We are delighted to announce that our partner Filip Blagojevic successfully challenged the FIFA Dispute Resolution Chamber Decision in a dispute between a Serbian football player Milos Jokic (the “Player”) and a Greek football club PAS Lamia (the “Club”). Although the dispute arose from the shortest possible document, a pre-contract that contained only one sentence (the “Pre-Contract”), it involved two very important legal issues – conflict of jurisdiction and pre-contractual arrangements in football. The latter question keeps on remaining complex, since it is not regulated by the FIFA Regulations on Status and Transfer of Players, nor through the regulations of many (if not all) national federations.

Brief chronology of the case:

  1. In August 2015, the Parties signed a contract valid until the end of the season i.e. 30 June 2016. The contract was signed on the HFF template (which refers the Parties to the Greek NDRC);
  2. At the end of the season 2015/16, the Player started receiving verbal offers from various Greek clubs, based on his good performances. Accordingly, the Club offered him a 1+1 deal, with the cooperation in the second season being subject to the Club’s promotion to the Greek Superleague. It shall be noted that the HFF template contract does not foresee a possibility of drafting a 1+1 commitment, but only allows the Parties to insert the starting and ending date (which suggests a necessity of concluding a separate annex);
  3. in June 2016, the Parties signed a 1-sentence-long document, titled “Professional Player’s Pre-Contract”. This document states how high the Player’s salary would be in 2017/2018, should the club secure the promotion. Obviously, the Pre-Contract was silent on the dispute resolution mechanism.
  4. In August 2016, i.e. two months afterwards, the Parties concluded a template contract for 2016/17, valid until 30 June 2017, which referred them to the NDRC. This contract did not make any reference to the Pre-contract, nor to the season 2017/18;
  5. at the end of the season 2016/17, the Club secured a promotion to the Superleague, but decided not to continue the cooperation with the Player for 2017/18 (due to his injuries). The Club did not provide an explanation, except for denying a binding arrangement for 2017/18 with the Player;
  6. in August 2017, the player signed a contract with another club for a lower salary than the one stated in the Pre-Contract.

Holding that the Pre-Contract’s lack of the dispute resolution clause triggered the default jurisdiction of FIFA pursuant to Article 22 of the FIFA RSTP, the Player filed a claim and requested compensation for the damages incurred during the 2017/18 season.

During the FIFA proceedings, the Club challenged the jurisdiction of FIFA, given that the contracts signed before and after the Pre-Contract referred the Parties to the Greek NDRC, while the Pre-Contract was silent on the issue. Moreover, the Pre-Contract was deemed invalid by the Club, as it merely contained a promisse on how high the Player’s salary would be, should the Parties agreed to extend the cooperation in 2017/18. Finding the Club’s jurisdictional objection grounded, a 5-member Dispute Resolution Chamber of FIFA unanimously declared the claim inadmissible, qualifying the Pre-Contract, in essence, as an extension clause of the first employment contract (signed in August 2015) and invoking the CAS Award 2983 (which concluded that the NDRC complied with the necessary standards set out by FIFA).

In his appeal, the Player has argued that (i) the Club had a burden of proving that the Greek NDRC complied with the necessary requirements and failed to discharge it (inter alia referring to the conclusions made in the CAS Award 3656, rendered two years after CAS 2983); (ii) the Greek NDRC does not comply with these requirements; (iii) the Pre-Contract had a different temporal scope than the aforementioned employment contracts, as well as a different nature and purpose and, as such, should not inherently ‘take over’ their dispute resolution clause, i.e. the (only) document in question referred the Parties to FIFA (due to its silence on the dispute resolution mechanism). Given that the CAS shared the view from the third point, the first two remained unaddressed.

As to the merits, the Player has submitted that: (i) the Pre-Contract, in fact, contained all essentialia negotii established by the FIFA jurisprudence; (ii) pre-contracts do not even need to contain all essentialia negotii, in order to be binding for its signatories, as otherwise there would be no difference between contracts and pre-contracts (which was established by various CAS panels); (iii) the Club breached the Pre-Contract and ignored its obligation towards the Player, which caused him the damages.

In this regard, the CAS held that the Pre-Contract was valid and had started having effects as soon as the suspensive condition was met (when the Club secured a promotion to the Greek Superleague) and that the Club breached it without a valid reason. However, it was established that a pre-contract could not be equated to a definitive employment contract and, as a consequence, the damages for breaching a pre-contract should not be equal to breaching a definitive employment contract. In this regard, it was concluded that the CAS arbitrators had a discretion in determining the amounts owed for the breach of a pre-contract, which led te CAS to set aside the challenged decision and partially award damage compensation to the Player.

Finally, the CAS confirmed the position of the Panel in CAS 2014/A/3690, also taken by the Player during the arbitration. As a consequence, the CAS decided not to reject the appeal based on the Player’s omission to designate FIFA as a party.