Sports Law/ Dispute Resolution 17th February 2020 Olukolade Ehinmosan1 A REVIEW OF THE EMILIANO SALA DECISION Background The January 2019 Summer Transfer Window was an exciting beehive of European football transfer activity. Arguably the most notable transfer of the Window, FC Nantes Centre Forward Emiliano Raul Sala sealed his move to then English Premier League outfit, Cardiff City. Sala expressed elation and even dubbed the transfer a “dream move.”2 The atmosphere soon became sour with the tragic demise of Sala in a devastating plane crash while travelling from France to team up with his new club, Cardiff City FC. Within a few days of the incident, searches and investigations ensued, including an investigation by the Air Accidents Investigations Branch (AAIB), as the plane had gone missing. On its part, FC Nantes lodged a complaint against Cardiff City before the FIFA Bureau of the Players’ Status Committee (PSC). The complaint ripened into a full-blown dispute which we have endeavoured to review below. FC Nantes, France vs. Cardiff City FC, Wales The Bureau comprising a four-man panel sat and passed a decision in Zurich, Switzerland on 25 September 2019.3 1 Olukolade Ehinmosan, Associate Dispute Resolution Department, SPA Ajibade & Co., Lagos, NIGERIA. 2 See <https://www.sportbible.com/football/news-sala-was-just-about-to-fulfill-his-dream-of-playing- in-the-prem-20190123> accessed February 11, 2020 at 9:28 am. 3 See <https://resources.fifa.com/image/upload/player-emiliano- sala.pdf?cloudid=zz1mucunt6ydvrzqrqdw> accessed February 11, 2020 at 9:28 am. Summary of the Facts The claim involved a contractual dispute between the two football clubs (Nantes and Cardiff City) on the transfer of the late Emiliano Raul Sala. On 19th January 2019, both clubs signed a transfer agreement on Sala’s transfer from Nantes to Cardiff. Seventeen million Euros (€17,000,000) was agreed as the transfer fee which was to be paid in three (3) instalments in the ratio 6:6:5. As part of the transfer agreement, Cardiff undertook to pay Nantes a ‘promotion bonus’ of 2 million Euros (€2,000,000) spread across three instalments. The promotion bonus was due even though the player had “not been registered with Cardiff City FC during the season which Cardiff City FC participates and retains its Premier League Status”. On 21st January 2019, the Fédération Française de Football (FFF) delivered the International Transfer Certificate (ITC) for the player to the Football Association of Wales (FAW) which accordingly registered the player with Cardiff. Subsequently, the FAW registered the player with Cardiff in the International Transfer Matching System (ITMS). Fate struck on the night between 21st and 22nd January 2019 when Sala passed away in a plane crash across the English Channel. Pleadings of Parties On 26th January 2019, Nantes lodged a claim with FIFA against Cardiff for payment to Nantes of the first instalment of the agreed transfer fee to the tune of six million Euros (€6,000,000). In addition, Nantes claimed interest accruing on the first instalment as of 27th January 2019. Nantes also sought orders penalizing/sanctioning Cardiff for breach of contract as well as the second and third instalments, just in case they became due in the course of the proceedings. Relevant Legislations The Bureau of the PSC considered the following rules and regulations: 1. FIFA Statutes. 2. FIFA Regulation on the Status and Transfer of Players (“the RSTP”). 3. FIFA Rules Governing the Procedures of the Players’ Status Committee (PSC) and the Dispute Resolution Chamber (DRC). Arguments In response to Nantes’ Claim, Cardiff raised a two-pronged preliminary objection to the determination of the Claim. Preliminary Arguments First, Cardiff challenged the competence of FIFA to entertain the claim based on the position of the law in relation to Clause 8.2 of the Player Transfer Agreement. In this regard, Cardiff contended that since Clause 8.2 wrongly stipulated that the instant dispute should be submitted to the FIFA Dispute Resolution Chamber (DRC) rather than the Players’ Status Committee (PSC)4, that Clause must be deemed “invalid, null and void/or inoperative and/or impossible to perform.” Cardiff submitted that FIFA lacked requisite jurisdiction and that instead, the Court of Arbitration on Sports (CAS) was the competent body to adjudicate the matter. Second, and by way of an alternative argument, Cardiff sought an order staying proceedings pending the completion of the following situations: a. Publication of the final report of the AAIB on the plane crash of 21 January 2019; b. The conclusion of all criminal investigations and prosecutions (including those which may be pursued by the Police and Civil Aviation Authority in the UK) in connection with the plane crash; and c. The conclusion of any civil claim pursued by Cardiff against Nantes in either England or Wales or