Adrian Mutu has finally decided to submit an appeal at the Swiss Bundesgericht against the ruling of the CAS which stipulated that the Romanian must pay €17 million to Chelsea following his dismissal from the club after a positive doping test in 2004.
The €17 million is related to the original transfer fee of €19 million which Chelsea paid his former club Parma in the summer of 2003. In making its ruling, the CAS confirmed the earlier decision of FIFA’s DRC.
In determining the amount of the sum to be paid, the DRC was guided by article 17 of the FIFA Regulations concerning the status and transfer of players. The €17 million largely represents the pro rate transfer fee, which means that the duration of Mutu’s employment contract and the purchase fee of €19 million has been taken into account. According to the DRC and CAS, the remaining value of Mutu’s salary was not an issue because Chelsea no longer wished to make use of the services of Mutu.
FIFPro notes that Mutu’s next club, Juventus, has so far not been held liable.
The fact of the matter is that article 17, paragraph 2 states that the new club – together with the player – is jointly liable for the full sum (‘jointly and severally liable for this payment’).
Furthermore, research carried out by the Italian players’ union AIC has shown that when it signed the agreement with Mutu, Juventus explicitly indicated to him the risk of his having to pay compensation to Chelsea. At that time of the signing of the agreement, Juventus did not yet know the amount of the compensation.
Incidentally, the FIFA Regulations do not require a statement from Juventus concerning liability in this case because any club which signs a contract with a player who has a claim against him is liable, even if that club has nothing to do with the origin of the claim.
In addition, Fiorentina, Mutu’s current club, paid Juventus a transfer fee of €8 million for Mutu, whereas Juventus has until now paid nothing for the signing of Mutu. Juventus has therefore made a large profit from Mutu’s dismissal from Chelsea, while the bill is now being presented to the player himself.
As previously mentioned, this bill is primarily based on the transfer fee which Chelsea paid to Parma; a sum over which the player had no influence whatsoever. A transfer fee is something exclusive between clubs.
For that reason, Juventus, as Mutu’s new club, should have become involved in the procedure and, in this case, paid the sum owed.
The FIFA Regulations are fully in keeping on this point with the view of the Advocate General of the European Court of Justice in the recent case concerning Olivier Bernard. Admittedly, this case did not concern a transfer fee, but instead a training compensation fee which the new club must pay for a player.
The Advocate General made a distinction between situations in which the subsequent employer must pay the compensation and those in which it must be paid by the employee himself. If the employer must pay, the benchmark is a proportional amount of the total training costs of the former employer.
This is reasonable since the new employer has saved on these training costs through the signing of the player. It is another story altogether if the employee himself must compensate his former employer for the costs of training him. In this instance, the employee cannot do anything about the fact that he forms part of a larger training programme. Therefore, in this situation the Advocate General reasons that only the costs actually incurred on an individual basis must be compensated by the employee.
Now that the FIFA Regulations assume the obligatory compensation of training costs by the new club, they are in accordance with the explanation of European law given by the Advocate General.
The FIFA Regulations also state that when a player transfers to another club, the new club is liable for the compensation to be paid, including the transfer fee paid to a previous club which has not yet been written off. If no transfer fee has been paid or if it has already been written off, there remains only the remaining value of the contract.
This last point was decided in the CAS ruling in the case of Andy Webster against Heart of Midlothian. In Mutu’s case, both FIFA’s DRC and the CAS overlooked the fact that they should have applied the mechanism as explained by the Advocate General in the Olivier Bernard case. This means that as long Juventus was not involved in the procedure, FIFA’s DRC and the CAS should have established a benchmark which was focussed upon Mutu the employee.
This vision does not include any transfer fee to be compensated, but only the remaining value of the contract. If Chelsea had wanted to claim more than that, they had the option of involving Juventus in the procedure. Since Chelsea failed to do so, this should have meant that the transfer fee was not taken into consideration. This did not happen, as a result of which Mutu now appears to be the victim of the DRC and CAS’ legal error.
FIFPro believes that if Chelsea or Adrian Mutu go ahead and still hold Juventus liable, this omission can still be repaired. Otherwise, it is up to the Swiss Bundesgericht to conclude that the CAS did indeed apply the wrong standard to Mutu.
