On the evening of 21 January 2019, a single-engine Piper Malibu took off from Nantes Atlantique Airport on a flight across the English Channel to Cardiff Airport.
The sole passenger on the chartered flight was Emiliano Sala (‘Sala’ or ‘the Player’), a 29-year old Argentine striker whose services SASP Football Club de Nantes (‘FC Nantes’) had agreed to transfer to Cardiff City Football Club Limited (‘CCFC’) under an agreement concluded on 19 January 2019 (‘the Transfer Agreement’). News of this transfer had raised hope among CCFC’s supporters that Sala, for whom CCFC agreed to pay a club-record of Euro 17 million (GBP 15 million), would be the saviour in CCFC’s quest to avoid relegation from the English Premier League (‘EPL’).
About an hour into the flight, air traffic control lost contact with the Piper Malibu. The initial search for the aircraft did not yield results. The wreckage, with Sala’s body inside, was eventually found in the early hours of 3 February 2019. The body of the pilot, David Ibbotson, has not been recovered to this day.
In the aftermath of the tragedy, it transpired that Ibbotson was not licensed to carry paying passengers and was not qualified to fly at night. Further, his rating to fly a single-engine Piper Malibu had expired two months before the crash.
1 It also appeared that the aircraft may have been in a questionable condition – Ibbotson had described it to his friends as “
dodgy”, while Sala expressed concerns to three friends that the Piper Malibu “
looks like it's falling apart”.
2
On 14 August 2019, the Air Accidents Investigation Branch (AAIB) reported that a toxicology test disclosed that the blood from Sala’s body had a COHb
3 level of 58%, an amount likely to have resulted in Sala losing consciousness from carbon monoxide poisoning, suggesting that the poisonous gas may had leaked into the cabin during the flight.
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Key events
Some of the key events that occurred before the tragic event are set out below.
18 January 2019CCFC appealed against the decision of the FIFA PSC (‘Appealed Decision’) to the Court of Arbitration for Sport (‘CAS’).
Decision of the CAS Panel
On 26 August 2022, a panel of three arbitrators (‘Panel’) of the CAS dismissed CCFC’s appeal and upheld the decision of the FIFA PSC.
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According to the Panel, the main issue was whether the Transfer Agreement is valid (with all conditions precedent set out in Clause 2.1 thereof being cumulatively complied with). Clause 2.1 of the Transfer Agreement provides as follows:
“
This Transfer Agreement is conditional upon:
| 2.1.1. |
the player completing successfully medical examination with [CCFC]; |
| 2.1.2. |
FC Nantes and the Player agreeing all the terms of a mutual termination of FC Nantes contract of employment with the Player; |
| 2.1.3. |
the mutual termination of FC Nantes contract of employment with the Player is registered by the LFP; |
| 2.1.4. |
the LFP and the FAW have confirmed to [CCFC] and FC Nantes that the Player has been registered as a [CCFC] player and that the Player’s International Transfer Certificate has been released.” |
Clause 2.2 of the Transfer Agreement states,
inter alia, that if the conditions precedent are not fulfilled by 22 January 2019 (‘Cut-Off Date’), the Transfer Agreement shall cease to have legal effect and no payment shall be due from CCFC to FC Nantes.
The Panel then proceeded to consider each provision in clause 2.1 of the Transfer Agreement.
Clause 2.1.1 – Completion of the medical examination of the Player
The Panel was not required to make a ruling on this as the parties did not dispute that this condition had been complied with as the Player had successfully completed a medical examination with CCFC on 18 January 2019.
Clause 2.1.2 – FC Nantes and the Player agreeing all the terms of a mutual termination of FC Nantes contract of employment with the Player
It was not disputed that FC Nantes and the Player had concluded the Termination Agreement on 19 January 2019.
CCFC contended that to fulfil the condition in clause 2.1.2, it was not sufficient that FC Nantes and the Player agree on the terms of the Termination Agreement but they had to also give effect to those terms. As this was not achieved by the Cut-Off Date or at all, FC Nantes could not give effect to clause 2.1.2 of the Transfer Agreement.
