CODE ABOGADOS was represented by 2 of its lawyers, at the Sixth Congress of the AIAF that took place in the city of Lausanne, in the Olympic Museum, on September 18 and 19, 2018, with a special theme: how to draft the contracts of the players and what to do in the cases of breaching them. With this article we want to summarize the conclusions of the Congress, respecting in any case the limits of the confidentiality of an event like this. A true think tank where operators exchange their opinions and experiences from a personal point of view, not necessarily institutional.
It should be noted that the interest of the Congress lies, especially in the broad spectrum of the same: not only were present the most specialized lawyers in this area (and the AIAF), but also, members of other institutions interested in the subject: FIFA, UEFA, FIFPRO (international players' union), ECA (association of European clubs), arbitrators of the CAS (international sports arbitration court), representatives of Intermediary Agencies all over the world and even lawyers and executives of the North American MLS. As a whole, it was an open forum, eminently specialized, and where lawyers and other stakeholders shared their different experiences, opinions, and theories about the current state of professional football.
We will summarize the conclusions of the Congress according to the specific themes and panels. The first panel dealt with the basic aspects of contracts. The aim of the dissertations was to analyze and share practical advice on the contractual conditions to be established in the contracts of professional athletes, both sporting and economic, serving as a starting point for the rest of the conferences.
The second panel was especially interesting, since it deepened more in the contractual problems, focusing its attention on the "pre-contracts" (figure vulgarly poorly known and very problematic in the legal world). The legal field is very open in this area, especially for contracts other than sports work contracts (there are commercial and transfer agreements that are different from the player's own sports contract, but have very significant economic effects). It remains a complex issue, with little regulation that gives much play to contracts linked to future eventualities. Once again, the scope of the TPO prohibition of art. 18.ter of the RSTP.
The third panel dealt with the general regulatory frameworks, especially, again, the TPO. He insisted again on the bad regulation of FIFA, which with its articles, far from regulating the matter, is prohibiting it clumsily, without even clarifying what happens when the player himself has a% participation in his transfer fee. There are several cases currently before FIFA's DRC on this issue, cases in which nobody is able to anticipate what the final decision of FIFA will be. It is very controversial that the player himself, who is the object of the transfer himself, cannot legally participate in the amount of the transfer according to an agreement with his current club, signed when the acquisition of said player was agreed. It seems, without doubt, an exceeding of the FIFA standard. Multiple strategies were exposed to allow being able to participate in the transfer operations by the intermediaries, beyond the article 18.ter of the RSTP. As you can imagine, imaginative solutions of specialized lawyers. In any case, it is a question that has a lot to do with national or local law: there are strategies or action plans that depend on the institutions of national law (Brazil does not have the same contractual laws as Spain, nor Spain as the US, for example) and procedural regulation, forensic and public and private transparency. Here you can also go to the shopping forum in certain cases. It is a matter of knowing the subject very well and anticipating all possible future events, to choose the most appropriate jurisdiction for the matter at hand. Leaving, again, open the field of challenges of the fraud of law.
The fourth panel and the fifth panel developed the breakdowns of the players' contracts, with special consideration for the new amendments to the FIFA RSTP effective from June 1, 2018. The reasons justifying the justified unilateral rupture were analyzed (with separate comments to real and current cases, such as the incidents with the Sporting of Portugal that we analyzed in the previous article of this blog, with contributions from the involved lawyers themselves, comments that for reasons of confidentiality we cannot make public). The main legal nature of the players' contracts was discussed, differentiating between different contracts: that labor law is the basis of employment contracts (soccer-club) is elementary, but the complexity of other agreements (transfer agreements and sponsorship, marketing or advertising contracts) and the incorporation of exit clauses to sports contracts are bringing this matter closer to civil and commercial law. The terms of the FIFA RSTP changes implemented on June 2018 were clarified by the operators themselves (FIFPRO, ECA, and FIFA itself). Finally, there was a very interesting debate about the various exit/termination clauses and their legal effects: buy-out clauses (the famous Spanish sports rescission clauses, misnamed here), liquidated damages clauses and the penalty clauses (contract armor agreements). Its effects, both economic and sporting, are very different: for example, with the buy-outs, the contract is never breached and there cannot be, as a consequence, sport sanctions or claims of complementary damages. It was very interesting to compare these institutions with the practice of the Anglo-Saxon countries thanks to the assistants of the MLS, because it is well known that this type of pacts work, with success and under another sport culture, in the great American leagues of professional sport ( NBA, NFL, MBL, MLS, etc ...).
Finally, as a general conclusion, sports law is changing. It is becoming more complex and international as the sports industry is developing. Like any business activity (we are facing an authentic sports and entertainment industry), it is evolving in a parallel way and conditioned to the economic importance that represents. In the old days, there were a couple of lawyers in the international transfer operations. Nowadays, there are 2 teams formed by 4-5 members in each interested party, which has to monitor the current and future consequences, the rules of financial compliance and salary cap, problems of jurisdiction, scope of transparency and confidential, default regime and future or conditioned compliance, etc ...
Gerardo Siguero Muñoz.
CODE ABOGADOS. Sports Law Department