23.02.2023

CAS 2020/A/7612 is an award offering interesting insights into the transfer market and the financial “tricks” of the modern football era.

Facts of the case

CANOB sold Player A to AS Roma for a fixed transfer fee and a sell-on fee equal to 40% of the transfer fee for the Player.

On 16 June 2019, ROMA and SPARTAK MOSCOW agreed on the transfer of Player A for a fixed transfer fee of EUR 3 million + variable fees limited to the amount of EUR 3 million on multiple conditions. They also agreed to a 20% sell-on fee in favour of ROMA, applying to the amounts that exceed the amount of EUR 6 million.

On 20 June 2019, ROMA and SPARTAK agreed to the permanent transfer of Player B for a transfer fee of EUR 3 million. Player B would play in SPARTAK ‘B’ and would receive a monthly salary of EUR 3,000.

Adapting the applicable standard of proof

As to the applicable standard of proof, Swiss Law applies, which in civil cases is “beyond reasonable doubt”.

Nevertheless, the Sole arbitrator also notes that Swiss Law is not blind vis-a-vis the difficulties of the parties when discharging their burden of proof. Accordingly, Swiss Law provides a number of tools in order to ease the – sometimes difficult – burden put on a party to prove certain facts. These tools range from a duty of the other party to cooperate in the process of fact-finding to a shifting of the burden of proof or to a reduction of the applicable standard of proof. The latter is, eg. the case if – from an objective standpoint – a party has no access to direct evidence (but only circumstantial evidence) in order to prove a specific fact. In such cases, the applicable standard is lower. The required threshold of conviction is reached in these cases if the Panel deems a fact to be so likely to have occurred that the occurrence of all other alternative courses of events cannot sensibly be accepted.

In the case at hand, the Sole Arbitrator acknowledges that there is only circumstantial evidence available to the Appellant to prove the facts it relies upon. Therefore, the Sole Arbitrator applied a lower standard of proof in the case at hand.

As regards the valuation of the Players, the Sole Arbitrator considered it important to pay attention to the Respondent’s actions regarding the valuation of the Player prior to his transfer to Spartak and, specifically, the value given by AS Roma to Player A. The loan transfer contract when the Player was loaned to a third club, recognised a purchase option in favour of the third club set at EUR 7,000,000 plus a 15% sell-on fee. Towards this direction, he also considered that, during the season preceding the transfer, Player A provided his best performance and therefore his value could have increased. Nevertheless, he also noted that the employment contract with ROMA would expire in only one season.

Considering everything, he found that the transfer fees agreed between the Clubs were lower than the real market value of Player A.

In relation to Player B, the Sole Arbitrator took into account that he was registered for Spartak’s second team, his monthly salary was relatively low and he signed only a two-year contract. Thus, he concluded that the transfer fee of EUR 3 million paid was far from the valuation of Player B, who later registered with a Serie C club.

Taking into account the aforementioned factors, as well as the timing of the two agreements and the payment deadlines, he concluded that there was a contractual simulation with the purpose of concealing the real transfer value of Player A. Concerning the calculation of the damages, the Sole Arbitrator took into account art. 42 para. 2 SCO, which introduces an exception to the general principle that whoever claims damages must prove the damage. When it is very difficult, if not impossible, to bring strict evidence of the damage, Art. 42 para. 2 SCO intends to mitigate the burden of proof. The claiming party is not freed from the obligation of submitting and evidencing the relevant facts but such obligation is limited to the allegation of all the circumstances indicating the existence of a damage.

According to the case law of the Swiss Supreme Court, the exception of Art. 42 para. 2 SCO applies not only for tort claims but also for contractual claims.

Calculation of damages

In order to calculate the damages suffered by the Appellant, the Sole Arbitrator considered the following factors:

1. The purchase option recognised in favour of a third club in July 2018, i.e., EUR 7,000,000 plus a 15% sell-on fee of the future transfer of Player A to a third club or EUR 6,000,000 plus a 30% sell-on fee of the future transfer of Player A to a third club.
2. The fact that the 2019/2020 season was the final season of Player A’s employment contract with AS Roma.
3. The previous season was his best season.
4. The sell-on fee of the Spartak transfer agreement was calculated at over EUR 6,000,000 without any condition.
5. The salary of Player A with Spartak.

Thus, the Sole Arbitrator considered that Player A would have been transferred to Spartak for a fixed amount of EUR 5,000,000 plus a variable fee of a maximum of EUR 3,000,000. Therefore, the Sole Arbitrator determined that the sell-on fee to be paid by AS Roma to CANOB as a result of the transfer of the player to Spartak amounts to EUR 2,000,000 which must be subtracted from the amount of EUR 1,200,000 that already has been paid by AS Roma to CANOB. Hence, the final amount should be EUR 800,000.