A CAS panel may examine the issue whether the FIFA Dispute Resolution Chamber (DRC) had jurisdiction over an horizontal dispute even if the appellant has not summoned FIFA as a respondent in the CAS proceeding. If FIFA feels that in a given CAS case it has some matter of principle to look after or some interest at stake, FIFA is always entitled – when not summoned by the appellant – to intervene as a party or, with the agreement of the Panel, as an amicus curiae (pursuant to Articles R41.3 and R41.4 of the CAS Code). However, FIFA’s choice to stay absent from a CAS appeal proceeding deriving from the horizontal dispute – having been informed of the appeal – does not prevent the appointed CAS panel from addressing all relevant issues with full scope of review and, eventually, from adjudicating the horizontal dispute at hand.

FIFA Regulations and Swiss law do not provide a specific, explicit definition of a “pre-contract”. This notion is however well known in legal practice and is defined as the reciprocal commitment of at least two parties to enter later into a contract, a sort of “promise to contract”. The clear distinction between a “pre-contract” and a “contract” is that the parties to the “pre-contract” have not agreed on the essential elements of the contract or at least the “pre-contract” does not reflect the final agreement. On the contrary, if the interpretation of the “pre-contract” leads to the conclusion that the parties agreed on all the essential elements of the final contract, on the basis of the general principles applicable to the conclusion of a contract as defined under Article 1 et seq. of the Swiss Code of Obligations (SCO), the “pre- contract” would be nothing else but the final contract.

Obligations deriving from a “pre-contract” are not as strict as they are in a definite employment contract. However, this does not mean that a party is entirely free to detract itself from the obligations that transpire from the conclusion of a “pre- contract”. Determining otherwise would mean that the “pre-contract” wouldbasically have no value at all.

The scope of article 17(1) of the FIFA Regulations on the Status and Transfer of Players is not limited to definite employment contracts, also the compensation for breach of a “pre-contract” can be calculated on this basis. However, just like the obligations deriving from a “pre-contract” are not the same as those deriving from a definite contract, the damages resulting from a breach of a “pre-contract” are not the same either. Indeed, the damages incurred in case of a breach of a “pre-contract” aregenerally lower as one needs to be conscious that there is still a chance that no definite agreement will come about.