FIFA’s
Dispute Resolution Chamber (“DRC”) has recently held that Juventus and Livorno
are jointly and severally liable to pay Chelsea £14.5m plus interest in
compensation following Adrian Mutu’s breach of contract without just cause back
in 2004.
Readers
will recall that Chelsea terminated Mutu's contract in October 2004 after he
tested positive for cocaine. Chelsea treated Mutu's actions as a repudiatory
breach of contract and claimed compensation in an attempt to recover part of
the £15.8m it initially spent in acquiring the player from Parma. The
procedural history has been long and protracted as the case has come before the
Court of Arbitration of Sport ("CAS") on three separate occasions.
CAS initially held that Mutu breached his contract with Chelsea without just
cause in December 2005 (CAS 2005/A/876
Mutu v Chelsea Football Club) and so Chelsea applied to FIFA's DRC for a compensation
award. The DRC initially decided that it did not have jurisdiction to make a
compensation award however CAS annulled that decision in May 2007 (CAS 2006/A/1192 Chelsea Football Club
Limited v Adrian Mutu). The case was referred back to the DRC and in May
2008 they ordered Mutu to compensate Chelsea in the sum of £14.5m. Mutu
subsequently appealed the decision to CAS who upheld the DRC's decision in July
2009 (CAS 2008/A/1644 Adrian Mutu v
Chelsea Football Club Limited).
Mutu
was banned by the Football Association for seven months in November 2004, which
was extended by FIFA's Disciplinary Committee to have worldwide effect. Despite
being banned, Mutu signed a five year contract with Juventus in January 2005
however they were unable to register Mutu directly due to restrictions on the
number of non-EU players that Serie A clubs can sign from abroad each season.
Juventus had already signed their permitted number of non-EU players from
abroad at the time Mutu signed with Juventus; Mutu was classified as a non-EU
player because Romania did not join the EU until 2007. However, there is no
restriction imposed on the number of non-EU players signed from other Italian
clubs so, in order to register Mutu, Juventus agreed with Livorno that Mutu
would initially be registered with them and then subsequently transferred to
Juventus thus making the transfer domestic and mean that the quota restriction
did not apply. Mutu eventually made his debut for Juventus in May 2005 once his
ban came to an end. Chelsea struggled to enforce the compensation award in
their favour against Mutu hence why they sought an award against Juventus and
Livorno.
Basis
The
decision by the DRC to rule that Juventus and Livorno are jointly and severally
liable for the compensation payment has surprised some who feel the sanction is
severe. However, Article 17.2 (formerly Article 22) of FIFA's Regulations on
the Status and Transfer of Players confirms that if a player is required to pay
compensation for terminating a contract without just cause, the player and
"his new club shall be jointly and severally liable for its payment"
and the decision is in line with previous DRC decisions and CAS jurisprudence
where the player's new club has been found jointly and severally liable for the
compensation payment "regardless of
any involvement or inducement of the player to breach his contract" (See
Paragraph 189 of CAS 2010/A/2147 Udinese Calcio S.p.A. v. Morgan de Sanctis
& Sevilla FC SAD). Juventus, and to a certain extent, Livorno should,
therefore, have been aware of the potential risk of being jointly liable for
any compensation payment at the time they came to the arrangement regarding the
registration of Mutu and exercised caution, particularly as Chelsea had
indicated their intention to seek compensation for Mutu's breach of contract.
Mutu's agent, Ioan Becali, clearly agrees after he declared following the
decision that "Juventus are to
blame".
Considerations
Article
17.2 was no doubt the basis of the DRC's ruling however the written decision is
eagerly awaited in order to see how the DRC addressed certain issues. An
obvious prejudice that Juventus and Livorno suffered was that they were not
parties to the previous CAS litigation and so were unable to challenge the
compensation award along with Mutu. The DRC, however, must have taken the view
that this did not affect Juventus' and Livorno's joint and several liability
under Article 17.2. Another interesting issue is the timing of Mutu's transfer
to Juventus. Juventus signed Mutu within three months of Chelsea terminating
Mutu's contract and whilst the player was still under a worldwide ban,
presumably to beat other clubs to his signature. Mutu's agent claimed following
the decision that "Juventus should
have waited for the seven month ban to expire as discussions were only allowed
to begin after that period." This suggests that the DRC found that if
Juventus had waited until the ban had expired, then they would not have found
Juventus and Livorno jointly and severally liable as the risk for a new club
could not have gone on indefinitely. Also, it is noteworthy that both Juventus
and Livorno were considered to be Mutu's new club as a result of the convenient
arrangement between the clubs. However, despite technically being the first
club to register Mutu following his departure from Chelsea, Livorno will
undoubtedly feel aggrieved with the decision as Mutu never actually played a
game for them and so they gained very little from assisting Juventus save for
the promise of having young players on loan from Juventus in the future.
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