PLAYER CONTRACTS FIFA and the CAS rule on rescission/buy-out clauses the rescission clause. A cheque solidarity contribution, on the It is well known that coordination issued by AS was basis that the player had been between rescission clauses/buy-out deposited in the Spanish Football effectively ‘transferred’ (in the clauses and the solidarity League account to be paid to sense of the FIFA RSTP) from mechanism is far from a peaceful Sevilla and the player and AS Sevilla FC to the respondent. AS issue in the world of football. This is Monaco signed a new employment Monaco sustained that no transfer agreement. giving rise to the payment of a confirmed by precedents, such as Some months later, AS Monaco solidarity contribution took place, CAS award 2011/A/2356 SS Lazio received a claim requesting and that in the event that AS SpA v. CA Vélez Sarsfield (player payment of the solidarity Monaco was ordered to pay this Mauro Zárate), which mainly contribution from RC Lens as contribution, Sevilla FC should regards the ‘transfer’ of the player. reimburse AS Monaco in focussed on the scope of the term AS Monaco replied to the request accordance with FIFA ‘transfer’ for the purposes of the stating (i) that it was not aware of jurisprudence regarding similar solidarity contribution provisions. any established legal precedent cases in which 100% of the transfer Recently a new pronouncement on pursuant to which an obligation to compensation (without deduction this matter has been issued by the pay a solidarity contribution arises of the 5% solidarity contribution) following the movement of a was paid to the player’s former Court of Arbitration for Sport (‘CAS’) player based on the exercise of the club. Sevilla FC was thus called to in a conflict between AS Monaco rescission right granted to players join the proceedings, in which it and Sevilla FC following the move of in the Royal Decree, and (ii) that it stated that the €20 million received player (CAS would not be appropriate for AS exercising the rescission right 2015/A/4188). Jordi López Batet, Monaco to make any solidarity foreseen in the Royal Decree was to contribution unless it was be considered a net amount to Partner at Pintó Ruiz & Del Valle, established by all the parties compensate the loss or damage provides detailed commentary on involved that the move of player caused by the player’s leaving, and the reasoning followed in the case. fell within the scope of the that any solidarity compensation solidarity contribution provisions that may exist should be paid by At the beginning of the 2012/13 of the FIFA Regulations on the the new club, AS Monaco. season, the French club RC Lens Status and Transfer of Players The FIFA Dispute Resolution transferred Geoffrey Kondogbia to (‘RSTP’) and that Sevilla FC Chamber accepted RC Lens’ claim, Sevilla FC. The new club and the confirmed its willingness to ordered AS Monaco to pay player signed an employment reimburse AS Monaco for the €606,600 plus interest to RC Lens agreement for five sporting relevant amount. as a solidarity contribution and seasons, which included a In spite of AS Monaco, Lens rejected AS Monaco’s claim for ‘rescission clause’ in accordance insisted on its claim. AS Monaco reimbursement against Sevilla FC. with the Spanish Royal Decree Jordi López decided to inform Sevilla FC about FIFA considered that a transfer had 1006/1985, which dictates the Batet Lens’ request and the possibility taken place and thus the provisions special labour relationship of that FIFA could consider the move in Article 21 and Annex 5 of the professional athletes (the ‘Royal of the player a ‘transfer’ in the FIFA RSTP were to be applied, and Decree’). By virtue of this clause, in sense of the FIFA RSTP, and asked that in view of the particularities of the event of early unilateral FC Sevilla to provide its view on the case, the characteristics of buy- rescission of the contract by the two possibilities to solve the outs in connection with the Royal player before the expiration of the matter: either Sevilla pay the Decree and the indemnification agreed term, the player was obliged solidarity contribution sum clause, no reimbursement from to indemnify Sevilla FC in the sum directly to Sevilla FC or Sevilla Sevilla FC to AS Monaco could of €20 million. reimburse the solidarity take place. At the end of the first contractual contribution that AS Monaco may season, the player wanted to leave pay to Lens. Sevilla FC’s replied: it The issues Sevilla FC and be hired by AS had nothing to pay neither to RC The particularities of this case have Monaco, and as such notified Lens nor to AS Monaco. mainly to do with the parties’ Sevilla of his intention to rescind RC Lens started proceedings with reaction to the FIFA decision and the employment agreement by FIFA against AS Monaco the factual and ‘procedural’ paying €20 million on the basis of requesting payment of the decisions thereafter. On one hand,

