Islj 2009 3-4 - TMC Asser Instituut

4 See also in support of this argument, the
discussion of the rule that different
words or expressions indicate different
meanings and the rule that there are no
superfluous words in a contract, and, by
analogy, a legal regulation or, indeed,
any legal text requiring interpretation, in
Professor Steve Cornelius’s Book on
Principles of the Interpretation of
Contracts (LexisNexis, SA, 2nd ed, 2007)
at pp 121 and 122 (cited with approval in
the Provincial High Court in
Johannesburg, South Africa, judgment in
the case of Birkenruth Estates(Pty)Ltd v
Unitrans Motors (Pty) Ltd [2005] 3 All
SA 128 (W)).
the cases of both national and international transfers. Therefore, it is
not legally necessary to make any specific provision on this subject.
Furthermore, article 1.3 does not indicate as binding at the national
level also the provisions of the Regulations on jurisdiction and it
would be absurd to accept that the latter provisions are not binding at
the national level.
To deny the binding nature of the solidarity mechanism established
under the Regulations at the national level would further undermine
the nature and the essence of the principle of solidarity. The solidarity
mechanism was designed, as previously mentioned, to fill in the
gap between the rich and the poor clubs, which gap threatens the
competitive balance and the ‘level playing field’ for football clubs
worldwide. In other words, to ensure financial fair play between
clubs.
Furthermore, the obligation for payment of solidarity contributions
is not dependent on whether the player moves from one country
to another: it always goes with the player when he moves either
internationally or within one country. Conceptually, the investment
is made in the player and also the principle/objective of the solidarity
mechanism is to maintain a competitive balance between football
clubs, and this applies nationally and internationally - the leagues are
national and international - without any discrimination between
them. In other words, the solidarity contribution attaches to and
moves with the player from club to club - it is a kind of ‘financial baggage’
that the player carries with him and is not dependent on an artificial
distinction between an international and a national transfer. It
moves with the player wherever the player goes, as clearly and
unequivocally stated in Article 21: “If a professional is transferred
before the expiry of his contract….”. The only qualification in this
Article is one of time; not of place!
Finally, if the FIFA legislator had wanted to make it clear that the
solidarity mechanism does not apply in the case of a transfer between
clubs belonging to the same national associations he should have simply
stated this explicitly in the Regulations and/or their annexes,
which are an integral part thereof. However, he stated explicitly just
the opposite - that the solidarity mechanism applies whenever a player
moves in the course of his contract. At the same time, the so-stated
rule is opposed on the ground of flawed reasoning and erroneous
interpretation of other provisions of the Regulations. For instance,
Article 21 of the Regulations could have expressly stated that a solidarity
contribution is only payable in accordance with the provisions of
Art1.1. Or could have stated that “Subject to and in the circumstances
foreseen in article 1.1. and without prejudice to article 1.3., if a professional
is transferred before the expiry of his contract, any club that has
contributed to his education and training shall receive a proportion of
the compensation paid to his former club (solidarity contribution)”.
No such qualifying phrase or provisions apply. It follows, therefore,
that Art. 21 may not be interpreted restrictively. In other words, in a
way that excludes national transfers from the solidarity contribution
as the Respondent claims. In other words, under the ‘contra proferentem’
principle of interpretation, the provision is construed against
the party seeking to include a restriction or a limitation in an otherwise
clear and unqualified provision, on the basis that, if that meaning
had been intended, the draftsman could have - and, indeed,
should have - included such restriction or limitation.
It is also a basic principle of legal interpretation that different
expressions denote different meanings. In Article 1.1, the expression
“international transfer” is used and this expression recurs in other
Articles. It is significant that Article 21 refers only to a “transfer”.
This indicates that the drafters of Article 21 had all transfers in mind
and not only international transfers. This argument is supported by
the general principle of interpretation that there is no redundancy in
a legal text and that effect should be given to each and every word in
the text. If “transfer” in Article 21 should be interpreted to refer to
international transfers only, the word “international” in, for example,
Articles 9 (International Transfer Certificate) and 19 (Protection of
Minors) would serve absolutely no purpose whatsoever and, therefore,
be redundant. This is not legally tenable from an interpretation
point of view. 4
Concluding Remarks
It is a great pity that, for the reasons already mentioned, CSKA Sofia
were not able to proceed with their claim for a solidarity contribution
in the FIFA DRC and even, if necessary, on appeal to the CAS itself,
as, in the opinion of the authors of this article, the issues regarding the
interpretation of the FIFA Regulations on the Status and Transfer of
Players raised in this article would have been given a thorough airing
and the previous erroneous - and, indeed, unfair - interpretation and
application of the Regulations to international transfers only would
have been corrected.
It is to be hoped, therefore, that - before too long - someone of the
calibre of Maitre Jean Louis Dupont (of Bosman and other groundbreaking
football cases’ fame) would take up the cudgels on behalf of
another claimant football club for a solidarity contribution in relation
to a national transfer of a leading player and thereby lay to rest this
‘received’ but entirely unjustified and unjust interpretation of the
FIFA Regulations - once and for all!
Or is that too much to hope for?
❖
NINTH ASSER INTERNATIONAL SPORTS LAW LECTURE
Sports Betting Policy in a European Legal Perspective:
Freedom of Services versus General Interest
T.M.C. Asser Institute, The Hague
16 September 2009
Chairman: Alan littler, Law Faculty, University of Tilburg
Speakers
- Tjeerd Veenstra, Director of the Dutch Lotto and Member of the Executive
Committee of European Lotteries
- Joris van Manen, Partner, De Brauw Blackstone Westbroek Law Firm,
Amsterdam
- Professor John Wolohan, Ithaca College, Ithaca, New York
- Genevieve Gordon, Birkbeck College, London University
A RT I C L E S
2009/3-4 17