CCFC further contended that the employment contract between FC Nantes and the Player (‘the FC Nantes Employment Contract’), which is governed by French law, was not terminated in accordance with the French Labour Code (‘FLC’) by the Cut-Off Date or at all, as there was no evidence that certain documents required to be provided to the employee under the FLC were provided to the Player before the expiry of the Cut-Off Date.
Thirdly, CCFC also contended that as FC Nantes had not issued a ‘proper settlement’ of the ‘balance of all accounts’ to the Player in accordance with clause 2 of the Termination Agreement, FC Nantes had not fulfilled the condition precedent thus rendering the Termination Agreement null and void and consequently, clause 2.1.2 of the Transfer Agreement was not satisfied and the Player remained an employee of FC Nantes at all material times.
The Panel was of the view that the wording of clause 2.1.2 of the Transfer Agreement was clear in that it required that there is an agreement between FC Nantes and the Player on all the terms of a mutual termination of the FC Nantes Employment Contract. The Panel did not agree with CFCC’s contention that there is an additional requirement for that contract to be executed according to French law.
According to the Panel, the text of clause 2.1.2 of the Transfer Agreement coincides with the wording of Article 8(2)(3) of Annex 3 to the FIFA RSTP which provides that “
Upon receipt of the ITC request, the former association shall immediately request the former club and the professional player to confirm whether the professional player’s contract has expired, whether early termination was mutually agreed or whether there is a contractual dispute.”
The Panel expressed the view that FC Nantes’ consent to the transfer was obviously required, and the mutual termination of the FC Nantes Employment Contract was a relevant aspect in this respect. However, the FIFA RSTP does not require that the mutual termination agreement is validly enforced, but simply that it is agreed upon.
The Panel rejected CCFC’s contention that the conditions in clause 1 of the Termination Agreement, i.e. that the Player is transferred permanently to CCFC, and the ITC is issued by the FFF to the English Football Association, were not fulfilled and that, as a consequence, the condition precedent in clause 2.1.2 of the Transfer Agreement was also not fulfilled. The Panel found that, on the facts, the Player had been permanently transferred to CCFC when the FFF issued the Player’s ITC to the FAW, and the FAW registered the Player as a CCFC player on 21 January 2019. Accordingly, the Panel concluded that the conditions in clause 1 of the Termination Agreement had been fulfilled before the Cut-Off Date.
In light of the above findings, the Panel said they were not required to rule on the question of whether the FC Nantes Employment Contract was validly exercised under French law. The question if and to what extent certain conditions needed to be fulfilled according to French law became immaterial. The Panel added that in any event, any problem concerning the valid termination of the FC Nantes Employment Contract would have been a matter between FC Nantes and the Player (or his heirs).
For the foregoing reasons, the Panel also considered it irrelevant whether or not the documents required to be provided to the employee under the FLC were drafted or exchanged after the issuance of the Player’s ITC or whether such documents were backdated.
Clause 2.1.3 – Registration of the mutual termination of the FC Nantes Employment Contract by the LFP
Clause 2.1.3 of the Transfer Agreement requires the mutual termination of the FC Nantes Employment Contract to be “registered by the LFP”.
The Panel found that the wording of clause 2.1.3 of the Transfer Agreement was clear: it required the Termination Agreement to be registered/ homologated by the LFP, i.e. the LFP was to verify the legality of the Termination Agreement, and did not require the LFP to assess or examine whether the terms of the Termination Agreement were actually complied with. The Panel agreed with the reasoning of the FIFA PSC in the Appealed Decision:
“[
T]
he Bureau assumed that the clause at stake had been included in the [
Transfer Agreement]
with the sole purpose of securing [
CCFC]
from the consequences in terms of possible inducement in the player’s breach of contract at a later stage in case a dispute would arise between [
FC Nantes]
and the player, however remote such possibility might have been.”
As the LFP had informed the FFF on 21 January 2019 that it had homologated the Termination Agreement, the Panel ruled that the condition precedent in clause 2.1.3 of the Transfer Agreement was satisfied.