World Sports Law Report - August 2016 07 PLAYER CONTRACTS

AS Monaco, instead of appealing The from the object of the appeal, and if €20 million was paid to Sevilla the FIFA Decision in toto, decided configuration therefore that it would assume in FC. The Panel stressed that AS to pay the sum it was ordered to of the appeal the resolution of the case that the Monaco used the opportunity pay to RC Lens whilst at the same prevented the move of the player constituted a offered by the Royal Decree to hire Panel from time appealing the FIFA Decision deciding on transfer. This conclusion, together the player, and thus it shall accept before the CAS but only to the one of the with the fact that RC Lens was not any inconvenient consequences extent that Sevilla FC reimburse key issues: a party to the proceedings at the thereof, and that prior to executing the payment it made to RC Lens. whether the CAS and the content of Article R55 the transaction, it was aware of the On the other hand, Sevilla FC did move of the of the CAS (which stipulates that FIFA rules concerning solidarity player in casu not appeal the FIFA Decision; was to be counterclaims are no longer contribution and of the provisions however, at the time of answering considered a admissible in appeal proceedings of the Royal Decree. This led the the appeal filed by AS Monaco, transfer before the CAS), influenced the Panel to believe that AS Monaco Sevilla FC intended to file a sort of Panel’s decision on the second was obliged to pay the solidarity counterclaim requesting that the issue: the counterclaim filed by contribution and that there were CAS declare that no transfer of the Sevilla FC had to be declared no grounds for ordering Sevilla FC player took place and thus that no inadmissible. to reimburse AS Monaco for the solidarity contribution was due. Therefore, the quaestio litis was sum paid to RC Lens. The Panel Therefore, the situation of the limited to the third issue (the confirmed the FIFA Decision. dispute in this second instance appropriateness of the became completely different: the reimbursement requested by Some considerations order of payment of the solidarity Sevilla FC). In this respect, the Questions in regards to the award: contribution to RC Lens had Panel noted that (i) in accordance ● The configuration of the become final and binding, as it was with the FIFA RSTP, 5% of any appeal prevented the Panel from not appealed by AS Monaco; this compensation payable to the deciding on one of the key issues: order was executed, as AS Monaco former club shall be deducted and whether the move of the player in paid the relevant sum to RC Lens, distributed by the new club as casu was to be considered a which thus was not a party to the solidarity contribution to the clubs transfer. It would have been proceedings anymore; and Sevilla, involved in his training and interesting to see how the Panel by not appealing the FIFA education, (ii) in accordance with would have addressed the other Decision, appeared to consent to the 2005 Commentary to the FIFA issues and how the Panel would its terms but at the same time was RSTP, if the new club has paid the have considered related precedents seeking for a declaration that a entire transfer compensation to the such as CAS 2010/A/2098 Sevilla transfer of the player never took former club without deducting the FC v. RC Lens or the Zárate case. place and that no solidarity 5% solidarity contribution, a claim ● The Panel, while dealing with contribution had to be paid. of the new club for recovering the the counterclaim filed by Sevilla In light of this, the Panel had to amount paid in excess may be FC, mentioned that it cannot be address three issues: (i) whether it lodged with FIFA, and (iii) the ruled out in advance that a party, could enter into the discussion parties are free to agree on in specific situations, may have regarding the consideration of the “internal arrangements” (the sufficient interest in appealing a player’s move as a ‘transfer’ for the Panel’s words) concerning the decision even if it is happy with the purposes of the solidarity payment of solidarity contribution final outcome, so that it is not contribution; (ii) whether the as long as the new club remains precluded from making counterclaim filed by Sevilla FC responsible for the training clubs. submissions concerning certain was admissible; and (iii) whether The Panel stated that in the case at elements of the decision which the Sevilla FC had to reimburse AS stake, given the special counterparty decided to exclude Monaco the sum paid to RC Lens. configuration of the “rescission from the appeal. With regard to the first issue, the clause,” the parties neither At this stage, we will have to see Panel made it clear that the fact negotiated the transfer conditions how the situation evolves when that AS Monaco’s appeal was nor agreed on issues related to the similar cases are brought before limited to the question of the payment of the solidarity FIFA and the CAS. payment’s reimbursement contribution, given it was prevented the Panel from undisputed that the player’s Jordi López Batet Partner Pintó Ruiz & Del Valle, considering the transfer matter, as employment agreement [email protected] it had been expressly excluded termination could only be effected

08 World Sports Law Report - August 2016