Legal problems of the frustrated? transfer of Emiliano Sala.

6 MAR 2019

Derecho Deportivo

Once Emiliano Sala rest in peace in his hometown of Progreso (Argentina), it is foreseeable that the conflict between the Cardiff City and Nantes clubs will intensify due to the refusal of the first to pay the 17 million euros agreed by the transfer of the player. According to some sources, Nantes would have already claimed before FIFA the first payment that should have been made in January. In addition, another French club, the Girondins de Bordeaux, would also come into play as it was the owner of 50% of the economic rights of the Argentine.

This is a unique case and difficult that would take place again because if the player had trained with Cardiff, there would be no possible argument.

Before going into the particular details, we have to advance some important aspects. In any transfer of a player, whether national or international, a minimum of two contracts shall be signed. The employment contract between the new club and the player; and a transfer agreement  between both clubs.

In order to protect the player, the FIFA regulations does not allow the employment contract to be subject to any conditions such as the attainment of a work permit or medical exam (therefore the medical examination is always done before the signing of the employment contract).

On the other hand, the transfer contract can (and usually) be conditioned to certain acts or actions. Examples of these conditions are the passing of medical tests, the signing of the employment  contract between the new player and the player within a certain period or the inclusion of the details of the transfer on the FIFA TMS platform.

In this case, seeing that the player was presented by Cardiff City we can assume that these two contracts and their requirements were met. As well as that the famous International Transfer Certificate was received in a timely manner. The player was only waiting to change his residence to the Welsh capital. And here is the crux of the matter. A comment from Cardiff City Director General Ken Choo makes it possible to see what argument the Welsh could make. Speaking to the British press, the manager said: "Cardiff City had no jurisdiction over the player." What do you mean by that? Why is it relevant?

This statement refers to the player being under their sphere of influence or control. In international regulations on the sale of goods, there exists a provision referring to determine when a party has jurisdiction over the good which constitutes the object of the sale and therefore it is considered that it has already acquired it (if it is the buyer) or has not yet transferred it (if it is the same). seller). For example, if a product leaves the seller's factory but does not arrive at the port where it was to be transported to the buyer's country, it is very likely that the seller was held responsible and therefore could not claim the price at the seller's expense. buyer.

What is the problem with this argument? Well, as we all know, football players are people and not merchandise or goods. They are highly qualified workers in which employers (clubs) compensate each other for the loss / acquisition of their services. In the event that FIFA accepts the argument of the British Club, would assimilate the players with goods, which for those who subscribe this paper would be unacceptable.

The strategy of Cardiff City is not exempt from logic from the business point of view. The FIFA Dispute Resolution Chamber could take more than a year to pronounce itself about the issue and the most likely sanction that would be imposed in the event of a ruling against it is the payment of a legal interest of 5%, except that the clubs they would have agreed to another interest in the contract. In addition, they could still appeal FIFA's decision before the Court of Arbitration for Sport, further delaying the procedure.

Nonetheless,  we can go further on this matter. The responsibilities derived from the federation, that is to say, under FIFA jurisdiction, seem to have been clarified, however, it has been demonstrated that this dramatic event will lead to a series of new customs in contractual matters. Without any doubt, this would have impact within the so-called transfer agreements between clubs, however it is possible that in the employment contracts between the player and the club are added or modified some clauses in order regulate this possible circumstances.

It is well known throughout society that many footballers or elite athletes with notable income make regular use of private flights through operators or even they have their own aircraft, the question arises whether those private flights, and specifically that of Emiliano Sala, complies with current regulations on security for this type of services and, at the same time, if the use of this service may or may not be considered as a high risk activity for the athlete.

So it is common in the athlete´s contract, football players in this particular case,  with his/ her Club to agree or, better said,  imposed by the Club a number of "prohibitions" to respect by the athlete, i.e. the prohibition of practicing risky sports with the objective of not endangering the physical integrity of the athlete.

Therefore, can we consider that the Argentine player made a decision that put his physical integrity at risk and could breach these clauses if they were included in his contract?

Certainly, we should clarify that the simple fact of taking a plane through a company, that is to say the so-called commercial flight, is not the same as choosing, on the contrary, a private flight.

As the well-known lawyer Philippe Renz points out in his article Air Transport: What are the Legal and Financial Risks for Clubs? The regulations of international civil aviation have their origin in the standards and best practices issued by the International Civil Aviation Organization, a United Nations organization based in Montreal. Such guidelines must be and are accepted by each country and the EU as a whole, as well as applicable in terms of maintenance and safety of the aircraft. Thus, as the author points out in his article, the security requirements and controls are not the same for airplanes of a commercial nature and those of a non-commercial or private nature, in fact, the latter and their operators, are not obliged to complete so many safety examinations and so much control by the pertinent Authorities on the conditions of the aircraft.

Clarified the above, the merely fact that the players decide to hire this type of private flight services may constitute some risk for his / her integrity taking into consideration the security requirements that the operators should apply for the maintenance and security of this aircraft.

As we have pointed out before, it is common that in the contract itself, in an annex to this or even in the internal regulations of the Club for professional players, a number of prohibitions are established, those prohibitions should be complied by the players in order not to carry out activities that put their physical condition under a potential risk. Within these clauses is usually established the prohibition of skiing, unofficial football matches without the consent of the club, extreme risk sports ... etc.

Now, after this tragic event, will clubs decide to include in the work contract the prohibition to travel in operators that do not meet a series of guarantees? It seems possible, that they try to include it or at least limit those aircraft services to an express consent by the club to the use. Its prohibition could bring to the field a certain number of controversies such as the validity of said clauses and the limitation of the right of the player to free movement, however, and due to the specialty held by elite athletes, in this case football players, that their greatest asset it is his /her own own physical form, it is understandable that this use is limited to certain operators that are in a position to offering guarantees of the service.

But without doubt, both, clubs and players should pay more attention than ever to their insurance policies relating to these trips with the aim that they can cover all damage, in its entirety, including sports in case of accident. Not easy business.

Luis de Oleza de España.

Sergio Barrasa Antón.

CODE ABOGADOS & PARMARS SPORTS

 

[1] Air Transport: What are the Legal and Financial Risks for Clubs? - Football Legal

[2] https://www.icao.int/about-icao/pages/es/default_es.aspx

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