Clause 2.1.4 – Confirmation by the LFP and the FAW to CCFC and FC Nantes that the Player has been registered as a CCFC player and that the Player’s ITC has been released
CCFC contended that as the EPL was the only competition in which CCFC was entitled to play in as of the date of the Transfer Agreement, it follows that for the Transfer Agreement to have practical effect, the Player had to be registered with the EPL and, thus, be entitled to play for CCFC upon his transfer.
At the time of the Player’s death, he was not registered with the EPL. According to CCFC, the Player’s agent was aware that the CCFC Employment Contract had to be renegotiated following the EPL’s refusal to register the CCFC Employment Contract.
Alternatively, CCFC maintained that, even on a literal interpretation of clause 2.1.4, the LFP did not confirm to CCFC and/or FC Nantes that the Player had been registered as a CCFC player by 22 January 2019, and the FAW did not confirm to CCFC that the Player had been registered as a CCFC player by 22 January 2019. Accordingly, CCFC submitted that, on an alternative reading of clause 2.1.4, the condition precedent has not been fulfilled.
FC Nantes did not dispute that CCFC intended to field the Player in EPL matches. However, the object of the Transfer Agreement was to provide CCFC with a
possibility to register the Player with the EPL for CCFC, not to register him with the EPL. As the Player was registered as a CCFC player on 21 January 2019, FC Nantes contended that the condition precedent in clause 2.1.4 had been fulfilled.
The Panel held that from a regulatory standpoint (i.e. the FIFA RSTP), a transfer is considered executed and finalised once a player is registered with the new association. This arises when the new association has received the player’s ITC from his former association. The Panel found that the parties to the Transfer Agreement did not deviate from this approach. The Panel interpreted the word “registered” in clause 2.1.4 as referring to registration by the FAW. Being registered with a national association, however, is the prerequisite for a player to play in national competitions. Thus, it was the Panel’s view that clause 2.1.4 does not provide any basis to suggest that the Player was to be registered by the EPL as well as by the FAW.
As it was undisputed that the Player had been registered with the new association on 21 January 2019, i.e. before the Player’s death, the Player was thenceforth at the disposal of CCFC (and not at the disposal of FC Nantes). The Panel also noted that CCFC did not inform or contact FC Nantes of the EPL’s refusal to register the CCFC Employment Contract. It would have been business common sense for CCFC to do so, if such registration had been a condition precedent to the Transfer Agreement.
The Panel was of the view that clause 2.1.4 reflects the approach in Article 8(2)(5) of Annex 3 to the FIFA RSTP, which provides that “
Once the ITC has been delivered, the new association shall confirm receipt and complete the relevant player registration information in TMS.”
In light of its findings, the Panel concluded that the condition precedent in clause 2.1.4 of the Transfer Agreement had also been satisfied.
Consequences of the findings
As the Player’s transfer from FC Nantes to CCFC was completed and all the conditions precedent in clause 2.1 of the Transfer Agreement had been satisfied prior to the Player’s death, the Panel ruled that CCFC’s payment obligations towards FC Nantes under the Transfer Agreement had been triggered. Thus, FC Nantes’ claim for the first instalment of the transfer fee of EUR 6,000,000, plus 5% interest per annum as from 27 January 2019 until the date of effective payment, was upheld and CCFC’s appeal against the Appealed Decision was dismissed by the Panel. The Panel also confirmed the other aspects of the Appealed Decision.
It has been reported the CCFC has challenged the Panel’s award in the Swiss Federal Court.
Comments
This case has generated much interest among football aficionados as it is probably the first instance where a dispute as to whether the transfer of a football player has been completed has arisen in such tragic circumstances.
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CCFC was relegated from the EPL at the end of the 2018/2019 season. We will never know whether Sala would have been the saviour who could have saved CCFC from relegation.
Article by Kok Chee Kheong (Partner) of the Corporate Practice of Skrine.
Note: The Panel also considered several other issues, including the admissibility of a tortious claim by CCFC against FC Nantes for causing the death of Sala through the acts or omissions of its agents/ sub-agents who arranged the chartered flight for Sala, in its award. It has been reported that CCFC may pursue the tortious claim in the civil courts against those responsible for the crash if its challenge of the Panel’s award is unsuccessful.
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