A Footballer's Death: Contracts & Consequences
Total Page：16
File Type：pdf, Size：1020Kb
www.newlawjournal.co.uk | 5 July 2019 COMMERCIAL LEGAL UPDATE 13 A footballer’s death: contracts & consequences IN BRIEF The death of Emiliano Sala of Uzbekistan, Norges Footballforbund, f Reviews the death of Argentinian footballer, mid-transfer left a tangled Norwich City FC, Olympiacos FC, and signed by Cardiff FC, formerly of FC Nantes, more lawyers than one could name. This from a legal standpoint. web of contractual issues, is seriously big time. The case of Emiliano f Covers issues of frustration of contract, writes Michael L Nash Sala was, and is, like a coda of a now very negligence, role of a football agent, duty of big dimension indeed, in money, in fame, in care and role of FIFA. power, and in reputation. England, and fifth, and perhaps overarching very so often the world is riveted, all, the role of the agent. Frustrated contracts temporarily fixated, on one story. The role of the agent and the sports Emiliano Sala was signed from FC Nantes The case of Emiliano Sala, the lawyer has grown exponentially in the past by Cardiff City FC for a transfer fee of £15m E28-year-old Argentinian footballer, decade or so. From being concerned with in January 2019. When Sala died in a plane so recently signed by Cardiff, was one of a small group of those interested in sport crash, flying from Nantes to Cardiff, the these stories. From the moment the news and law, it has grown into an international contract was clearly frustrated, according broke that he was missing to the moment his organisation, with conferences attended to case law in England and the Law Reform body was found, the world paused in its mad by all the great and good in the corporate, (Frustrated Contracts) Act 1943. The helter skelter. sporting and legal worlds. This is borne fallout from the frustrated contract would When the last days of Emiliano Sala are witness to by the recent conference on Sport mean that money owing did not have to analysed, they reveal many different levels and Law which took place at the Royal be paid, one of the central pillars of the of law, regulation and roles. If the contract College of Physicians in London. Among the Act. If a contract is frustrated, the parties between Cardiff FC and FC Nantes (the club delegates of the two-day conference will be: are discharged from further performance. where he had been playing) is examined, a Juventus footballer, Arsenal FC, Brighton However, frustration is a doctrine of last then the issue of frustration emerges, and & Hove Albion FC, Crystal Palace FC, Credit resort. The courts will only reach the the terms and conditions of that contract, Suisse, the English Football Association, conclusion that a contract is frustrated if which may or may not have been fulfilled the European Football Association, Everton they cannot help but do so. If a contract before Sala’s untimely death. Then there is FC, FK Sarajevo, the German Football becomes illegal, impossible, or radically the possible issue in tort of negligence and Agents Association, Huddersfield Town different from what the parties intended, breach of duty of care. Third, there is the FC, Juventus FC Women, Luton Town then it is frustrated. role of FIFA. Fourth, there is the question FC, Maccabi Tel Aviv FC, Manchester Sala’s death must certainly have of registration with the Premier League in United, the National Olympic Committee frustrated the contract between Cardiff 14 LEGAL UPDATE COMMERCIAL 5 July 2019 | www.newlawjournal.co.uk and Nantes. This seems to be the outcome of Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] 3 WLR 1617. It is unjust to hold the parties to their original obligations in the light of the changed circumstances. Cardiff City refused to pay Nantes the £15m transfer fee and this was in line with s 1(2) of the Frustrated Contracts Act: all money still owing under the contract ceases to be due. This is followed by the provision that money already paid is recoverable and a party who has received valuable benefits under the contract, other than money, can be ordered by the court to pay compensation for this. The question is: did Cardiff receive valuable benefits in a heightened profile and increase in reputation by signing Sala? The law of France must also be involved here in some way. Cardiff therefore planned to submit to FIFA, football’s world governing body, to explain the withholding of the first instalment of the fee amid a row as to which club owned Sala when he was killed? This was revealed in an article by the Daily Telegraph. The situation was further be null and void with no payment due. that being a requirement for such flights complicated by the refusal of the Premier The legally-binding clause, which Cardiff under the Civil Aviation Act 2012. Anyone League in England