The CONI’s College of Guarantee accepts SSC Napoli’s appeal and cancels the decision of the FIGC Federal Court
The last 22nd December the United Sections The College of Guarantee of Sport, chaired by President Franco Frattini, decided on the appeal with which SSC Napoli had requested the rejection of the decision of the FIGC National Court of Appeal, which had confirmed the decision of the Lega Serie A Sports Judge.
As already written in the previous articles of 15th November (click here to read it) and 8th December (click here to read it), SSC Napoli was defeated by a 0 – 3 score in favor of Juventus F.C. of the Juventus – Napoli match, not played on 4 October 2020, as well as the penalty of 1 point in the standings for the 2020/2021 Sporting Season.
The decision of the CONI’s College of Guarantee
On December 22, after filing an appeal against the decision of the Federal Court of Appeal, SSC Napoli finally saw its requests accepted.
The College of Guarantee of Sport, in fact, with the device of 22th December (click here to read it), annulled the decision of the Federal Court of Appeal, ordering the Serie A National Association and the FIGC to play the Juventus – Naples match and also returning the penalty point imposed on the Neapolitan company.
Two days ago the final provision was published on the CONI website, containing the reasons that the Board formulated in support of its decision.
According to the College of Guarantee, the assessments of the Sports Judge and the Federal Court of Appeal did not take into account the criterion of the hierarchy of sources, as SSC Napoli would have respected the rules set out in the Circular of the Ministry of Health no. 21463 of 18 June 2020, concerning “Methods of implementing the quarantine for close contacts in COVID-19 cases” and to which the FIGC Protocol of 28 September 2020 – in force at the time of the facts of the case – referred (click here to read it).
What does the Circular of the Ministry of Health provide?
This circular (click here to read it), in fact, requires that “the public health operator of the Department of Prevention with territorial jurisdiction” (in this case the Local Health Authorities of Naples), in the event that a professional player is positive, can, alternatively:
- arrange for the isolation of the player and the quarantine of team members who have had close contact with him (sixth paragraph).
- “provide that … the quarantine of close contacts may be followed, for the whole team group, by the execution of the test, at the expense of the sports clubs, for the search for viral RNA, on the day of the match scheduled, following the ascertainment of the confirmed case of a positive Covid-19 subject, in order to obtain the results of the last swab within 4 hours and allow access to the stadium and the dispute of the race only to subjects who tested negative for the molecular test” (seventh paragraph).
According to the College of Guarantee, therefore, the Local Health Autority of Naples 1 Center and Naples 2 North, having ascertained the positivity of the players Elmas and Zielinski, have chosen to adopt the first option, arranging – through the two notes of 3 October 2020 – the quarantine for the whole group of the first team of SSC Napoli.
These measures constitute, in fact, a superior source with respect to the federal norms contrasting with them and represent the factum principis – the cause of force majeure – which prevented SSC Napoli from fulfilling its performance (the departure for Turin and the dispute of the match).
The absence of “preordained conduct” by SSC Napoli
The Board concludes its arguments by fully fulfilling the conduct held by Naples in the days preceding October 4, which is considered to be fully respectful of the regulatory requirements prescribed by the Circular of the Ministry of Health of June 18.
The Sports Judge and the Federal Court of Appeal, on the other hand, had judged the behavior adopted by Napoli – before receiving the communication of 4 October from the Local Health Authority of Naples 2 North – aimed at pre–establishing an alibi for not playing the game against Juventus.
The College, on the other hand, believes that the factum principis should not be identified in the note issued by the Local Health Authority of Naples 2 North on 4 October 2020, but in the two previous notes of 3 October mentioned above, which would have prompted SSC Napoli to ask for further clarifications, to cancel the tampons scheduled for the following day and, finally, not to leave for Turin.
The Board of Last Resort, in fact, reminds that pursuant to the aforementioned Circular, the Department is obliged to provide “information and clear indications … on the precautionary measures to be implemented and any general information documentation on the SARS-CoV-2 infection, including mode of transmission, instructions on the measures to be taken in the event of the appearance of symptoms … “
It is undeniable that the sporting judicial process that has just ended has raised several questions on the clarity and legitimacy of the rules adopted by the FIGC, in relation to the legislative provisions and ministerial measures, of higher degrees than them.
The most important of all is the effective capacity of federal regulations to support the organization of the Italian football industry at the time of the global pandemic and to ensure the regularity of professional leagues.
The decision of the College of Guarantee, however, does not fill the gaps created by the rules of the FIGC, leaving many unresolved legal issues, including the effective jurisdiction to decide on the underlying theme of this dispute (the factum principis).
In the note that appeared on the CONI website last on 13 November (click here to read it) – the same College had specified that it would not have ruled on the existence of the force majeure on which the SSC Napoli’s appeal was based.
This declaration, according to art. 55, paragraph 2, of the NOIF, would in fact compete only with the Sports Judge in the first instance and with the Sporting Court of Appeal in the second and last instance.
(All rights reserved)