Court recognizes FIFA’s bad faith in the case

Heine Allegmane, the inventor of the spray for delimiting barriers in football, won a victory against FIFA in the Court of Justice of the State of Rio de Janeiro yesterday (Oct. 27). By unanimous vote, the 14th Civil Division of the Court of Appeals upheld the appeal filed by SPUNI, Allemagne’s company, ordering FIFA to pay damages due to the unauthorized use of the spray in football matches.

The indemnity amount is yet to be defined later in the procedure, but a part of the amount due is estimated, in the 2017 litigation piece, at more than BRL 50 million.

Yesterday, the Court also recognized FIFA’s bad faith arising from the lack of fairness in the negotiations with the inventor. FIFA acted in a contradictory and trust-violating manner, abusing SPUNI’s and the inventor’s goodwill by using the spray free of charge, taking advantage of the company’s know-how for training and implementing the equipment, while at the same time hiding the manufacturer’s brand.

Although FIFA may still appeal against the conviction, the facts are no longer up for discussion before Brazilian Courts.

The victory of the inventor of the spray before Brazilian Courts may have an impact on many jurisdictions when it comes to the right to claim for damages due to possible patent violations and, yet, the infringement of ethical and compliance rules. Heine Allemagne’s company obtained patent protection in other 43 countries besides Brazil.

The Geneva-based FIFA Ethics Committee launched an official investigation in 2020 to look into possible ethical and legal misconducts arising from using off-patent sprays in official competitions; at the request of Heine Allemagne’s lawyers. The investigation was closed after FIFA obtained a victory at the trial court; a judgment which has now been overturned by the Court of Justice. Reopening this investigation will be one of the international fronts to be analyzed by the inventor’s lawyers.

UNDERSTAND THE CASE.

The barrier spray system consists of an aerosol for marking the playing field with a volatile foam that disappears in a matter of seconds; something which has substantially changed football. Compliance with the distance rule for fouls generated dynamism, more time with the ball rolling, and more goals. Spuni obtained the product’s patent in 44 countries.

Heine Allemagne, the Brazilian inventor who owns Spuni, advised FIFA on implementing the resource, which became part of the rules of the game established by FIFA/IFAB. The spray was used during the World Cups in Brazil (2014) and Russia (2018), besides many other competitions held or overseen by FIFA. However, Spuni and the inventor were never properly recognized or rewarded — a situation that violates a fundamental guarantee and constitutes an illegal practice in Brazil and many other jurisdictions.

The company that owns the rights filed a lawsuit in 2017 requesting, in a preliminary manner, the imposition of a fine for the unauthorized use of the spray. The product was no longer used in some championships whereas, in others, the decision was simply not observed. The action was filed with the State Court of Rio de Janeiro. Spuni faced two setbacks during the proceedings: the trial court denied the claim for damages, and the Superior Court of Justice understood that it would only be possible to assess, before the Brazilian Courts, the damages caused to Spuni in Brazil.

Yesterday’s (Oct. 27) unanimous decision by the 14th Civil Division of the Court of Justice of the State of Rio de Janeiro reinstitutes justice by acknowledging the abusive acts of FIFA and its duty to pay for the damages caused. Attorney Gustavo Kloh spoke on behalf of Spuni.

Case no. 0314313-89.2017.8.19.0001.

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