Player of Free Agent, Beautiful Trap
----Legal Risks During Transferring (II)
Just as lovers being in the relationship cannot stand that his/her sweetheart still has relation with ex-friend, certainly a club does not want to see that its player is still entangled with his former club after it chooses the player.
In general, if the player joins the new club in a manner of signing the transfer agreement with the new and former club, both clubs shall negotiate the issue of transferring the player’s rights and interests in order to avoid the former club from keeping claiming the player’s rights and interests. However, if the player is transferred without the former club’s participation, whether the former club shall claim the player’s rights and interests in the future or not, which further affects the benefits of the new club? A great uncertainty exists hereof.
Perhaps, some players or their agents may make a guarantee to the new club that the player is a free agent and not contracted with former club, so there is no need of the former club to intervene the player’s own transaction. However, the new club shall not easily believe in one-sided statement, but take necessary measures to verify the specific reason why the player terminate the Employment Contract with his former club under such circumstances. Otherwise, legal risks might exist. Pursuant to the relevant Regulations of FIFA and Chinese Football Association, such risks are as follows: If the player terminates the contract concluded with his former club without just cause, then the new club signing the player shall be deemed as “inducing the player to commit a breach” and shall be jointly and severally liable for paying compensation to the former club. Besides, different sporting sanctions shall be imposed on the new club if the player is in the protected period.
In 2014, a famous domestic Football Club A entrusted Shanghai Harvest Sight Law Firm to evaluate the existence of risks as for introducing a Brazilian player. The player claimed that due to the former club’s long-term default for his salaries, he had terminated the contract with his former club. Through reviewing the reasons for terminating the contract at that time, the proceedings and files, the opinion that our club gave out is that Club A may sign with the player since his stated facts and the provided files initially confirmed that he had just cause to terminate the contract with his former club, but risks of transferring cannot be completely excluded. Such “risks” are mainly the evidence factors lied in or shall take place in the arbitration stage. In other words, if the player's former club files an arbitration and provides evidences that are not conducive to the player, and court is therefore satisfied convinced that the player terminated the contract without just cause, thus Club A shall bear responsibility for inducing the player to commit a breach. But after a comprehensive consideration,the possibility of the adverse consequences is very slim.
According to the opinions of our firm, Club A is determined to sign contract with the player and simultaneously ready for the appeal claimed by the player’s former club. As expected, in April 2014, after the player filed an arbitration requesting for the payment of salaries by the former club, the former club also filed counterclaim against the player, claiming that the player terminated the contract without just cause, and declared club A jointly and severally liable with the player to pay compensations, and announced appropriate sanctions of banning Club A from registering new players. (CAS 2015/A/4081, CAS 2015/A/4087). Shanghai Harvest Sight Law Firm represented Club A to participate in all arbitration proceedings. After two hearing stages of FIFA and CAS, Arbitration court of CAS eventually concluded that the player didn’t constitute a termination of contract without just cause, and it’s unnecessary for Club A to bear any liabilities or imposed sanctions of suspension, and the court even further upholds Club A’s claim for contribution towards the legal fees and other expensive in connection with arbitration proceedings from the former club and other claims. We may say, claims of Club A is fully upheld in this case, which in turn demonstrates all pre-judgements made previously by Shanghai Harvest Sight Law Firm.
As the saying goes“preparation may quicken the process”, if the club is willing to evaluate the risks of transferring in advance with the aid of external professional legal services, the club itself may achieve predominance step by step. On the contrary, a rushed signing lack of accurate pre-judgement might lead to the risks that the loss outweighs the gain.
