SEMINAR
Legal Sport & SILA
Frans de Weger
Legal Counsel
Dutch Federation of Professional Football Clubs (FBO)
STRUCTURE
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Background
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Introduction FBO
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International football related disputes
BACKGROUND
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Royal Netherlands Football Association (KNVB)
Book “The Jurisprudence of the FIFA Dispute
Resolution Chamber” & DRC Database
Since 2010 Senior Legal Counsel FBO
Legal advice and procedures KNVB, FIFA & CAS
Since 1 January 2015 appointed as CAS arbitrator
proposed by the European Club Association (ECA)
FBO
• Employer’s Organisation in Dutch football
• Founded in 1968
• Representation of all Ere & Eerste Divisie clubs (all
Dutch professional football clubs; 35 members)
• Independent. Not affilliated to KNVB, UEFA, FIFA
• Yearly contribution (€ 35,017.50 / € 13,272.-)
• Unlimited legal services for the Dutch professional
clubs (only 6 Dutch clubs have ‘inhouse lawyers’)
FBO
• Examples collective assistance:
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Collective bargaining agreement
Standard documents (transfer-, player-,
sponsor contracts, several letters, etc.)
Instruction books (training compensation and
solidarity contribution, unilateral extension
option, legal guideline for transfers, etc.)
Seminars/workshops for Dutch football clubs
FBO
• Examples individual assistance:
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Procedures (KNVB / FIFA & CAS)
Assistance collecting outstanding amounts for
training compensation/solidarity contribution
Requests for work and residence permits
Drafting contracts (transfer-, player-, etc.)
Individual visits clubs (new developments)
DISPUTES
At national level
The KNVB Arbitration Regulations:
“The disputes as mentioned in the KNVB Arbitration
Regulations shall, to the exclusion of the civil court,
be submitted to the KNVB Arbitration Tribunal”
DISPUTES
The KNVB obliges the players and clubs to insert
an “arbitration clause” in the player’s contract
(prerequisite in the “KNVB standard contract”)
If there is no “arbitration clause”: no registration of
the player’s contract will take place with the KNVB
DISPUTES
“Any dispute which may arise between the Employer
and the Employee pursuant to or in connection with
this employment contract shall be submitted for
arbitration by the KNVB Arbitration Tribunal to the
exclusion of an ordinary court of law, as provided for
in the KNVB articles of incorporation and regulations.”
DISPUTES
Parties must invoke the “arbitration clause”
Parties can decide to ‘skip’ the “arbitration clause”
and refer the matter to FIFA (if FIFA is competent)
See for example DRC of 31 October 2013, no. 10131629
DISPUTES
At international level
- Per year 10 cases before FIFA DRC (related
to training compensation and solidarity contribution)
- Per year 10 cases before FIFA PSC (related
to disputes between Dutch clubs and foreign clubs)
DISPUTES
At international level:
- Per year 1 or 2 cases before CAS
- During transfer periods: several disputes / issues
with foreign clubs, players and / or intermediaries
- Assistance clubs with transfers of minors to get the
approval of FIFA Players’ Status Sub-Committee
DISPUTES
Exchange of players:
- Currently interesting case pending before FIFA PSC
- In summer 2011 Dutch club signed a transfer
agreement with Welsh club for sell of Dutch player
- The transfer agreement contains a sell on clause:
Dutch club entitled to 30% of future transfer sum
DISPUTES
Exchange of players:
- In summer 2014 an exchange of players took place
between the Welsh and English premier league club
- 2 players (including Dutch player) transferred to the
English club and 1 player moved opposite direction
- No transfer compensation was paid to Welsh club
DISPUTES
Exchange of players:
- Claim for compensation based on sell on clause
- Dutch club starts procedure before FIFA PSC
- According to Dutch club: “exchange of players implies
indirectly a financial agreement since the qualities of
the players have a financial value”; DRC jurisprudence
DISPUTES
Training compensation:
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Training compensation validly waived?
Is the training period terminated before 21?
Valid contract offer in line with Art. 6 Par. 3?
DISPUTES
Example:
- Intermediary introduces player with Dutch club
- Dutch club: “Transfer free? Training compensation?
- Intermediary: “No compensation is due. The foreign
club will not claim any financial compensation”
- Player and Dutch club conclude a player contract
DISPUTES
- Shortly after conclusion of the contract the Dutch
club receives an invoice from foreign former club
- Dutch club asks FBO to solve this matter
- Substantial amounts (€ 200,000.- / € 250,000.-)
- Lost cases; Try to reach an amicable settlement
DISPUTES
It is of utmost importance to realize that only former
club is entitled to waive right for training compensation.
Any possible financial settlements concluded with any
other parties (intermediary, player, etc.) cannot in any
sense abolish the former club’s entitlement to training
compensation. Important to sign a valid WAIVER.
DISPUTES
Termination training period of the player:
A player’s training takes place between the ages of
12 and 23 for training incurred up to the age of 21,
unless it is evident that a player has already
terminated his training period before the age of 21.
