Abstract
This chapter focuses on the unilateral extension option , which is a very popular clause in international football. The most relevant decisions of the DRC as well as those of the CAS will be discussed in this regard. The use of unilateral extension options is quite problematic in international football. The DRC is of the opinion that the clauses generally have a disputable validity and are not valid since they excessively restrict the freedom of the player. In this chapter the conditions derived from the jurisprudence, under which this clause can be considered as valid, will be outlined and brought to the readers’ attention.
This chapter has partially been co-written with Mr T. Kroese, former clerk of the Court of Rotterdam and currently working as an attorney-at-law in the Netherlands. See also Wild 2011, p. 107.
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Notes
- 1.
RSTP, 2016 edition, Article 18 para 2. See also DRC 7 April 2011, no. 411852. In this case the Chamber emphasized that the first respondent was clearly under the age of 18 when he signed this contract and, in this regard, referred to Article 18 para 2 of the Regulations, in accordance with which players aged under 18 may not sign a professional contract for a term longer than 3 years. Any clause referring to a longer period shall not be recognized.
- 2.
DRC 22 July 2004, no. 74508.
- 3.
In an unpublished DRC decision of 24 March 2004, the DRC had to decide with regard to the transfer of a player, in which the old club refused to release the player as the club was of the opinion that the player was still contractually bound to the club. The club pointed out that if the contract terminates, the internal rules of the relevant national association provided for the option to unilaterally extend the contract by one more year based on the same conditions as in the current contract. This option can be seen as a tacit prolongation if the club did not inform the player not to start negotiations for a new contract. The DRC could not agree with the club’s point of view. Although the decision was not published, the decision can be consulted in the Dutch former magazine (SZ 375) Anton Sportzaken 2004/2 (no. 29) C3.
- 4.
DRC 13 May, no 55161.
- 5.
A potestative clause can be considered as a condition that its fulfilment is made subject to the will of one of the parties.
- 6.
DRC 21 February 2006, no. 261245. See also an previously published case of the DRC of 24 October 2005, no. 105874 (2).
- 7.
See FIFA Commentary, p. 53, Footnote 90.
- 8.
DRC 23 March 2006, no. 36858.
- 9.
DRC 12 January 2007. Unfortunately, this case is not published. In the report by Compaire et al. 2009 reference is made to the DRC case Club Atletico Lanus v. Javier Alejandro Almiron & Polideportivo Ejido SAD (FIFA 07/00789). However, neither is this case published. The unilateral extension option in the latter case was not valid because the decisive argument was that the player was absolutely aware of the unilateral extension option. According to the DRC, the player therefore explicitly accepted this clause.
- 10.
TAS 2005/A/983&984 Club Atlético Peñarol v. Carlos Heber Bueno Suárez, Christian Gabriel Rodríguez Barrotti & Paris Saint-Germain, award of 12 July 2006.
- 11.
The unilateral extension option could also be laid down in a document other than the employment contract in which the player explicitly agrees to this clause. See for example the DRC decision of 23 March 2006, no. 36858.
- 12.
RSTP, 2016 edition, Article 18 para 2.
- 13.
CAS 2005/A/973 Pananthinaikos FC v. Sotirius Kyrgiakos, award of 10 October 2006.
- 14.
DRC 20 November 2007, no. 117707.
- 15.
In this respect it is remarkable that the DRC explicitly refers to the case before the CAS in which the unilateral extension option was invalid (TAS 2005/A/983&984 Club Atlético Peñarol v. Carlos Heber Bueno Suárez, Christian Gabriel Rodríguez Barrotti & Paris Saint-Germain, award of 12 July 2006), whereas the DRC could also have referred to the other CAS case, in which the CAS had decided that the unilateral extension option was valid (CAS 2005/A/973 Pananthinaikos FC v. Sotirius Kyrgiakos, award of 10 October 2006). The DRC case aptly gives rise to the suspicion that the conclusion would not have been positive on the validity of the unilateral extension option concerned if the DRC had to decide on its content. Unfortunately this cannot be said due to the fact that the DRC did not have to decide on the content of the option.
- 16.
DRC 7 May 2008, no. 58860.
- 17.
