Islj 2009 3-4 - TMC Asser Instituut

compensated for the income it could have conceivably obtained from
missed transfer fees. Palermo, it should be recalled, had offered a
transfer fee of US $7 million, in June 2007 (or approximately €5.2,
given exchange rates at the time) 37 in an unsuccessful attempt to
obtain Matuzalem’s services. The CAS said
Even admitting that under the present specific circumstances no
direct damage was suffered by Shakhtar Donetsk because of a potential
but never concretized transfer, the Panel…will take such an offer
into due consideration as an additional element to establish the
value of the services of the Player and the loss caused by the Player
to Shakhtar Donetsk through the termination of his contract. At the
same time based on the specific circumstances of this case, the Panel
is satisfied that Shakhtar Donetsk is not in a position to claim the
amount USD 7 mio. as compensable loss of profits. 38
It is difficult to follow the CAS’s thinking on this matter - something
which should be considered ‘as an additional element’, which at one
and the same time is something that the club ‘is not in a position to
claim’ - and will be a source of frustration for other parties in future
cases in seeking guidance on how to proceed and/or what to expect.
The CAS concluded the income that Shakhtar Donetsk avoided
paying Matuzalem following his unilateral termination - a sum of €2.4
million over the two years remaining on his contract - should be
deducted from whatever amount it should receive as way of compensation
39
Shakhtar Donetsk paid Brescia a transfer fee of €8 million to obtain
the services of Matuzalem. 40 The CAS ruled that the non-amortised
value of the transfer fee - 2/5 of the fee which equalled €3.2 million -
should be incorporated in its decision. 41 The CAS then, as it had with
the Palermo transfer fee, found a reason for its non inclusion as part
of the compensation payout. It said
since in the present case the Panel was able to calculate the value of
the lost services of the Player at the moment of the breach and on
the basis of convincing evidence, and taking into consideration
that within such value of the lost services the value of the fees to
acquire such services has been incorporated, there is no reason to
add to such value the amount of the non-amortised fees of
Shakhtar Donetsk 42
The CAS rejected Shakhtar Donetsk’s submission that it should be
compensated for solidarity payments (payments made to clubs who
contributed to the training of players who move to another club
before the expiry of their contracts), 43 as it could have deducted such
payments to Brescia when it secured Matuzalem’s services, and if it
did not, this was due to its own decision making. 44 The CAS also concluded
that payments Shakhtar Donetsk paid to agents in securing
Matuzalem were part of the costs clubs experienced in obtaining players
and were not compensable. 45
The CAS also considered whether Shakhtar Donetsk should be
compensated for the costs of finding a replacement player. Shakhtar
Donetsk obtained a player who played in the same position as
Matuzalem, midfield, for a transfer fee of €20 million. The CAS
found that the club had not demonstrated to its satisfaction that the
player and the transfer fee paid ‘were linked to the gap left’ by
Matuzalem ‘or that the costs of hiring’ the replacement ‘have been
somehow increased by the termination of the Player.’ 46
The CAS turned its mind to Shakhtar Donetsk being compensated
for costs incurred in training Matuzalem. It ruled against providing
such compensation and was ‘appreciative that Shakhtar Donetsk
did not seek to build up fictive 47 figures and did not submit that it
had made any particular investments in the training or formation of
Matuzalem.’ 48 The reason why Shakhtar Donetsk made no submissions
on training costs is because under Annex 4 of the FIFA Statutes
they are precluded from doing so. Article 1.1 of Annex Four says
‘Training Compensation shall be payable, as a general rule, up to the
age of 23 for training incurred up to the age of 21’. 49 Matuzalem was
27 when he unilaterally terminated his contract. In considering this
issue the CAS has exposed its ignorance concerning the operation of
the FIFA Statutes.
Matuzalem terminated his contract just before the start of the qualifying
rounds of the UEFA Champions League. The CAS found that
his departure harmed the club and, without providing any reasoning
on how it reached its decision, concluded that Shakhtar Donetsk was
entitled to additional compensation of six months of his salary; a figure
of €600,000. 50 The rules governing the operation of the DRC, the
body whose decisions are appealable to the CAS, require it to include
‘reasons for its findings’. 51 If a ‘lower court’ such as the DRC is
required to provide reasons for its decisions it seems reasonable to
expect that such a standard should be applied to the ‘higher court’
responsible for appeals and the overall governance of the jurisdiction.
On this matter the CAS seems to have abandoned a responsibility
that it should have performed.
The factor that played the major part in the CAS’s determination
was the option clause contained in the loan agreement negotiated
between Real Zaragoza and Lazio signed on 17 July 2008. It maintained
that transfer fees offered for a player ‘reflect or at least bring
some additional information on the value that a third party (and possibly
the market) is going to give to the services of the player at
stake’. 52
Lazio had an option to takeover Matuzalem’s employment contract
for a sum of €13 - €15 million. 53 It maintained that, together with the
income that the respective clubs were prepared to pay Matuzalem, as
represented by the respective contracts they had entered into with
him, provided the best guide as to the compensation that should be
paid to Shakhtar Donetsk. The CAS found that Lazio in obtaining
the services of Matuzalem was prepared to pay him his contracted
salary plus an average transfer fee of €14 million; a total of €21,336,880.
The value of Matuzalem, for Real Zaragoza, was the €14 million transfer
fee and lower contracted payments for a total of €19,640.000. 54
The CAS went on to say
the Player had a valid contract with Shakhtar Donetsk with a
remaining duration of two years. By applying the total costs of SS
Lazio and Real Zaragoza to a period of two years, the value is
approx. EUR 14,224,534 and approx. EUR 13,093,334, respectively.
55
37 Monthly Average Graph (Euro, American
Dollar) 2007, http://www.xrates.com/d/EUR/USD/hist2007.html
,
accessed 23 June 2009.
38 Paragraph 121 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
39 Paragraph 124 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
40Paragraph 6 of the Court of Arbitration
for Sport, The Matuzalem Decision, 19
May 2009.
41 Paragraph 127 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
42 Paragraph 131 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
43 Article 20, Federation International de
Football Association, Regulations for the
Status and Transfer of Players [1 July 2005].
44 Paragraph 128 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
45 Paragraphs 129 and 130 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
46 Paragraph 138 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
47 An alternative word would be fictitious.
48 Paragraph 143 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
49 Article 1, Annex Four, Federation
International de Football Association,
Regulations for the Status and Transfer
of Players [1 July 2005].
50 Paragraph 178 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009. Also see paragraphs
172 and 173.
51 Article 13.4 (f), Federation International
de Football Associations, Rules
Governing the Procedures of the Players’
Status Committee and the Dispute
Resolution Chamber [1 July 2005].
52 Paragraph 104 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
53 Paragraph 20 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
54 Paragraph 107 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009. That is €1 million
for the 2007/2008 season and
€2,320,000 for both the 2008/2009 and
2009/2010 seasons. Note the inclusion
here of payments for three seasons.
55 Paragraph 108 of The Court of
Arbitration for Sport, The Matuzalem
Decision, 19 May 2009.
A RT I C L E S
2009/3-4 23