DISPUTES
Recent dispute regarding training period:
Foreign club sents invoice for training compensation in
the amount of € 300,000.-. Dutch club refuses to pay
because it is of the opinion that the player had already
terminated his training period before the age of 21.
Based on settlement proposal and legal opinion of ECA
parties concluded an amicable settlement: € 75,000.-
DISPUTES
Recent example Art. 17.2 (jointly liability):
- Player was registered with foreign club
- Player terminated contract with foreign club
- Intermediary introduces the player with Dutch club
and requests Dutch club to let him train with the club
- Dutch club agrees and accepts him to train
DISPUTES
- Due to the well performances of the player during
training sessions with the Dutch club, the Dutch club
and the player finally conclude a player’s contract
- Shortly after the conclusion of the contract, the Dutch
FA informs the Dutch club that a FIFA case is pending
whereby the foreign club claims compensation from
player due to breach of contract without just cause
DISPUTES
- The foreign club claims the new Dutch club is jointly
and severally liable to pay compensation in line
with Article 17.2 RSTP and requests for sporting
sanctions for the Dutch club due to its inducement to
breach the contract during the Protected Period
- Till sofar, players won their cases before FIFA
- Dutch clubs have to do more research in this respect
DISPUTES
Disputable clauses:
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Relegation clauses
Unilateral extension options
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‘Dutch view’ (KNVB Arbitration Tribunal) not
always in line with FIFA / CAS jurisprudence
DISPUTES
Relegation clause:
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KNVB Arbitration Tribunal: relegation clause is not
valid (this was indirectly decided in one case)
Relegation clause has a ‘potestative character’
Currently a case is pending before FIFA DRC
Better chances for Dutch club in FIFA procedure
DISPUTES
Relegation clause:
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Reference is made to DRC jurisprudence (DRC 10
August 2007, no. 87677, DRC 18 June 2009, no.
69311, DRC 10 May 2012, nos. 5121238 and
5121239 and DRC 7 February 2014, no. 0214233)
and CAS jurisprudence (see CAS 2008/A/1447)
DISPUTES
Relegation clause:
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DRC jurisprudence: the condition of the relegation
of a club is not a potestative condition, since such
relegation is depending on other circumstances
than the will of a party to the employment contract.
• DRC committees seem to have different approach
DISPUTES
Unilateral extension option:
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KNVB Arbitration Tribunal: unilateral extension
option is valid (this was decided in two cases)
In the most recent case (“Letschert-case”): duration
of the original contract was 5 months and the
duration of the extension period was 2 years
DISPUTES
Player’s point of view: unilateral extension option is
not valid because the extension period of the contract
(2 years) is not proportional to the main contract (5
months) whereby the extension period exceeds the
duration of the original contract in an excessive way
DISPUTES
• KNVB Arbitration Tribunal: validity depends on the
particular facts of the case (there was no future for
player with the former club) and the clause did not
limit the freedom of a party in an excessive manner.
• View of KNVB Arbitration Tribunal not in line with
international jurisprudence of FIFA DRC and CAS
(see also ‘recent’ CAS case: CAS 2013/A/3260)
DISPUTES
Legal advice Dutch clubs:
• Substantial salary increase (‘new’ salary is laid
down in the player’s contract); minimum: 25-50%
• Player must be aware of the unilateral option
(assistance intermediary/or lawyer? / explicitly laid
down in contract? / place contract?; not in annexes
• Is the option lifted in time?: before 31 March!
DISPUTES
• Maximum duration may not be excessive
(original duration contract + ‘option period’ < 5 years;
‘option period’ may not exceed the duration of the
original contract; not several options in contract)
• Special circumstances of the case are decisive
(behaviour player after option is invoked / earlier
acceptance other options / invoked in order to create
a higher and to increase the transfer compensation?)
DISPUTES
EXAMPLE 1: Dispute Dutch club and foreign club
Club A (Dutch club)  player  Club B (foreign club)
“In case the Player has played in 20
matches for Club B, Club B will pay to
Club A the amount of € 400,000.-.”
DISPUTES
• Does ‘played’ only refer to ‘starting line up’ (first
eleven)? Or does it also include ‘substitutions’?
• Does “matches” only refer to ‘official matches’?
What is ‘official matches’? Does it also include
‘trial matches’ or only matches in national
competition? International competitions, etc.?
DISPUTES
EXAMPLE 2: Dispute Dutch club and foreign club
Club A (Dutch club)  player  Club B (Foreign club)
“Club A is entitled to receive an additional
amount of € 1,000,000.- in case Club B
wins the national championship insofar as
the Player is in the services of Club B.”
DISPUTES
• What do the words “in the services” mean?
• Wat if the Player was loaned during that period by
Club B to Club C? Is the Dutch club A entitled to
receive € 1,000,000.- from Club B? Or, is the Dutch
club A only entitled to receive this amount as long
as the Player was actually registered with Club B?
Contact details
FBO
Mr. Frans M. de Weger
Telephone: +31624554566
Email: [email protected]