The case CAS 2017/A/4977 involved a complex dispute between Smouha SC, Ismaily SC, player Aziz Abdul, Club Asante Kotoko FC, and FIFA, revolving around the termination of the player's contract without just cause and the subsequent legal and financial implications. The Court of Arbitration for Sport (CAS) panel, composed of Mr. Manfred Nan, Prof. Petros Mavroidis, and Mr. Mark Hovell, addressed key legal issues related to joint and several liability under Article 17 of FIFA's Regulations on the Status and Transfer of Players (RSTP). The dispute originated when the player, Aziz Abdul, breached his contract with Ismaily SC by signing with Smouha SC, leading Ismaily to claim compensation for the breach. The FIFA Dispute Resolution Chamber (DRC) ruled that the player must pay Ismaily $615,000, with Smouha SC jointly and severally liable for the amount, despite Smouha not being directly involved in the breach. The DRC also imposed a four-month sporting sanction on the player.
Smouha SC appealed the DRC's decision to CAS, arguing that it should not be held liable under Article 17(2) of the FIFA RSTP, which imposes automatic joint liability on the new club regardless of its involvement in the breach. Smouha contended that it had no knowledge of the player's prior agreement with Ismaily and had paid a substantial transfer fee ($100,000) to Asante Kotoko FC, negating any claim of unjust enrichment. The panel examined the justifications for joint liability, including contractual stability, prevention of unjust enrichment, and protection of the former club's interests. However, it found that these justifications did not apply in this case, as Smouha had not benefited unfairly and Ismaily had not demonstrated significant damages, having neither paid the player's salary nor a transfer fee.
A critical development occurred when a parallel CAS case (CAS 2017/A/5019) ruled that the player was not liable to pay compensation to Ismaily, raising questions about Smouha's continued liability. The panel referenced Swiss Federal Tribunal jurisprudence, which emphasizes the independence of joint defendants, meaning the outcome of one case does not automatically affect another. Despite this, the panel concluded that the circumstances of this case warranted an exception to the automatic application of joint liability under Article 17(2). It highlighted that Smouha was explicitly cleared of wrongdoing by the DRC and that imposing liability would be unreasonable given the lack of evidentiary difficulties or unjust enrichment.
The panel's decision underscored the importance of context and fairness in applying FIFA's regulations, particularly in exceptional cases where rigid rules may lead to unjust outcomes. It reinforced the principle of contractual stability while recognizing that joint liability is not absolute and must be justified by specific circumstances. The panel ultimately annulled parts of the DRC's decision, ruling in favor of Smouha and dismissing other claims. The case highlights the complexities of joint liability in sports law and the need for a balanced approach that considers the unique facts of each dispute.