to allow Sala to play in claimed had not been fulfilled, had been found guilty of breaching the Act faces up to the competition due to a non-compliant proposed by Nantes. They asked for strict two years’ imprisonment. signing-on fee. Did this mean, therefore, notification requirements. The transfer This brings in the claims for negligence. that the contract was null even before the deadline was just over a week after that. So, Under the laws of agency, McKay was death of Sala? In addition, Cardiff argued if the transfer didn’t complete on 22 January in a fiduciary position to both Nantes that certain legally binding clauses in the 2019, Nantes had time to find an alternative and Cardiff, and to Sala himself. Among transfer agreement with Nantes had not buyer for the player. Cardiff had agreed the duties of an agent are care and skill, been fulfilled. to the condition because it allowed them fiduciary duties and the duty to account, In summary, Sala had signed a contract another week to find an alternative striker. while commercial agents (of which he was with Cardiff which was rejected by the surely one) carry additional duties. Premier League but died before a revised The flight An additional dimension to this already one could be signed. It was rejected because Nantes disputed the claim of Cardiff. A multi-layered conundrum is the fact that the club had front-loaded his signing-on spokesman said FC Nantes had completed McKay’s son, Mark, also an agent, had fee in contravention of the rules stipulating all the required paperwork to complete the worked for Nantes during the player’s move that such money must be paid in equal Emiliano Sala transfer. Thus, Fifa registered to Wales. instalments over the duration of a player’s the International Transfer Certificate on The official report into the crash found contract. Sala would have had to have 21 January 2019, at 5.30pm. Nantes was that neither the pilot of the plane, David signed a revised contract to play in the fully compliant with Fifa rules. The plane Ibbotson, nor the plane itself, a Piper Malibu Premier League and there now arose a carrying the doomed player took off from PA-46-310P, had been licensed to undertake dispute as to whether he had agreed to Nantes at 7.15pm, one and three-quarter commercial flights. This meant that the do so before he died. The agreement had hours later. journey to Nantes and back could only have apparently stipulated that the Football What happened next concerned the role been legal if it had been arranged on what Association of Wales and the Ligue de of the agent, the official report into the is termed a ‘cost-sharing’ basis, in which Football Professionnel (LFP) of France had crash, and the issues of negligence and the plane’s passengers split any expenses. to confirm to both clubs that Sala had been volenti non fit injuria. McKay admitted to the Daily Telegraph that registered as a Cardiff City Football Club There was, and is, doubt over the legality Sala ‘was not paying anything’. player and that the player’s International of the flight. The agent was Willie McKay, He admitted he had paid the full cost Transfer Certificate had been released. who said he had paid the full cost of the of the flight but denied any responsibility Another clause stated both parties had to fatal trip. As to why Cardiff City did not for Sala’s death. He repeatedly said make ‘reasonable endeavours’ to ensure all book the flight themselves, the answer that the trip was booked through Dave conditions in the agreement were met by seems to be that they were going to book Henderson, an experienced light aircraft the following day. Sala onto a commercial flight but were told pilot who had flown around Europe on There was, therefore, a third possibility alternative arrangements had been made. many occasions, and that he had had no that the contract was null and void: the McKay, the man who had brokered input into the selection of the pilot or plane. transfer agreement between Cardiff and Sala’s transfer to Cardiff City, said on 21 Nevertheless, as an agent, he had booked Nantes was subject to several conditions. If January 2019 that the journey had not been the flight, whether through someone else they were not satisfied, the contract would organised on a ‘cost-sharing’ basis, despite or not. McKay said: ‘I’ve been told on good www.newlawjournal.co.uk | 5 July 2019 COMMERCIAL LEGAL UPDATE 15 authority he was a very good pilot… I don’t The trip to Nantes on 8 January 2019 Accident investigators reported in hold anyone responsible because it’s just a ended with an invitation for Sala and his February 2019 that David Ibbotson, the tragic accident.’ But does this discharge his agent, Meïssa N’diaye, to visit Cardiff’s pilot, was not licensed to carry passengers duty of care and skill as an agent? stadium to discuss terms.