The case involves a dispute between Club Atlético Newell’s Old Boys (CANOB) and AS Roma over the transfer of a football player, referred to as A., from AS Roma to Spartak Moscow. The arbitration was conducted by the Court of Arbitration for Sport (CAS), with a sole arbitrator issuing the award on November 23, 2021. The dispute centered on a sell-on clause in the original transfer agreement between CANOB and AS Roma, which entitled CANOB to 40% of any future transfer fee (reducible to 20% under certain conditions). AS Roma transferred A. to Spartak Moscow in 2019 for a fixed fee of €3 million, with potential variable fees up to €3 million based on performance conditions, and a 20% sell-on clause for any future transfer exceeding €6 million. CANOB alleged that AS Roma manipulated the transfer fees of A. and another player, B., to reduce the sell-on fee owed to them.
The key legal issues included contractual simulation under Swiss law, where parties create a false appearance of a legal act to conceal another agreement. The arbitrator noted that if a simulated act is proven, it is void, while the concealed act remains valid if it meets legal requirements. The burden of proof under Swiss law was also discussed, with mechanisms to ease this burden when direct evidence is inaccessible. CANOB argued that the transfers of A. and B. were interconnected, with A.'s fee undervalued and B.'s inflated to obscure the true market value of A. AS Roma denied these allegations, asserting the transfers were independent and the fees reflected market values.
The arbitrator examined evidence, including expert reports from both parties. CANOB's expert, Rafaelle Poli, estimated A.'s fair transfer value at €8.1 million, while AS Roma's expert, Omar Ongaro, argued that player valuations are subjective and the agreed fee was reasonable. The arbitrator found discrepancies in the transfer fees, concluding that A.'s fee was undervalued and B.'s was inflated, suggesting artificial structuring to conceal A.'s true value. However, precise valuation was challenging, so the arbitrator applied Article 42(2) of the Swiss Code of Obligations to estimate damages.
The arbitrator rejected CANOB's claim of a €5.95 million transfer fee, instead estimating A.'s value at €5 million. This resulted in a sell-on fee of €2 million, minus an already paid amount of €1.2 million, leaving AS Roma liable for €800,000 plus interest at 1% monthly from June 16, 2019. The CAS partially upheld CANOB's appeal, setting aside the earlier FIFA decision and ruling in favor of CANOB for the reduced amount. The case highlights the complexities of football transfer agreements, the challenges of proving financial manipulation, and the application of equitable principles in resolving contractual disputes. The final decision required AS Roma to pay €800,000 plus interest, dismissing all other claims.