Also, in a DRC decision of 7 May 2008, no. 58996, reference was not made to the DRC decision of 12 January 2007. In this case the DRC is also consistent regarding the option and decided that it was not valid. Also in a DRC decision of 10 August 2007, no. 87875, the DRC decided that the unilateral extension option concerned was not valid. Unfortunately, this decision is not available on the website of FIFA at present, since it is under construction. It is worth noting that in that decision too, reference was not made to the prior decision (and the mentioned conditions) of the DRC of 12 January 2007.
- 18.
DRC 9 January 2009, no. 19174.
- 19.
DRC 18 March 2010, no. 310607.
- 20.
Portmann 2007, pp. 6–16.
- 21.
DRC 7 June 2013, no. 06132616.
- 22.
DRC 17 August 2012, no. 812104.
- 23.
DRC 31 July 2013, no. 07132435.
- 24.
DRC 31 July 2014, no. 07141003.
- 25.
CAS 2004/A/678 Apollon Kalamarias F.C. v. Oliveira Morais, award of 20 May 2005. This concerns the appeal procedure of the case before the DRC of 22 July 2004, no. 74508. Another (prior) decision which also covered the unilateral extension option is TAS 2003/O/530 A.J. Auxerre Football c. Valencia CF, SAD & M. Mohamed Lamine Sissoko, award of 27 August 2004. In this case the club tried to convert a ‘trainee’ contract into a professional contract using an extension. Another case was CAS 2005/A/906 K. v. FC Iraklis, award of 5 December 2005. In this case the CAS decided that the said option was invalid since the renewal had not been defined. The right of renewal was, therefore, not validly concluded.
- 26.
In addition, this case should be considered interesting, because the CAS referred to one of its decisions stating that national federations should consider principles of cross-border competitions.
- 27.
TAS 2005/A/983&984 Club Atlético PeÑarol v. Carlos Heber Bueno Suárez, Christian Gabriel Rodríguez Barotti & Paris Saint-Germain, award of 12 July 2006.
- 28.
The DRC decision is not published on the FIFA website.
- 29.
CAS 2005/A/973 Pananthinaikos Football Club v. Sotirios Kyrgiakos, award of 10 October 2006.
- 30.
See also the case of CAS 2006/O/1055 Del Bosque et al. v. Besiktas, award of 9 February 2007. In this case it was decided that the validity of the unilateral extension option allowing the club to terminate the agreement after one year, while the claimants were bound for the full contractual term, would have been questionable anyway. The Panel accepts that in terms of publicity, media coverage and direct as well as indirect repercussions, an immediate layoff indisputably has a far more negative impact than the non-continuation of an employment contract finishing in an orderly manner at the end of the season.
- 31.
CAS 2006/A/1157 Club Atlético Boca Juniors v. Genoa Cricket and Football Club S.p.A., award of 31 January 2007. A prior CAS case that dealt with a unilateral extension option was TAS 2006/A/1082-1104 Real Valladolid CF SAD v. Diego Barreto Cáceres & Club Cerre Porteno, award of 19 January 2007. In this case the unilateral extension option was considered invalid, because of its incompatibility with FIFA regulations. In this case, the CAS referred to its decision in the aforementioned CAS decision of 12 July 2006, 2005/A/983 and 984 Club Atlético Peñarol v. Carlos Heber Bueno Suárez, Christian Gabriel Rodríguez Barrotti & Paris Saint-Germain, award of 12 July 2006. See also CAS 2007/A/1219 Club Sekondi Hasaacas FC v. Club Borussia Mönchengladbach, award of 9 July 2007. In this case, the CAS referred to the fact that the validity and enforceability of a unilateral extension option clause is disputed under Swiss law. The CAS decided that even if the former club in the present case had exercised its option in a timely manner, the player could have possibly contested the extension of the contract and thus his obligation to return to the former club.
- 32.
The arguments were mainly based on the fact that the player was a minor and thus, falls beyond the scope of this chapter.
- 33.
CAS 2009/A/1856 Fenerbahçe Spor Kulübü v. Stephen Appiah and CAS 2009/A/1856 Stephen Appiah v. Fenerbahçe Spor Kulübü, award of 7 June 2010.
- 34.
