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Über dieses Buch

This book addresses the most important judicial aspects in relation to the FIFA Dispute Resolution Chamber (DRC), as well as the different categories of disputes, inter alia, the termination of player contracts, the amount of compensation, sporting sanctions, training compensation and the solidarity mechanism. The DRC was established in 2001 by FIFA for the purpose of resolving disputes regarding the international status and transfer of players. Since then the DRC has developed into a major and influential alternative resolution body, with an impressive and everincreasing caseload. In this updated and revised Second Edition the most important decisions of the DRC as of the date of its establishment in 2001 until 2016 are analysed. It is a reference work for those with a legal and financial interest in professional football, such as lawyers, agents, managers and administrators, but is also aimed at researchers and academics. Michele Bernasconi, Attorney-at-law in Zurich, Switzerland, Arbitrator at CAS and President of the Swiss Sports Law Association provided a foreword for the book.

Frans M. de Weger is senior legal counsel working for the Dutch Federation of Professional Football Clubs (FBO). In 2015 he was, at the proposal of the European Club Association (ECA), appointed as an arbitrator for the Court of Arbitration for Sport (CAS). As a legal counsel and a CAS arbitrator he is involved in several national and international football-related legal disputes.

This book appears in the ASSER International Sports Law Series, under the editorship of Prof. Dr. Ben Van Rompuy and Dr. Antoine Duval.

“Frans de Weger’s work on the jurisprudence of the DRC is a “must-have” for anybody dealing with sports law and, in particular, dealing with football issues under the FIFA Regulations on the Status and Transfer of Players.”

Massimo Coccia

Professor of International Law and Attorney-at-Law in Rome and CAS Arbitrator

“Where to go when trying to understand the FIFA Regulations on the Status and Transfer of Players? Now Frans de Weger has the answer with his new version of the much-awaited and needed Jurisprudence of the FIFA Dispute Resolution Chamber.”

Juan de Dios Crespo Pérez

Sports Lawyer

“The second edition of this book, which is systematic and practical at the same time, will surely be of great interest to both specialists active in the world of “football law” and aspiring individuals.”

Wouter Lambrecht

Attorney-at-law, Head of Legal at the European Club Association, FIFA Dispute Resolution Chamber Member and Mediator at the CAS

Inhaltsverzeichnis

Frontmatter

Introduction

Frontmatter

Chapter 1. Background Dispute Resolution Chamber

As an introduction this chapter first considers the background of the FIFA Dispute Resolution Chamber (“the DRC”). Subsequently, FIFA’s Regulations on the Status and Transfer of Players (“the RSTP”), its history and its various editions as from 2001 will be given attention. When taking decisions, the DRC applies the RSTP as the main source of law when judging a dispute relating to the international transfer of players, their status and their eligibility to participate in organised football. The RSTP aims to regulate international transfer law when judging a dispute between member associations and to establish legal basic principles that guarantee uniform and equal treatment of all participants in the international professional football world.
Frans de Weger

Chapter 2. Procedural Aspects

This chapter looks at the procedural rules that are outlined in the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (“Procedural Rules”). In this chapter all relevant procedural aspects, such as the jurisdiction of the DRC, its composition, applicable law , procedural aspects, such as withdrawal and challenges, the entities which are entitled to lodge a claim before the DRC, the procedural costs and the manner of enforcement of the decisions, will be discussed extensively. Finally, in this chapter the appeal procedure before the CAS will also be brought to the readers’ attention.
Frans de Weger

Decisions

Frontmatter

Chapter 3. Introduction to Classification of Decisions

In this chapter an introduction is given of the various subjects that will be discussed in the second part of this book, the well-established jurisprudence. This chapter outlines the structure of the subsequent chapters in Part 2 of this book.
Frans de Weger

Chapter 4. Medical Examination

According to the RSTP and following the well-established jurisprudence of the DRC, a contract may not be made subject to a successful medical examination. Any such conditions that are included in a contract will not be recognized by the DRC and the contract will be considered valid. If, after signing the employment contract, the player does not appear to be medically fit, the player can successfully claim validity of his contract before the DRC if the club has terminated the employment contract. The player can also claim financial damages. The point of view of the DRC with regard to the medical examination is clear and homonymous. This chapter looks at the well-established jurisprudence of the DRC.
Frans de Weger

