Kakuta who?

Published 19 January 2010 By: Daniel Geey

What has happened?

On 3 September 2009 the FIFA Dispute Resulution Chamber (the DRC) ruled on a case concerning French player Gael Kakuta and Chelsea. The DRC heavily sanctioned Chelsea for inducing the player to breach his contract with Lens. Chelsea are thought to have believed that there was no signed contract in place between Kakuta and Lens and was therefore available to be signed once Kakuta turned 16. As a result, Chelsea have been banned from registering any player until the January 2011 transfer window and must pay compensation to the tune of almost €1m.

Lens claim that Kakuta signed a "contract aspirant" or an “accord de non solicitation” with Lens before his 16th birthday tying him to the club until 2008. English clubs have taken advantage of signing youth players because they can sign 16 year old players on scholarship training schemes. Other continental clubs appear to be at a disadvantage because of national employment laws. Clubs like Barcelona have lost talented youngsters like Cesc Fabregas to Arsenal and Gerard Pique to Manchester United, before the later moved back to the Catalonia because they were not permitted to sign 16 year old players.

France for example, has legislated so that such pre-contracts (the "contract aspirant" or the “accord de non solicitation discussed above) can be signed before a French academy player turns 16. The Kakuta case may indeed turn on the validity of such a pre-contract. Francis Collado, a former director of Lens explained that at:

“…14 we proposed a contract. In effect this was a pre-contract because in France you can't pay a player until he's 16. The contract was registered with the French FA and the French league.”

FIFA’s Rules and the Procedure

FIFA’s heavy punishment is based on the FIFA Regulations on the Status and Transfer of Players. Article 17.4 below relates to when a club and/or player terminates a contract without just cause. It states:

“It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. The club shall be banned from registering any new players, either nationally or internationally, for two registration periods.”

The rule makes reference to the consequence of a club inducing a breach being banned from registering any new players for two transfer windows. At present, it means that Chelsea will be banned from the January and August 2010 transfer windows. For Chelsea, there may however be various tactical considerations in appealing the DRC decision.

Who is CAS and what will happen next?

Should Chelsea appeal the DRC decision, the Court of Arbitration for Sport (CAS) in Lausanne will make a final judgment on any appeal. There is the ability to appeal a CAS decision but the avenues for appeal are very narrow.

CAS describe themselves as “an institution independent of any sports organization which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world.”

CAS has the ability through its arbitration appeals procedure to rule on disputes stemming from decisions, like that  taken by FIFA in the Kakuta ruling. The CAS procedure enables the parties to the dispute to have a final decision usually within four months of the filling of the appeal. There is also a fast-track avenue that allows decisions to be made even quicker.

There will be various tactical considerations for Chelsea to decide upon when they appeal. Their main objective may be to ensure the FIFA sanction is suspended until the final decision by CAS. This would enable the club to purchase players in the January transfer window should they need to. FIFA may contend that such a freezing order, decided on by CAS, would blunt any sanction as Chelsea could stock up on players in advance of any subsequent ban. Chelsea would argue however that should the transfer ban not be frozen, and they are cleared by CAS in the appeal, they have been unfairly prohibited from purchasing players.

CAS secretary general Matthieu Reeb explained that:

"If we have an appeal within the next week, it seems realistic we will have a hearing in November and a decision in December. If it goes a little longer, we'd have to wait until next year but then we'd have a problem with the January transfer period. This means the enforcement of the Fifa decision would not be immediate. It could be postponed and then if the sanction was finally confirmed by Cas, the suspension would be postponed to the next transfer window."

Mr Reeb seems to be suggesting that should Chelsea delay their appeal they may be able to have their transfer ban frozen until a decision early next year.  Should an appeal begin in October for example, a four-month procedure could mean a decision in January/February. If the transfer ban was frozen, then Chelsea would still be able to purchase players in the January 2010 window. This may become even more important to Chelsea’s team planning with the African Cup of Nations taking Mikel, Kalou, Essien and Drogba for part of the season.

Other CAS arbitration FIFA transfer ban examples

The CAS has previously suspended a FIFA transfer ban pending a final appeal decision. In 2005, the CAS ruled on an appeal concerning French defender Philippe Mexès. After a previous DRC decision banning Italian club Roma for registering any player for two transfer windows for inducing French defender Philippe Mexès to breach his contract with Auxerre, the CAS reduced the Italian club’s ban to just the January 2006 transfer window.

As recently as May 2009, Swiss club Sion, was banned for two transfer windows after the DRC sanctioned the Switzerland based club for inducing Essam El Hadary from Egyptian side Al Ahly to breach his contract. Sion subsequently appealed to CAS for the two transfer window sanction to be frozen until a final decision by the CAS is made. This was granted by the CAS in July 2009. Should a CAS decision not be possible before the January transfer window, it seems likely that Chelsea will follow the Sion path of asking for a transfer ban suspension until the CAS appeal reaches its conclusion.

The world of football now certainly knows all about Gael Kakuta.

Article obtained from https://www.ffw.com, the website of Field Fisher Waterhouse. Article reproduced with their kind permission.

For more information, contact Daniel Geey

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Daniel Geey

Daniel Geey

Daniel is a Partner in the Sport Group.

Daniel’s practice focuses on helping clients in the sports sector, including rights holders, leagues, governing bodies, clubs, agencies, athletes, sports technology companies, broadcasters and financial institutions.

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