Wednesday, 25 April 2012

Messi's mom wins image case in Gibraltar

GIBRALTAR (Panorama) The image rights of international football star Lionel Messi were at the centre of a case in the Gibraltar Supreme Court, where Chief Justice Anthony Dudley, ruled yesterday that Lionel's mother, Mrs Messi, was the absolute and beneficial owner of 25,100 shares in Sport Consultants Ltd which is incorporated in Belize. A former Argentinian footballer and now a FIFA accredited agent Mr Schinocca obtained by fraudument misrepresentation/deception Mrs Messi's signature in the transfer documents, according to the ruling. Three companies are listed as applicants: Sovereign Trust (Gibraltar) Limited ("Sovereign Gibraltar")which is a company incorporated in Gibraltar and which carries on business as a provider of corporate services. Victoria Investments Limited ("Victoria"), a company incorporated in Gibraltar and Lima Investments Limited ("Lima"), a company incorporated in England and Wales which are under common ownership with Sovereign Gibraltar and used by it to provide nominee shareholders.>>>
The respondents were Celia Maria Cuccittini de Messi ("Mrs Messi") and Rodolfo Hector Schinocca ("Mr Schinocca"),a former professional footballer and now active in business in the field of sport, a certified accountant and a FIFA accredited agent.

By an undated application Mrs Messi entered into a contract with Sovereign Gibraltar for the provision of SCL. The type of business to be undertaken by SCL was described in the application on the following terms: "Hold image rights of a footballer (sic) player. Transfer license to the UK of those rights."

The Chief Justice went on: This is a case were both the Messis and Mr Schinocca come before this court with what is a palpably genuine sense of grievance against the other, whether one which is justified or not is a different matter. Although accurate to say that on the fundamental nature of the relationship between the parties I prefer the evidence of Mr Messi over that of Mr Schinocca it is clear that the Messis are not beyond criticism. The inconsistencies in the way that the Messis have advanced their case at different times; Mrs Messis absolute ignorance of the commercial relationship and Mr Messis inability to even identify documents central to this case is certainly strong cause for dealing with their evidence with circumspection. Mr Messi would have it these inconsistencies arise consequent upon his reliance on his lawyers to advance the case. This affords an explanation but also a willingness to divest himself of control over his evidence of fact and therefore evinces a willingness to allow his evidence to be modulated so as to achieve a favourable outcome. This necessarily impacts upon his credibility and reliability. It is also a case in which much of the evidence of third parties is either unreliable or incapable of providing independent confirmation of the case advanced by either Respondent and on the fundamental issue of what was in fact agreed between Messis and Mr Schinocca their evidence can be discounted.

That there was an agreement between the Messis and Mr Schinocca is self evident and underpinning all the issues falling for determination the core dispute is whether Mr Schinocca was to have a 5% interest or a 62.65% interest in Lionel's image rights. Of course in making a determination matters need to be looked at in historical context in that evidently the Lionel of 2005 had not by that stage become either the highly acclaimed footballer or the household name he now is. In my view the instructions provided by Otero & Asociados/Sovereign Uruguay to Sovereign Gibraltar provide the most reliable evidence as to the corporate structure and respective beneficial percentile interests in Lionel's image rights in February/March 2005. The fundamental weakness in Mr Schinocca's case is that his interest in Lionel's image rights thereafter increases from 5% to 62.65% in the absence of any substantive commercial explanation. I have no doubt that Mr Schinocca's role was not that of accountant but rather that of a business partner but such relationship was clearly capable of existing with either a 5% or a 62.65% interest. It is highly probable that Mr Schinocca expended his time and effort in developing Lionel's image but for the reasons previously given on balance I am not persuaded that he invested either the US$50,000 upon the assignment of the image rights or that he financed the Messis in the sum of US$200,000. Moreover, the wholly ambiguous evidence by Mr Schinocca as to how the agreement was concluded does not remotely begin to establish that the parties reached agreement on the terms which he avers.

Mr Schinocca urges the court to draw the inference that relations between him and the Messis soured after a number of image rights contracts including the Adidas contract were concluded as a consequence of which the Messis realized they had struck a bad bargain and sought to renege from the agreement. It is not an inference I draw. The Adidas agreement was entered into on the 31st January 2006 and if the Messis had harboured misgivings as to the terms of the deal they had struck with Mr Schinocca, Lionel would not have only 4 days earlier, on the 27th January 2006, ratified the 3rd March 2005 assignment. The absence of commercial reality in the case as advanced by Mr Schinocca is further evidenced by the Amended Agency Agreement of 30th March 2006. If the Messis had been dissatisfied with the terms of their agreement with Mr Schinocca, the Amended Agency Agreement increasing Mr Schinocca's share in Lionel's image rights even further, would no doubt have afforded Mrs Messi qua director of SCL an opportunity to voice misgivings.

The foregoing leads me to the inexorable conclusion that Mr Schinocca was improperly seeking to maximise his share of profits in Lionel's image rights and obtain control of the corporate structure through which these were managed and controlled. For these reasons on balance I find that the alleged transfer of shares in SCL from Mrs Messi to Mr Schinocca was not an arms length commercial transaction and that Mrs Messi did not knowingly transfer her shares to Mr Shinocca's nominee for him to hold beneficially. The corollary to that is that Mrs Messi's signature in the documents identified in The Issues was obtained by fraudulent misrepresentation/deception on the part of Mr Schinocca. Consequently the Applicants are to treat Mrs Messi as the absolute legal and beneficial owner of the disputed 25,100 shares in SCL, said the Chief Justice.

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