International football players transfers

The reference standards, the main issues and related litigation

International football players transfers

The framework of international transfers has significantly changed in recent years. In the past footballers moved mainly from South America to Europe, today transfers involve every part of the world. This expansion of the transfer market requires specific knowledge of the FIFA regulations, as well as the need to make use of legal advisors with an international vocation.

The evolution of the international transfer market requires continuous professional updating, due to the frequent change in the rules and new market issues and needs. In fact, there are many profiles that are relevant - both in the negotiation of the agreements and in the pathological - in the international transfer of players and this makes the consultancy field as specialized as ever. The regulation of transfer contracts is left to the autonomy of the parties but the freedom to negotiate must be subject to numerous limits, primarily those deriving from the statutes and regulations of FIFA.
Consider, for example, the numerous cases of unfinished transfers due to problems arising during medical examinations.According to the art. 18.4 of the "Regulations on the Status and Transfers of Players" (RSTP), the validity of the employment contract between the new club and the professional footballer cannot be subject to passing medical examinations, however, this prohibition does not apply to the contract transfer of the player underwritten by the two clubs, whose validity may well be conditioned by the passing of medical examinations (in this sense the sectoral jurisprudence). In this regard, it will be a good idea to have the transfer contracts between the clubs signed by the players, so that the purchasing club can submit the athlete to medical examinations before signing the actual employment contract.

Then there were frequent transfers in which problems arose regarding the sending of the ITC (Inter-national Transfer Certificate), a document attesting to the transfer of the player from one national Federation to another. To overcome this, the completion of the transfer may be conditional on the issuance of the ITC by the expiry of the market window. Furthermore, peculiar problems arise in the context of the transfer of minors. The article. 19.1 RSTP states the general principle that the international transfer of the player is allowed only if the latter has reached the age of 18. However, express exemptions are provided if: parents move to the country for reasons independent of football; the transfer takes place within the EU or at the age of 16 (in this case the new club must fulfill certain obligations); that is, the footballer lives in a border location. Furthermore, the international transfer of players can also have effects on third-party clubs. The reference is to the recognition of training compensation ("Training Compensation") and of the solidarity contribution ("Solidarity Contribution"). The most legally complex problems arise in the case of the recruitment of players who have exercised the unilateral withdrawal from the contract with the previous club. In fact, if the withdrawal occurred without just cause, the art. 17.2 RSTP provides for the joint liability of the new club for the compensation that the player can be condemned to pay towards the old club. Disciplinary sanctions may also be imposed on the new club where it has induced the player to withdraw illegitimately. Also the tax profiles are relevant, given that many sports work contracts are negotiated on a net basis and that often there are temporary assignments of contracts (so-called loans) which can obviously present questions of transnational taxation, especially where, for example, the transferring club accepts part of it of the salary of the player transferred on loan to another club. The parties are also free to negotiate the choice of the law applicable to the contract. Even this choice, however, must be coordinated with the regulatory norms and, in particular, with those that govern the functioning of the judicial bodies. According to the RSTP the resolution of disputes between clubs in relation to an international transfer is entrusted to the "Players' Status Committee" FIFA regulations, supplemented by Swiss law, as well as possibly taking into account national laws and / or collective labor agreements in force at national level , as well as the principle of sport specificity. The decisions of the PSC can be appealed to the Court of Arbitration for Sport of Lausanne ("TAS"), an independent arbitration institution that acts as a sort of supreme court of world sport, and whose praises can be appealed (for essentially procedural reasons) to the supreme Swiss Court.
These brief notes provide insight into the complexity of the subject, especially given the regulatory and jurisdictional framework in which these international transfers take place. In this regard, it is clear that the careful "construction" by the clubs and their lawyers of a transfer agreement is essential for the success of the market operation.

The article that we have reported was edited by prof. Massimo Coccia and the lawyer Mario Vigna and published in the "Special" TopLegal Sport Focus that you can download at this link

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