Cardiff City Football Club v. FC Nantes

At a glance

Parties

Cardiff City Football Club Limited (Wales) v. SASP Football Club de Nantes (France)

Case no.

CAS 2019/A/6594

Forum and rules

Court of Arbitration for Sport, Appeals Arbitration Division (CAS Code, 2019 edition); hearing in Lausanne

Treaty

Contract: Transfer Agreement of 19 January 2019 (clause 8.2: FIFA, then CAS; laws of England and Wales and FIFA Regulations); Article 58(1) FIFA Statutes

Panel

Prof. Ulrich Haas (President), Andrew de Lotbinière McDougall QC, Nicholas Stewart QC

Sector

Football transfer

Outcome

Appeal dismissed. The FIFA Players' Status Committee decision of 25 September 2019 ordering Cardiff to pay the first transfer instalment was confirmed (award of 26 August 2022).

Amount

Total transfer fee EUR 17,000,000. In dispute and upheld: first instalment of EUR 6,000,000 plus 5% interest per year from 27 January 2019. Cardiff's set-off claim (valued at EUR 17,000,000) was not adjudicated. The costs paragraphs of the operative part are redacted in the published award.

The dispute

On 19 January 2019 FC Nantes and Cardiff City agreed to transfer the striker Emiliano Sala to Cardiff for EUR 17,000,000. The agreement was subject to four conditions precedent, which had to be met by 22 January 2019. The player died in a plane crash over the English Channel in the night of 21–22 January 2019. FC Nantes claimed the first instalment of EUR 6,000,000 before FIFA. The FIFA Players' Status Committee upheld the claim and held that it had no competence over Cardiff's tort-based set-off claim. On appeal to CAS, Cardiff argued that the conditions in clauses 2.1.2 and 2.1.4 were not met: the termination of the player's Nantes contract never took effect, and the player was never registered with the Premier League. In the alternative, Cardiff argued that FC Nantes was liable in tort for the death, through its agents Mark and Willie McKay, who had organised the flight, and that this liability should be set off against the fee. FC Nantes argued that all conditions were met, that the tort claim fell outside FIFA's and therefore CAS's mandate, and that it would in any event fail under English law, including the rule in Baker v Bolton.

Key holdings

1. In an appeal arbitration, the Panel's mandate cannot exceed that of the first-instance body. Cardiff's tort claim could be heard only if the FIFA PSC had been competent to decide it. ¶¶ 130–132
2. The FIFA PSC had no mandate over the set-off claim on either reading of Article 377(1) Swiss CCP (le juge de l'action est le juge de l'exception). If the provision makes jurisdiction mandatory, the parties implicitly excluded set-off claims outside the subject-matter jurisdiction of FIFA's specialised bodies, whose procedural rules cannot handle a complex cross-border tort claim. If it leaves discretion, the lack of connection between the two claims and FC Nantes' right to a decision without undue delay weigh strongly against hearing the set-off. ¶¶ 149–175
3. In the alternative, the English law Geldof test for set-off is not met. Organising the fatal flight was not one of FC Nantes' duties under the Transfer Agreement, and the transfer was already complete when the flight was arranged. The award does not prevent Cardiff from bringing its claim in an ordinary CAS arbitration or before a competent national court. ¶¶ 180–190
4. Clause 2.1.2 required only that FC Nantes and the player agree the terms of a mutual termination, which mirrors Article 8(2)(3) of Annex 3 to the FIFA RSTP. It did not require the termination to be validly carried out under French labour law. In any case, the conditions of the Termination Agreement were met on 21 January 2019. Clause 2.1.3 was met because the LFP homologated the termination. ¶¶ 346–364
5. Clause 2.1.4 refers to registration by the FAW, not by the Premier League. The FAW registered the player and confirmed receipt of the ITC on 21 January 2019, before his death. Under clause 5.3, Cardiff's ability to field the player was a warranty given by Cardiff, not a condition precedent. ¶¶ 374–383
6. The transfer was complete and all conditions precedent were met. FC Nantes' claim for EUR 6,000,000 plus 5% interest from 27 January 2019 was upheld, and Cardiff's other allegations (bribery, third-party ownership, illegality) were dismissed as insufficiently substantiated. ¶¶ 384–389
7. The Panel rejected Cardiff's request to strike out the expert evidence of Prof. Müller, a CAS arbitrator. The 2021 version of Article S18 of the CAS Code does not apply retroactively, and a breach could lead only to removal of the arbitrator from the CAS list under Article S19. ¶¶ 273–280

Procedural history

1. 19 January 2019Transfer Agreement and Termination Agreement signed.
2. 21 January 2019The FFF issued the ITC and the FAW registered the player with Cardiff. That night the player died in a plane crash.
3. 26 February 2019FC Nantes filed its claim with FIFA.
4. 25 September 2019The FIFA PSC ordered Cardiff to pay EUR 6,000,000 plus interest. Its grounds were notified on 30 October 2019.
5. 20 November 2019Cardiff filed its Statement of Appeal with CAS.
6. 4 March 2020Panel constituted.
7. 4 October 2021The Panel bifurcated the proceedings to decide three threshold issues first.
8. 3–4 March 2022Hearing in Lausanne.
9. 26 August 2022Final award: appeal dismissed and FIFA decision confirmed.

Tribunal, counsel and experts

Decided by

• Ulrich Haas President, CAS Panel — appointed by the institution
• Andrew de Lotbinière McDougall Co-arbitrator, CAS Panel — appointed by the claimant
• Nicholas Stewart Co-arbitrator, CAS Panel — appointed by the respondent

For the claimant

Sven Demeulemeester · Gauthier Bouchat · Christopher Nott · Céline Jones · Carrie Gwyther · Wayne Beynon · Pascal Wilhelm · Sophie Le Grom De Maret

For the respondent

David Casserly · Adam Taylor · Edgar Philippin · Anton Sotir · Jérôme Marsaudon · Louis-Marie Absil · Claire Havet · Raphaëlle Greffier · Stephen Sampson · Katie Smith

Experts

Antonio Rigozzi (claimant) · Paul Gilroy QC (claimant) · Robert Glancy (claimant) · Christoph Müller (respondent) · Neil Selwyn Block (respondent) · Andrew Hunter (respondent)

Run a conflict check on these names →

Keywords

• Emiliano Sala
• Cardiff City
• FC Nantes
• football transfer
• transfer fee
• conditions precedent
• FIFA RSTP
• International Transfer Certificate
• Premier League registration
• set-off
• tort claim
• Article 377 Swiss CCP
• juge de l'action juge de l'exception
• bifurcation
• scope of appeal
• contract interpretation
• Article S18 CAS Code
• Baker v Bolton

Summary generated with AI from the published documents — refer to the award for the authoritative text.