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Thursday, March 28, 2024

Baker, Corporate Defence defend Neymar in its transfer trial

Baker McKenzie Criminal Litigation team, along with Corporate Defence, is defending Neymar in its transfer trial

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Neymar´s defence is being conducted by Baker McKenzie Criminal Litigation area, with partner María Massó representing the player, partner Jesús Santos representing his father and team manager Alicia Franch representing his mother.

The defence of the company´s legal entity is being carried out jointly with Carlos Gómez-Jara, founding partner of Corporate Defence.

According to the law firm:

“The Spanish courts do not have jurisdiction to prosecute the Neymar family and their company N&N, as the acts in question were committed by Brazilian nationals in Brazil. committed by Brazilian nationals in Brazil (i.e. outside Spanish territory). Moreover, the crime for which they are accused is not punishable in Brazil.

The crime of corruption between private individuals, the only one for which the Neymar family and their company N&N are accused, has its logic in the competition for products and services between companies. It does not make sense to apply it in the transfer market, where the rules of free competition do not operate, as the transfer from one club to another depends on the free will of the player. The player is not a service or a commodity. He is a person of his own free will.

In 2011, Santos C.F. granted Neymar Jr. a written authorisation to negotiate and finalise with other clubs, allowing him to plan his professional future in Europe after the end of his contract with Santos C.F. FIFA has stated that Neymar Jr. did not breach any FIFA rules in relation to the facts that are the subject of the prosecution and therefore the transaction has no objection from FIFA.

The €40 million paid by F.C. Barcelona to Neymar Jr. corresponds to a transfer fee which is legal and customary in the football market. As a transfer bonus, for which taxes have been paid in Spain and Brazil, it is clear that it cannot constitute a gift or payment of money.

There was also no breach of contractual obligations towards DIS. The contract with DIS does not foresee a duty of Neymar to sign for a football club during the term of the contract with Santos FC or to refrain from negotiating the player’s professional future by the time he had acquired free agent status. Any such claim by DIS would be contrary to the most elementary rights of any worker. DIS’s contract with Santos contains two clauses expressly declared by FIFA to be contrary to the law, as they allowed DIS to interfere in the employment relationship, which is strictly forbidden. These two clauses are identical in content to the clauses contained in the Neymar, which shows that the latter clauses are abusive.”

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