Osmanlispor FK v. SD Huesca

At a glance

Parties

Club Osmanlispor (Turkey) v. Sociedad Deportiva Huesca (Spain)

Case no.

CAS 2021/A/7909

Forum and rules

Court of Arbitration for Sport, appeals procedure under the CAS Code (2020 edition)

Treaty

Contract clause: Article 5 of the Transfer Agreement of 7 August 2018 (FIFA jurisdiction, appeal to CAS)

Tribunal

Cesare Gabasio (Sole Arbitrator)

Sector

Football transfer; sell-on clause

Outcome

Appeal dismissed (8 August 2022). The FIFA PSC decision of 9 February 2021 rejecting Osmanlispor's claim was confirmed.

Amount

Claimed: EUR 80,000 sell-on fee and EUR 12,000 penalty, each with 5% interest from 21 January 2019. Awarded: nothing. The costs provisions are redacted in the published award.

The dispute

On 7 August 2018 Osmanlispor sold the player Serdar Gürler to Huesca on a permanent transfer for EUR 2,300,000. The Transfer Agreement included a sell-on clause: "In case the Player is transferred to a third club, HUESCA shall pay 20% … of the transfer fee that is received from the sale" to Osmanlispor. On 14 January 2019 Huesca loaned the player to Götzepe AS for a loan fee of EUR 400,000. In August 2020 the player moved permanently to Antalyaspor, recorded in the TMS as free of payment. Osmanlispor claimed 20% of the loan fee (EUR 80,000) plus a 15% contractual penalty (EUR 12,000). It argued that the clause covered any transfer and that Huesca had accepted this by paying solidarity contributions calculated on EUR 80,000. Huesca answered that a loan is not a "sale", because no economic rights in the player pass to the borrowing club. The FIFA Players' Status Committee rejected the claim, and Osmanlispor appealed to CAS.

Key holdings

1. CAS has jurisdiction under Article 58.1 of the FIFA Statutes and Article 5 of the Transfer Agreement. The appeal, filed on 21 April 2021 after the grounds were notified on 31 March 2021, was within the 21-day time limit and is admissible. ¶¶ 28–33
2. FIFA regulations apply first and Swiss law applies subsidiarily. The clause is therefore interpreted under Article 18.1 of the Swiss Code of Obligations, which looks for the parties' true and common intention: first the words used, then all relevant circumstances, including the negotiations, the parties' later conduct and usages. ¶¶ 37–41
3. The clause refers to the "sale" of the player, not to a "transfer" in general. In professional football a "transfer" can be definitive or temporary, but a "sale" can only be a definitive transfer. The parties therefore meant the sell-on fee to apply only to a definitive transfer, and the loan to Götzepe AS did not trigger it. ¶¶ 45–46, 60
4. CAS 2007/A/1219 is distinguished on two grounds. The clause in that case referred broadly to any "transfer", and the loan there was in substance a final transfer. Here the player returned to Huesca after the loan, and there was no evidence that the loan concealed a final transfer. ¶¶ 47–50
5. Huesca's solidarity contribution payments, calculated on EUR 80,000 and made to Elazigspor and Kayseri Erciyesspor, do not show that it accepted Osmanlispor's reading of the clause. Those payments arise from Article 1 of Annexe 5 of the FIFA RSTP, which also applies to loans. Huesca's letter of 14 September 2020 confirms that it did not read the clause as covering the loan. ¶¶ 51–58
6. The later transfer to Antalyaspor was free of charge and is not relevant. Osmanlispor is entitled neither to the EUR 80,000 sell-on fee nor to the EUR 12,000 penalty. The appeal is dismissed. ¶¶ 59–62

Procedural history

1. 7 August 2018Osmanlispor and Huesca sign the Transfer Agreement for the permanent transfer of Serdar Gürler.
2. 14 January 2019Huesca loans the player to Götzepe AS for EUR 400,000.
3. 18 September 2020Osmanlispor files a claim with the FIFA Players' Status Committee.
4. 9 February 2021The Single Judge of the FIFA PSC rejects the claim. The grounds are notified on 31 March 2021.
5. 21 April 2021Osmanlispor files its Statement of Appeal with CAS.
6. 14 May 2021Sole Arbitrator Cesare Gabasio is appointed.
7. 29 September 2021Hearing held by video-conference.
8. 8 August 2022Award: appeal dismissed and the FIFA PSC decision confirmed.

Tribunal, counsel and experts

Decided by

• Cesare Gabasio Sole arbitrator, Court of Arbitration for Sport — appointed by the institution

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Keywords

• sell-on clause
• sell-on fee
• loan transfer
• temporary transfer
• definitive transfer
• meaning of sale
• contract interpretation
• Article 18 Swiss Code of Obligations
• FIFA RSTP
• solidarity contribution
• FIFA Players' Status Committee
• Serdar Gürler
• Götzepe
• Antalyaspor
• football

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