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Real Madrid’s Uphill Battle to Stay in the Copa del Rey Tournament

While Real Madrid beat Cádiz 3-1 in the first of a two-leg, fourth round tie on December 2, the winning club has been thrown out of the Copa del Rey for fielding an ineligible player.[i] Denis Cheryshev, the 24 year-old Russian winger for the Spanish giants, should have been suspended as a result of his participation last year in the domestic cup, when he accumulated 3 yellow cards in the fifth, sixth, and seventh rounds of the tournament while on loan with the club Villarreal.[ii] If a team fields an ineligible player, Article 76 of the RFEF[iii] Disciplinary Code automatically declares the winner to be their opponent, meaning that currently Cádiz is advancing to the fifth round of the Copa del Rey.[iv] Real Madrid intends to appeal the expulsion (they have 10 days from Friday’s decision to do so) based on an alleged lack of notice provided to the team and player regarding his sanction.

Real Madrid’s appeal will be based primarily on notice to the club and player, but could include a challenge of the accumulation rule as well. Article 40 of the RFEF Disciplinary Code discusses what constitutes proper notification of sanctions, which must be given within 10 days from the date of the incident. Notification of sanctions come from the RFEF legal department, must contain the full text of the sanction in all of its legalese glory (they can’t just say “hey this player is out next game”), and be sent to the relevant parties in some way that can allow proof of receipt.[v]

For the less concrete argument, Real Madrid could appeal the application of the accumulation rule; however, this argument is definitively weaker than the alleged lack of notice. Article 112.1 states that any player receiving three yellow cards in the Copa del Rey (in the same season) will be suspended for one game. The one exception involves resetting any cards received after the third round of the competition. Real Madrid may attempt to argue that, being in the fourth round of this year’s Copa del Rey, any accumulation (and resulting punishment) for Cheryshev should have reset. Article 112 only mentions resetting the accumulation after the third round (and between seasons). If a player gets a red card in the final match of the tournament (or even three yellows in the last three matches), they still face punishment the next season. This alone shows that any resetting of accumulated cards is already treated differently than the resulting suspension. Even if Real Madrid makes the argument that potential reset of sanctions is not addressed in the Disciplinary Code, it is likely a losing argument based on how sanctions are currently implemented.

The Appeal Will Come Down to Notice.

Real Madrid’s primary claim will arise from Article 41, claiming that the club and player were not properly notified of Cheryshev’s ensuing suspension from accumulation. The first problem with this argument is that Cheryshev did not play for Real Madrid at the time he earned his suspension; he was on loan at Villarreal. Madrid will likely argue that as the parent club, they were entitled to notice that the RFEF had implemented a sanction on a player. The RFEF has record of his loan, with it set to end after the 2014-15 season, Cheryshev returning to Real Madrid is a reasonable inference. Additionally, in a losing effort in a knockout stage, most would assume that the loaned player will not be playing again for that club in that competition the following year. Real Madrid’s argument is likely that the parent club of a loaned player is included in whatever people or entities are considered “interested parties” worthy of notification. I personally doubt that the governing body of 40+ clubs and thousands of players sends these (frequent) notices to anyone past the player’s actual current team. As Villarreal was Cheryshev’s club at the time, Real Madrid’s appeal will likely end with a declaration that any RFEF notification to Cheryshev and Villarreal was adequate under the RFEF Disciplinary Code.

The more pressing case would be if the RFEF did not give proper notice to Denis Cheryshev, although this point may be difficult to prove, and boil down to a “he said, he said” scenario. Yes, not participating in the first three rounds could put the competition, especially the previous year’s competition, out of sight and out of mind. But without being able to see the concrete evidence presented, which option is more likely: (1) a governing body screwing up a standard sanction procedure, when their public record was updated to show the infraction, or (2) a twenty four year-old not realizing he just got a very important piece of mail/email and discounting it? If the RFEF can demonstrate that this notice was provided to Cheryshev, this should be an open and shut case. If, however, the player can show that this notice was never given, then Real Madrid could have a legitimate appeal on their hands.

Villarreal is in a surprisingly strong position to influence the outcome here. While Real Madrid has said that the Villarreal made no mention of the sanction, I am not sure they have any requirement to do so. Any notice owed to Real Madrid would arise from the loan agreement between the clubs, not from the RFEF Disciplinary Code. The code only requires the RFEF give notice, especially since that must come from the governing body’s legal department. This tenet makes it impossible for Villarreal to provide the requisite notice to Real Madrid. Where Villarreal can make a real impact here is offering evidence/testimony to either back up the RFEF claim that notice was provided or to support Real Madrid in saying that the club, and stemming from that the player, were never told of the suspension.[vi]

What this case really boils down to (not legally but practically) is due diligence. In five to ten minutes of searching the RFEF website (only available in Spanish, while my Spanish is pretty rusty), I was easily able to navigate to the page showing Cheryshev’s “un partido de suspension” (one-game suspension). It is hard for me to believe that an American who casually follows La Liga can easily find this information, while one of the largest clubs in the world does not have some full-time employee checking for these issues for anyone that is joining the team (loaned player returning or a new transfer). While this may not be relevant, what is likely to happen is barring any significant evidence showing that notice was definitively not provided, Real Madrid can wave goodbye to this year’s Copa del Rey and focus on La Liga and the Champions League.

[i] The full resolution can be found here (in Spanish).

[ii] January 14, 2015 in the second leg vs. Real Sociedad; January 29, 2015 in the second leg vs. Getafe, and March 4th in the semifinal second leg vs. Barcelona.

[iii] The country’s governing body in the sport, Real Federación Española de Fútbol (Royal Spanish Football Federation).

[iv] Real Madrid has also been fined the minimum 6,001 (six thousand and one) Euros per Article 76.

[v] Art. 40.2 loosely translated and paraphrased.

[vi] Thinking about it, if any notice of suspension fell through the crack, it could occur to the losing team in an elimination competition. With the responsible parties potentially focused on the clubs still in the tournament, maybe they did forget.

About Sean Dotson

Sean currently works in the Athletics Compliance Office at Appalachian State University. He graduated from Tulane University School of Law with a certificate in Sports Law in 2012, and graduated from Tulane University with a B.A. in History in 2009. Sean has previously worked with multiple sports agents, and as a law clerk in workers’ compensation court.

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