ISLJ 2008-1-2_Def - TMC Asser Instituut

decide whether or not any provisions of Scottish law should beapplied in determining the level of compensation. 18 Finally, the CASdid not rely on any provisions of Scottish law in determining the levelof compensation.Following the CAS decision in the Webster case the circumstancesunder which this discretion exists were absolutely unclear. Althoughthe CAS is permitted to deviate from national law, in my opinion ittoo easily set aside all provisions of Scottish law which were raised byHearts. 19 The CAS is right when it says that it is in the interest of footballthat solutions to compensation must be based on uniform criteriarather than on provisions of national law that may vary considerablyfrom country to country. 20 However this does not mean that thePanel is always free to determine under what circumstances nationallaw is applicable and prevails. I believe the CAS should provide judicialhandholds in order to impart more legal certainty on this point.This area of tension between RSTP rules and national laws hasalways been a hot topic following earlier CAS and DRC decisions.The eternal question is: what law prevails where there is inconsistency?According to several CAS and DRC decisions, RSTP rules sometimesprevail over national law. One might generally say that, accordingto CAS and DRC decisions, a divergence is justified where thereis inconsistency in so far as national law is not mandatory and in sofar as RSTP rules pursue a legitimate objective. 21 I believe the CASwas authorised to set aside Scottish law to the extent that it concernedprovisions which were not mandatory, and to the extent that thisdeviation pursued a legitimate objective. For example, in its‘PSV/Leandro do Bomfim’ decision, the CAS stated that PSV had notdemonstrated that Dutch law or any other law applicable to the 2001contract or to the merits of the dispute submitted to FIFA and objectionsto decisions issued by its bodies, would prohibit Leandro frombeing transferred from PSV to a foreign club. 22 In other words, if PSVhad been able to underline that according to mandatory national law,Leandro should be prohibited from transferring from PSV to a foreignclub, then this mandatory national law would prevail. In linewith the Leandro case, one can say that the RSTP rules might prevailin so far as the national law is not mandatory. It is outside the scopeof this article to discuss whether certain provisions of Scottish law aremandatory, but in any event the CAS set aside national law too easilyby simply stating that the Panel ‘will not rely on Scottish law’. 23 Inmy opinion the CAS was permitted to set aside Scottish law, but ithad to examine whether certain provisions were mandatory. Secondly,one might seriously wonder whether CAS’s divergence pursued alegitimate objective. One might say, given that the CAS underlined itas an important factor in deciding not to follow Scottish law, that itis in football’s interest that compensation solutions be based on uniformcriteria rather than on provisions of national law that may varyconsiderably from country to country. 24 This is right in my opinion,but, as noted above, it can be seriously wondered whether the CAS’sdivergence pursued a legitimate objective. For example, in the procedurebrought before the CAS between ‘Acuña and Cádiz v. FIFA andthe Associacion Paraguaya de Futbol’, the Panel decided that the contestedFIFA rules limiting the international transfer of players underthe age of 18 did not violate any mandatory principle of public policy(‘ordre public’) under Swiss law or any other national or internationallaw, in so far as they pursue a legitimate objective, namely theprotection of young players from international transfers which coulddisrupt their lives, particularly if, as often happens, their footballcareer eventually fails or fails to have the expected success.Accordingly the Panel considered that FIFA rules on the protection ofminors were valid. 25 The protection of minors is such an extremelyimportant point for FIFA that they believe that the RSTP should takepriority over certain national laws. In my opinion it is defensible thatto the extent that these rules pursue a legitimate objective, for exampleprotecting players under the age of 18 from being excluded frommaking an international transfer, as well as the restriction on the maximumlength of three years of their employment contracts, that therules of FIFA prevail above national laws. But is the transfer compensationso important that CAS was entitled to set aside Scottish law? Ibelieve this goes too far, because transfer compensation is not such avital point for FIFA that the CAS is not justified in diverging fromrelevant national law. The CAS also set aside Scottish law too easily atthis point. The CAS therefore reached the conclusion too easily thatthe remaining value is the only element.Another important factor in proclaiming that the remaining valueshould not be the only decisive element in establishing the amount ofcompensation, is of more material existence. Wigan and Websterclaimed it was Hearts that treated the player unfairly and that theCAS had to regard this as a material factor when determining the sumof compensation due to Hearts. In the Webster case the Panel alsoexamined the existence of any aggravating factors. But it was not convincedthat the concept of aggravating factors or of contributory negligenceare legally relevant or applicable to the calculation. In theWebster case the CAS decided that this legal question can be left openbecause the Panel found there was no sufficient evidence that eitherparty (Hearts or the player) in fact had ill intentions or had misbehavedin their attitude regarding each other. 