport (CAS) by Paeffgen Rechtsanwaltsgesellschaft mbH, Bonn. Theo Paeffgen, Rechtsanwalt and Solicitor, led the team, supported by Rechtsanwalt Christian Eustermann.

© 2002-2018 Paeffgen Rechtsanwaltsgesellschaft mbH
Last modified January 11, 2018