CAS 2010/O/2132 Shakhtar Dontesk v. Ilson Pereira Dias Junior, award of 28 September 2011.
- 35.
CAS 2013/A/3260 Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, award of 4 March 2014.
- 36.
The criteria for validity are laid down in Article 15 of the Collective Bargaining Agreement for professional football players in Belgium (dated 2 July 2013).
- 37.
CAS 2013/A/3375, KSC Lokeren v. Omer Golan & Maccabi Petach Tikva FC, and CAS 2013/A/3376, Omer Golan & Maccabi Petach Tikva FC v. KSC Lokeren, award of 22 August 2014. See also CAS 2014/A/3852 Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sports and Cultural Club, award of 11 January 2016. In the latter case the CAS Panel decided, among other things, that the two-year extension of the employment contract could be understood as being reasonable, even if the original duration was only valid for one year. The CAS Panel referred to the same 7 conditions as mentioned in CAS 2013/A/3260 Grêmio Foot-ball Porto Alegrense v. Maximiliano Gastón López, award of 4 March 2014.
- 38.
CAS 2004/A/628 IAAF v. USATF & Y, award of 28 June 2004, and CAS 2008/A/1545 Andrea Anderson et al. v. IOC, award of 16 July 2010.
- 39.
DRC 21 February 2006, no. 261245, and CAS 2005/A/973 Pananthinaikos Football Club v. Sotirios Kyrgiakos, award of 10 October 2006.
- 40.
See also CAS 2014/A/3852 Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sports and Cultural Club, award of 11 January 2016.
- 41.
See also CAS 2014/A/3852 Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sports and Cultural Club, award of 11 January 2016.
- 42.
See also the DRC case of 31 July 2014, no. 07141003.
- 43.
See DRC 28 March 2012, no 3122702. In this case, the Chamber emphasized that the financial terms for the second year of the contract were omitted and, therefore, the prerequisites for a valid employment contract were not given for the second year.
- 44.
See for example DRC 9 May 2011, no. 5112306, and DRC 27 March 2014, no. 03143008.
- 45.
See also CAS 2014/A/3852 Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahd Sports and Cultural Club, award of 11 January 2016.
- 46.
See also CAS 2014/A/3852 Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sports and Cultural Club, award of 11 January 2016.
- 47.
In the Netherlands there was a case whereby the Dutch KNVB Arbitration Tribunal decided in the case AFC Ajax N.V. against Hatem Belgacem Trabelsi, that the unilateral extension option in favour of Ajax was valid according to Dutch national law. See Dutch KNVB Arbitration Tribunal, 4 June 2004, no. 1022. In a later case before our Dutch KNVB Arbitration Tribunal between Timo Letschert and Roda JC of 29 August 2014, no. 1408, the Dutch KNVB Arbitration Tribunal decided that a clause in which the initial contract was five months and the optional period was two years, was not excessive.
- 48.
See also CAS 2014/A/3852 Ascoli Calcio 1898 S.p.A. v. Papa Waigo N’diaye & Al Wahda Sports and Cultural Club, award of 11 January 2016.
- 49.
DRC 30 November 2007, no. 117311, DRC 28 September 2007, no. 97460 & 971002, DRC 22 June 2007, no. 67675, and DRC 10 August 2007, no. 871283. See also CAS 2013/A/3375, KSC Lokeren v. Omer Golan & Maccabi Petach Tikva FC, and CAS 2013/A/3376, Omer Golan & Maccabi Petach Tikva FC v. KSC Lokeren, award of 22 August 2014.
References
Compaire DFR, Planás Gerardo RA, Wildemann SE (2009) Contractual stability in professional football: recommendations for clubs in a context of international mobility. http://www.lawinsport.com/pdf/ContStabinProfFoot.pdf. Accessed 26 July 2016
Portmann W (2007) Unilateral option clauses in footballers’ contracts of employment: an assessment from the perspective of international sports arbitration. Sweet Maxwell Int Sports Law Rev 7(1):6–16
Wild A (2011) CAS and Football: landmark cases. T.M.C Asser Press, The Hague
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de Weger, F. (2016). Unilateral Extension Option. In: The Jurisprudence of the FIFA Dispute Resolution Chamber. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-126-5_7
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