Limits to the joint and several liability principle in football disputes - An analysis of the latest CAS jurisprudence

Limits to the joint and several liability principle in football disputes - An analysis of the latest CAS jurisprudence

The notion of “joint liability” was introduced in the 2001 edition of the FIFA Regulations on the Status and Transfer of Players (RSTP),[1] as a means to protect the interests of both clubs and players, while ensuring a spirit of solidarity within the football community. The main objective of the joint and several liability principle - codified since 2005 in Article 17(2) of the RSTP - is to ensure that the club at loss due to a player’s unjustified breach of contract obtains an additional guarantee that it will receive the relevant compensation from the new club of the player in question.

The jurisprudence of the FIFA Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sport (CAS) has consistently held that joint and several liability, established by Article 17(2) of the RSTP, is an automatic liability which the new club cannot escape, even if it bears no fault, guilt or negligence in a player’s unjustified breach of contract.[2] The Swiss Federal Tribunal (SFT) has further held that the joint and several liability principle is self-sufficient and does not, in and of itself, violate Swiss public policy.[3]
That notwithstanding, as with every principle, the jurisprudence has recently identified two situations in which Article 17(2) of the RSTP will not apply. These exceptions are addressed in this article.[4]

 
[1]        At the time, Article 14 of the Regulations governing the Application of the Regulations for the Status and Transfer of Players provided that the new club of a player who had been condemned to pay compensation for breach of contract was “jointly responsible” for such payment, in case the player would not pay the relevant compensation “within one month” after the relevant decision.
[4]        The authors appreciate that the award CAS 2013/A/3365 & 3366 in the arbitration between Juventus FC, Chelsea FC and Livorno Calcio appears to have set a limit on the application of the joint liability of the new club, i.e. when the party which chooses to end the contractual relationship is the former club. Nevertheless, that award was based on Article 14(3) of the 2001 RSTP, which was drafted in a different manner than the current Article 17(2) of the RSTP. As such, it is unclear whether that award would apply in a case where the latter provision is concerned.

 

As a preliminary matter, it is important to identify which club is to be considered the player’s new club for the purposes of Article 17(2) of the RSTP. According to the Commentary on the RSTP, the new club is - as a general rule - the first club for which the player registers after the contractual breach. However, this is not always the case. More precisely, the new club should be the club which benefits and/or profits from the player’s breach of contract, irrespective of whether the player was registered with it or not.[1] With that in mind, the following paragraphs will address two recent CAS awards which have set boundaries - one of a substantive nature and another of a procedural nature -...

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