26 I would say that it islegally relevant whether aggravating circumstances exist. I believe thatif a player is relegated to the bench if he does not want to extend hiscontract, this is legally relevant since the club then partially waives itsrights to claim a substantial compensation sum at a later stage. 27 Thiswould also benefit football because clubs will be more reluctant toconsign a player to the bench should he not cooperate with an extensionof his contract, given that this could now have an impact onpotential transfer compensation. It is common practice in the inter-country where the club is domiciled arerelevant.18 See grounds for the decision no. 126.19 According to Dutch labour law, partiescannot unilaterally terminate a contractfor a definite period of time, unless thisis provided for in the contract. Websterunilaterally terminated his contract (for adefinitive period of time) after the protectedperiod without having a writtenunilateral clause in his contract. For thatreason it can be said that the Webster terminationis not in line with Dutch law.However, premature termination of acontract for a definitive period of timewithout being provided with a unilateraltermination clause, does not affect thevalidity of the termination, but leads tothe result that the party who terminatedthe contract will be liable for damages. Itcan therefore be concluded that contractsfor a definitive period can be terminatedby either party, but that the terminationwill result in an issue of damage liability.In the Webster case, he still had to paycompensation for his termination. It isthus a too-strict interpretation to underlinethat the Webster case at this point isnot in line with Dutch national law.20 See also CAS 2005/A/983 &984 “ClubAtletico Penarol v Carlos Heber BuenoSuarez and Christian Gabriel RodriquezBarotti & Paris Saint Germain”, as wasreferred to by Webster. In this case it wasconsidered that the principle of the universalapplication of FIFA rules - or anyother international federation - meets therequirements of rationality, safety andlegal predictability.21 See the following decisions in which thisarea of tension surfaces. CAS 2003/O/530“AJ Auxerre v. Valencia and M. Sissoko”,decision of 27 August 2004. CAS2005/A/835 & 942, “PSV N.V. v. FIFA &Federaçao Portuguesa de Futebol” and“PSV N.V. v. Leandro do Bomfim &FIFA”, decision of 3 February 2006. CAS2005/A/955, “Cádiz C.F., SAD v. FIFAand Asociación Paraguaya de Fútbol” andCAS 2005/A/956, “Carlos Javier AcuñaCaballero v. FIFA and AsociaciónParaguaya de Fútbol”.22 CAS 2005/A/835 & 942, “PSV N.V. v.FIFA & Federaçao Portuguesa de Futebol”and “PSV N.V. v. Leandro do Bomfim &FIFA”, decision of 3 February 2006.23 See grounds for the decision no. 130.24 See grounds for the decision no. 64which refers to the decision CAS2005/983 & 984 between “Club AtleticoPenarol v Carlos Heber Bueno Suarez andChristian Gabriel Rodriquez Barotti &Paris Saint Germain”.25 CAS 2005/A/955, “Càdiz C.F., SAD v.FIFA and Asociación Paraguaya deFútbol” and CAS 2005/A/956, “CarlosJavier Acuña Caballero v. FIFA andAsociación Paraguaya de Fútbol”.26 See grounds for the decision no. 110.27 I see a parallel with a club’s right to receivetraining compensation. Within theEU/EEA there is an (extra) exception thatif the former club does not offer the playera contract, no training compensation ispayable unless the former club can justifythat it is entitled to such compensation.See also Circular 769 dated 24 August2001. Moreover, it is a prerequisite thatthe former club then offers the player acontract in writing via registered mail atleast 60 days before the expiry of his currentcontract. See RSTP, edition 2005,Annex 4, Art. 6 Para. 3. It is importantthat this offer is at least of equivalent valueto the current contract. In the event thatthe former club does not offer the player acontract and it did not fulfil the aforementionedrequirement with respect to the ‘60days term’, this leads to a situation wherethe former club with which the player wasregistered loses its entitlement to trainingcompensation. See RSTP, edition 2005,Annex 4, Art. 6 Para. 3. In my opinion aclub should lose a substantial part of thecompensation should the player be put onthe bench to force him to sign.22 2008/1-2ARTICLES