France against Nantes in relation to the organization of the flight operated by Willie McKay and the company called “Mercato.” On its second preliminary issue, Cardiff contended that on a balance of probability, the damages associated with FIFA making a premature decision without first allowing the conclusion of appropriate criminal and public authority investigations by far outweighed any possible prejudice that Nantes could suffer as a result of the Bureau granting a stay of proceedings. Cardiff considered the circumstances surrounding the death of Sala as “directly relevant and central as to the context and meaning of the Transfer Agreement and also any liability for losses that may arise from the same contract.”5 Still on this second preliminary objection, Cardiff further argued that a refusal of a stay of proceedings would not only constitute prejudice on the AAIB investigation, ongoing criminal investigations, future public inquiry or potential criminal trials but may also occasion a clash in the eventual decisions of FIFA on one hand, and the investigating authorities on the other hand, thereby casting serious aspersions on the credibility of FIFA. 4 See the Decision of the Bureau of the Players’ Status Committee passed in Zurich, Switzerland on 25 September 2019: <https://resources.fifa.com/image/upload/player-emiliano- sala.pdf?cloudid=zz1mucunt6ydvrzqrqdw> accessed on February 11, 2020 at 9:42 am. 5 Infra note 3, page 5, paragraph 21. Arguments on Substantive Issues On the substantive issues before the Bureau, Cardiff canvassed arguments on two major standpoints: a. Whether the Player Transfer Agreement was valid? and b. Whether Nantes is both responsible and liable in relation to the tragic demise of Emiliano Raul Sala? On the first standpoint, Cardiff referred the Bureau, to the following clauses which are sub- stratified under clause 2.1 of the agreement providing for the conditions upon which the transfer agreement was to be deemed as valid: 2.1.4 “The LFP and the FAW [i.e. the Football Association of Wales] have confirmed to Cardiff City FC and FC Nantes that the Player has been registered as a Cardiff City FC player and that the Player’s International Transfer Certificate has been released. 2.2 …both parties shall use all reasonable endeavours to ensure that the conditions are satisfied no later than 22 January 2019. If the conditions are not fulfilled within this period then this Transfer Agreement shall be null and void. In such event: 2.2.1 This Transfer Agreement shall cease to have legal effect; 2.2.2 No payment shall be due from Cardiff City FC to FC Nantes; 2.2.3 Neither party shall have any ongoing obligations or liability in relation to this Transfer Agreement.” On these clauses, Cardiff contended that the conditions stated in the clauses had not been fulfilled and thus, the agreement had ceased to have legal effect. It pleaded facts purportedly showing that its membership of the English Premier League (EPL) was a fundamental term of the transfer agreement; as Nantes “was only prepared to sell the player to a Premier League club”. It also relied on the evidence before the Bureau that shows that the EPL had deemed the employment contract invalid and that since no other employment contract had been signed or uploaded in the Transfer Matching System (TMS), an ITC could not be issued. According to Cardiff, the nullity of the agreement was the inevitable result. Cardiff further contended that since the Ligue de Football Professionnel (LFP)6 and the Football Association of Wales (FAW) neither confirmed the release of the ITC nor the player’s 6 The French Professional Football League. registration to the parties, clause 2.1.4 of the contract was not fulfilled, thereby making the contract null and void with no payment whatsoever due to Nantes. On the second standpoint, Cardiff inferred the following facts: 1. The player’s flight had been wrongfully organized by the player’s agent, one Willie McKay, and his (McKay’s) company acting under Nantes’ mandate occasioning civil liability on the French outfit for the legal consequences resulting from the accident as if Nantes had organized it itself; 2. That the said agent, Mr. Willie McKay had been declared ineligible to be a registered football agent due to bankruptcy but had gone ahead to form a company “Mercato” to operate as a football agency company and that the company was merely in furtherance of a course, the subject of which McKay had been declared ineligible to tread; 3. Nantes hired an unlicensed aircraft and contracted Mercato with an unlicensed pilot for the deceased player’s flight of 19 January 2019. In connection with the plane crash, a preliminary report of the AAIB identified two breaches of duty of care ultimately attributable to Nantes: a. The necessary authorization to operate the aircraft for commercial purpose had not been obtained; and b.