Latest news on BBC Sport shows that Cardiff City are refusing to honour the contractual payments in the transfer of Emiliano Sala from Nantes, which as we all know ended in tragic circumstances when Sala and the pilot, David Ibbotson died as the plane crashed over the English Channel.
Cardiff claim that the terms of the contract maintains that if any parts of that arrangement were not confirmed, then the deal would be null and void. They claim:
· Ligue de Football Professionel (LFP) had not contacted Cardiff either before or after 22 January.
· The FAW did not confirm with Nantes.
· The LFP did not confirm with Nantes until 25 January.
It is also thought that the signing on fee due to Sala did not meet the English Premier League (EPL) rules, in particular Rule T.17 which states that a club must pay in equal instalments any signing-on fee due over the length of the contract. In the Sala case, Cardiff had front-loaded the signing-on fee and according to Cardiff’s submission to FIFA, the EPL refused to register Sala to play and returned the contract to Cardiff in order for Sala to sign an amended version, which he tragically never got to sign.
Another clause in the contract said that both parties had to make ‘reasonable endeavours’ to ensure that everything was in place for the transfer to go through – basically legalese for ‘try your best’….this is so that (in normal circumstances) Cardiff would have time to find a replacement if the transfer fell through.
But Nantes have said that the international transfer certificate had been received by FIFA at 5:30pm on 21st January, and as a result had completed all their administrative obligations. This places the onus on Cardiff City and the FAW to show that Sala had not been registered.
Effectively, Cardiff is relying on the contract law doctrine of ‘frustration’. This is where something happens which is not the fault of either party which makes a contract impossible to perform or fundamentally different to the original agreement. The effect of this is to make the contract null and void and both parties are released from any further contractual obligations.
But, if the event that causes the contract to become ‘frustrated’ is the fault of one of the parties, then the contract will not be considered frustrated, as it would encourage parties to not honour their contractual obligations.
In the Sala case, the fact Cardiff are trying to point to their own error regarding the non-compliant signing-on fee, as a reason to void the agreement with Nantes means that it is unlikely they could point to the agreement being null and void.
It will be interesting to see the outcome of the FIFA Arbitration on 3rd April, and I expect that Cardiff that would be made to honour their obligations to Nantes. But the fact they are trying to wriggle out of paying leaves a bad taste in the mouth, and does nothing for the image of modern-day football.
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