Chapter 5. Visa and Work Permit

According to the RSTP and following the well-established jurisprudence of the DRC, a contract may not be made subject to a visa or a work permit. Any such conditions that are included in a contract between a player and a club will not be recognized by the DRC and the contract will be considered valid. If, after signing the contract, no visa or work permit is issued and the club terminates the contract, the player can claim the validity of his contract before the DRC. The DRC protects the player. The player can claim financial damages if the club has terminated the contract. The DRC’s point of view is clear with regard to visas and work permits. This chapter looks at the well-established jurisprudence.
Frans de Weger

Chapter 6. Employment Contract

This chapter looks at the employment contract between a player and a club. Not only can the employment contract not be made subject to a successful medical examination and/or the granting of a visa or a work permit, but jurisprudence also shows that there are also other invalid conditions precedent, which will be brought to the readers’ attention. In relation to the employment contract, the so-called essentialia negotii will be discussed. This chapter will also focus on the so-called Protected Period of an employment contract and the formal aspects of the employment contract, such as the form and minimum and maximum length of the contract. We will see that the current RSTP provides for various requirements regarding the validity of an employment contract. After the formal elements, the remunerations relating to the employment contract will be handled, such as the salary and bonuses. These issues will be dealt with in relation to the DRC’s point of view.
Frans de Weger

Chapter 7. Unilateral Extension Option

This chapter focuses on the unilateral extension option , which is a very popular clause in international football. The most relevant decisions of the DRC as well as those of the CAS will be discussed in this regard. The use of unilateral extension options is quite problematic in international football. The DRC is of the opinion that the clauses generally have a disputable validity and are not valid since they excessively restrict the freedom of the player. In this chapter the conditions derived from the jurisprudence, under which this clause can be considered as valid, will be outlined and brought to the readers’ attention.
Frans de Weger

Chapter 8. Termination

This chapter addresses the termination of the employment contract between the player and the club. Here it will be brought to the readers’ attention under which circumstances a unilateral termination by a party is justified and accepted by the DRC. This chapter will first look at the mutual termination agreement , the probation period and the relegation clause. Subsequently, it will be analysed when just cause is present for players and clubs according to the leading jurisprudence. After analysing the DRC jurisprudence, certain guidelines can be derived from the decisions on just cause for the club. Various situations will be assessed in this chapter, such as the poor sporting performance of a player, the consequences if the player does not meet the requirement of a minimum number of matches or scored goals, the situation of unauthorised absence of the player for trainings or matches, and situations in relation to the player’s misbehaviour, such as drugs and alcohol abuse. Also, in the event that the player wishes to unilaterally terminate his contract with the club without any financial consequences, we note in this chapter that there must be just cause. For example, if the player has not received his salary for a substantial period of time, just cause exists. This is the most common form of just cause for players. Furthermore, we note that just cause can also exist if a player is sent to training out of the permanent (first) team of the club and that just cause might also exist if a player is not registered by a club. In the final part of this chapter the sporting just cause will also be brought to the readers’ attention.
Frans de Weger

Chapter 9. Compensation

This chapter focuses on the amount of compensation to be paid by a player or a club as a result of a unilateral breach of contract . In the event that the contract has been terminated by one of the parties without just cause, i.e. without a valid reason, the party in breach is obliged to pay compensation in accordance with Article 17 para 1 of the RSTP. The party who is in breach of the contract without just cause is obliged to pay compensation irrespective of whether the breach took place during or after the Protected Period. The situation will be discussed in which compensation must be paid by the club to the player due to a breach of contract without just cause by the club. The situation will also be discussed whereby compensation must be paid by the player to the club due to a breach of contract without just cause by the player.
Frans de Weger

Chapter 10. Sporting Sanctions

This chapter considers the sporting sanctions that can be imposed on a player or a club as a result of a unilateral breach without just cause. For the sporting sanctions for players we note that this sanction is a restriction of 4 months on his eligibility to play in official matches. In the case of aggravating circumstances , the restriction for the player will last 6 months. In addition to an obligation to pay compensation, sporting sanctions may also be imposed on a club found to be in breach of contract or found to be inducing a breach during the Protected Period. It follows that FIFA will then ban the club from registering any new players, either nationally or internationally, for 2 entire and consecutive registration periods.
Frans de Weger

