Football & Law, Current affairs procedural law, December 2021: Part I
This year, our sports law section – in addition to providing a broad range of services to clients in the sports sector – once again litigated in several football-related cases, including a number of remarkable ones. Hereby, in two parts, an insight into a number of these matters that are relevant to football, but certainly also to the civil law practice. Part two will follow on Friday December 3, 2021.
I. Annulment of an arbitral award of the KNVB arbitration committee by the Court of Appeal Arnhem-Leeuwarden
In a decision of the Arnhem-Leeuwarden Court of Appeal of 17 August 2021, after an earlier interim judgment of 25 February 2020 (ECLI:NL:GHARL:2020:1612), an arbitral judgment of the KNVB arbitration committee of 28 June 2017 annulled on the basis of article 1068 Rv due to fraud committed by the player in question in that arbitration case (link: Arbitral judgments | KNVB/att01783 (knvb.nl)).
There is no right of appeal against an arbitral award of the KNVB arbitration committee. With the arbitral award, the dispute immediately comes to a definitive end after one instance, which means that the parties usually simply have to accept the verdict. The question whether the lack of such a possibility of appeal is a desirable situation is at all an interesting discussion for parties seeking justice in the Netherlands playing football. Due to their compulsory membership of the KNVB, they are forced to KNVB arbitration, without being able to appeal to a body such as UEFA, FIFA or CAS after an arbitral award. This while from a legal and procedural point of view there can be brought a lot of arguments against the KNVB arbitration procedure, but we will not go further into this matter here.
In certain (special) cases, however, something can be done against an arbitral award of the KNVB arbitration committee – or any other arbitral tribunal.
Article 1068, paragraph 1 Rv (the Dutch Code for Civil Procedures) offers the possibility to request the revocation of an arbitral award based on three (3) grounds mentioned therein from the competent court of appeal – the court of appeal within the jurisdiction under which the arbitral tribunal falls.
- when deception committed in the arbitration is discovered after the award;
- the verdict is based in whole or in part on documents which, after the verdict, prove to be false;
- after the award a party has obtained documents that would have influenced the decision of the arbitral tribunal and which were withheld deliberately by the other party;
If the judge (read: the court of appeal) finds the grounds for revocation to be correct, then the arbitral award will be annulled, according to article 1068, paragraph 3, Rv.
What happened in this case?
The player in question made a transfer from Telstar to the French club Le Havre in the summer of 2016 and did not invoke the assistance of his intermediary with whom he had an exclusive, ongoing and non-cancellable representation agreement. The player had put this intermediary aside, the day before he traveled to France to complete the transfer to Le Havre. According to the player, he had completed the transfer to Le Havre himself, without the assistance of any intermediary. A transfer without the assistance of an intermediary or lawyer is very rare these days, especially in the case of a cross-border transfer. Interesting detail, the player had little or no knowledge of the French language at that time.
For your understanding, a player may at any time act for himself in any negotiation based on the FIFA Regulations. A player cannot therefore be forced to be assisted by an intermediary, even if he has concluded an ongoing exclusive representation agreement with it. The player may of course not engage another intermediary at the same time, at least if the player does so in violation of the ongoing exclusive representation agreement, then he will act liable for damages towards the intermediary.
The intermediary in question was of the opinion that the player had engaged another intermediary when concluding the transfer to Le Havre. This would mean that the player had nevertheless breached his ongoing representation agreement with the intermediary and was therefore liable to pay damages to him.
The arbitration committee of the KNVB went along with the player’s story that he had acted for himself during his transfer to Le Havre, and ruled that the intermediary could therefore not claim any compensation from the player, despite an ongoing representation agreement. According to the arbitration committee, it was not established that the player was assisted by another intermediary.
In the revocation procedure at the Court of Appeal, the intermediary stated that he could demonstrate with evidence that another intermediary had acted for the player. If that conclusion would be followed by the court, it would imply that the player had not spoken the truth in the arbitration proceedings at the KNVB.
On August 17, 2021, after many written rounds and witness hearings, the Court of Appeal ruled in legal consideration 2.3:
“…that the player was assisted by another intermediary during the realization of the transfer with Le Havre and that he (therefore) did not conclude that transfer alone. This means that cheating on the part of the player has been discovered after the decision of the arbitral tribunal. The court therefore finds the ground advanced for annulment to be correct and will therefore annul the arbitral award.”
It was thus established that the player had acted in violation of the exclusive representation agreement applicable at the time and was therefore liable for damages towards his former intermediary.
II. Sentencing to repay a loan by the “ex”-wife of a former professional player
In a decision of the Court of Zeeland-West-Brabant of 21 July 2021 – after an earlier interlocutory judgment of 26 May 2021 – the ex-wife of a former professional football player was jointly and severally sentenced to repay a loan to a private lender.
What was the case in this matter?
The player had borrowed a considerable amount of money from a private investor and over a period of years, despite various promises, turned out to be unable, or at least not willing, to repay that amount of money. After the money lender started actively working on that repayment, it turned out that the player had meanwhile divorced from his wife – with whom he was demonstrably still living together – and that the player himself did not offer security for payment, because he had lost and transferred his assets, including his built up substantial CFK bridging pension, which he had allocated to his ex-wife in the divorce proceedings. In itself a noble gesture on the part of the player, one could think, were it not that the intention of this construction was to disadvantage creditors.
The court shared the borrower’s view and ruled that this agreed division of the (dissolved) community between the player and his ex-wife, insofar as the player’s fund balance under the CFK was allocated to the ex-wife, at least the legal act with regard to the allocation of the balance fund to the ex-wife is voidable on the basis of Section 3:45(1) BW (the Dutch Civil Code).
Pursuant to that article, a non-mandatory legal act of which the debtor knew or should have known that the creditor would be prejudiced as a result is voidable. The aforementioned legal act was therefore correctly annulled, on the basis of which the ex-wife also became liable for repayment of the loan on the basis of an unlawful act. The loan, plus interest and costs, was collected for the borrower through a prejudgment seizure already placed under the CFK on the monthly CFK payment to the ex-wife.
Two more striking statements will follow in part II on Friday, December 3, 2021.
If you have any questions about these or other football-related matters or about other aspects of (international) sports and employment law, please contact Joes Blakborn or Max Hazewinkel, lawyers specialized in football and other sports-related issues, at Van Diepen Van der Kroef Attorneys from Amsterdam.
Amsterdam, December 1, 2021