Chapter 11. Training Compensation

This chapter considers the concept of training compensation. In accordance with Article 20 of the RSTP, an amount for training compensation must be paid and is due by a new club to the player’s former training clubs when a player signs his first contract as a professional and on each transfer of a professional until the end of the season of his 23rd birthday (subsequent transfer) . In this chapter the main aspects related to training compensation and the applicable jurisprudence with regard to disputes relating to training compensation will be discussed. First, reference will be made to leading cases, such as the Bosman, Bernard and Wilhelmshaven cases. This chapter will also address under what conditions an amount for training compensation is not due. For example, pursuant to the RSTP, training compensation is not due if the former club terminates the player’s contract without just cause (without the right of the previous clubs), if the player is transferred to a category 4 club and in the event that a professional reacquires amateur status on being transferred. We will also note that an amount for training compensation is not due if the claim is prescript. A former club that claims for training compensation is obliged to lodge its claim within 2 years with FIFA, in the absence of which, the club waives its right to receive training compensation. Special attention will be given to the fact that within the EU/EEA, there is an extra requirement on whether or not training compensation is due. If the former club does not offer the player a contract within the EU/EEA under certain strict conditions, no amount for training compensation is payable by the new club unless the former club can justify that it is entitled to such compensation (bona fide interest). Parties often try to exclude the right of the former club(s) to receive training compensation. However, the jurisprudence is quite clear. Only the club which is officially entitled to receive training compensation may waive its right to training compensation. Any possible financial settlements concluded between the former club or the new club and the player cannot establish that the former club(s) loses its right to receive training compensation. In conclusion to this chapter, the completion of the training period will be discussed extensively. If it is evident that the player has terminated his training period before the age of 21, the player may have completed his training period as a result of which no training compensation is due as from the age that the training is completed. However, the DRC (and the CAS) are quite reluctant to establish that the training period of a player is terminated before the age of 21. Finally, we will also note that parties are free to request the DRC to reduce or increase the amount of training compensation based on this “clearly disproportionate rule”. All leading jurisprudence will be discussed extensively in relation to these subjects.
Frans de Weger

Chapter 12. Solidarity Mechanism

The solidarity mechanism entails that each time a professional is transferred before the end of his contract, a solidarity contribution is due by the new club to all the clubs for which the player played between the age of 12 and 23. The solidarity mechanism is only due if the player moves during the course of his contract. In this chapter all relevant issues relating to the solidarity mechanism will be discussed. It is the responsibility of the new club to calculate the amount of the solidarity contribution and to distribute it in accordance with the player’s career history as provided in the Player Passport. The DRC refers to its well-established jurisprudence, in accordance with which the player’s new club is ordered to remit the relevant proportion of the 5 % solidarity contribution to the clubs involved in the player’s training. In other words, following numerous DRC decisions, it is a general rule that it is only the new club which is entitled to distribute the amount of solidarity compensation to the relevant former clubs of the player. Even if this obligation is transferred to another club, the new club will still remain liable in any event. The provisions of loan are also subject to the same rules that apply to the transfer of players, including the provisions on the solidarity mechanism. If the player is on loan, the loaning club is entitled to receive a solidarity contribution. Under certain circumstances a solidarity contribution must be paid despite the fact that a transfer compensation is not due. If parties agree upon a mutual exchange of obligations, without providing for payment of any compensation, for example to exchange 2 players, the DRC is of the opinion that the exchange of players can indirectly imply a financial agreement, in view of the fact that the sports qualities of the players have an economic value in the football employment market.
Frans de Weger

Chapter 13. Final Conclusions

After having analysed and discussed the most relevant DRC decisions since 2002, following a classification of the most relevant subjects, over the last few years, the DRC decisions contain better and more extensive and consistent deliberations. Divergent case law of the DRC is quite rare nowadays. In recent years the DRC Judge is also more involved. Due to the development in and existence of well-established jurisprudence by the DRC, national laws seem to be less relevant. The DRC regularly makes reference to its well-established jurisprudence, sometimes to leading CAS awards and sometimes to Swiss law. There is a more consistent line with regard to the most important issues that the DRC has to deal with. Obviously, the creation and existence of a well-established international football jurisprudence is a highly time-related process, since the DRC has been in existence since 2001. We have noted that the DRC sometimes creates its own sort of law, the so-called “specificity of sport”, as mentioned in the RSTP, which can also be characterised as Lex Sportiva. The Lex Sportiva will be discussed in this chapter.
Frans de Weger

Backmatter

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