CAS Case Digest · Verified against the full award text

CAS 2015/A/4139 — Al Nassr Saudi Club v. Trabzonspor Football Club

"Al Nassr v. Trabzonspor" · CAS upheld a EUR 1,200,000 second transfer instalment and EUR 500,000 contractual penalty against Al Nassr for late payment.

What happened in Al Nassr v. Trabzonspor

On 12 June 2014, Al Nassr Saudi Club and Trabzonspor concluded a transfer agreement for player Adrian Mierzejewski for a net fee of EUR 3,200,000, payable in two instalments: EUR 2,000,000 on signing and EUR 1,200,000 by 31 December 2014. The agreement required Al Nassr to provide a bank guarantee by 1 July 2014 for the second instalment, failing which a penalty of EUR 500,000 plus EUR 50,000 per 30-day delay period would apply. Al Nassr paid the first instalment but sought to deduct 5% solidarity contribution from the second, claiming the 'net' clause was invalid. Trabzonspor filed before the FIFA Players' Status Committee Single Judge, who on 22 April 2015 ordered payment of EUR 1,200,000 plus 5% interest, EUR 500,000 penalty, and EUR 18,000 in costs, while rejecting the EUR 50,000 monthly penalty as excessive. Al Nassr appealed to CAS. The Panel dismissed the appeal in full, confirming that the 'net' payment clause was unambiguous, that clubs may contractually allocate solidarity contribution obligations internally, that Al Nassr's conduct in paying the first instalment without reservation precluded it from later challenging the agreement, and that the EUR 500,000 penalty was neither disproportionate nor grossly unfair under Swiss law. The case matters as a clear reaffirmation that 'net' transfer fee clauses shifting solidarity contribution burdens to the buying club are valid under the RSTP.

Procedural history of CAS 2015/A/4139

On 7 January 2015, Trabzonspor lodged a claim before the FIFA Players' Status Committee Single Judge seeking EUR 1,200,000 (second instalment), EUR 500,000 (contractual penalty), EUR 50,000 per 30-day delay period, 5% interest, and legal costs. On 22 April 2015, the Single Judge ordered Al Nassr to pay EUR 1,200,000 plus 5% interest p.a. from 1 January 2015, EUR 500,000 penalty within 30 days (with 5% interest if unpaid), and EUR 18,000 in proceedings costs; the Single Judge denied the EUR 50,000 monthly penalty as equivalent to approximately 50% p.a. interest and therefore excessive. Al Nassr filed its statement of appeal with CAS on 8 July 2015, which was treated as the appeal brief. The Respondent filed its answer on 7 September 2015. A hearing was held on 25 November 2015 in Lausanne, with Al Nassr participating by telephone conference after Skype technical difficulties. The Panel issued its award on 20 January 2016.

Key holdings in CAS 2015/A/4139

• A transfer agreement is binding on a party that paid the first instalment without reservation, precluding that party from later invoking a resolutive condition under the principle of 'venire contra factum proprium'.
• Clubs may validly agree that the buying club bears the solidarity contribution in addition to the transfer fee, provided the buying club remains externally responsible for paying it to training clubs, and such an internal arrangement is not prohibited by the RSTP.
• Where a transfer agreement unambiguously defines the fee as 'net' (i.e., after all legal deductions including solidarity contributions), the principle of 'in dubio contra stipulatorem' does not apply as no genuine ambiguity exists.
• A contractual penalty of EUR 500,000 on a EUR 1,200,000 instalment is not excessive under Article 163(3) CO where the breach was objectively severe, intentional, and committed by an experienced professional club that failed to pay even the undisputed portion of the debt.
• Under Article 163(3) CO, reduction of a contractual penalty is reserved for exceptional cases where the amount flagrantly exceeds what is admissible with regard to justice and equity; an unsubstantiated claim of financial difficulty by the debtor does not justify reduction.

How the CAS panel reasoned

The Panel first addressed the validity of the Agreement, finding that Al Nassr's payment of the first instalment without reservation constituted implicit acceptance that the resolutive condition in Article 4 would not apply, invoking 'venire contra factum proprium'. On the 'net' fee issue, the Panel found the wording of Article 2 para. 3 clear and unambiguous: 'net' was expressly defined as the amount after all legal deductions including solidarity contributions. Relying on CAS 2012/A/2707 and related cases, the Panel confirmed no legal obstacle prevents clubs from internally allocating the solidarity contribution burden to the buying club. Because the clause was clear, 'in dubio contra stipulatorem' was inapplicable. On the penalty, the Panel applied Articles 160, 161, and 163 CO and Swiss Federal Tribunal jurisprudence, examining five criteria: (i) the creditor's interest — Trabzonspor had legitimate security concerns given Al Nassr's alleged fragile finances; (ii) severity of breach — Al Nassr failed to pay even the undisputed EUR 1,040,000; (iii) intentionality — the Panel found intentional non-payment; (iv) business experience — Al Nassr was an experienced AFC Champions League participant; (v) financial situation — Al Nassr provided no evidence of financial hardship. All criteria weighed against reduction, and the Panel agreed with the Single Judge that EUR 500,000 was proportionate.

Why Al Nassr v. Trabzonspor matters in CAS jurisprudence

This award consolidates CAS jurisprudence — building on CAS 2012/A/2707 and related cases — that 'net' transfer fee clauses validly shift the solidarity contribution burden to the buying club without violating the RSTP, provided external obligations to training clubs are honoured. It also provides a structured five-factor framework under Swiss law for assessing whether contractual penalties in football transfer agreements are excessive, confirming that experienced clubs face a high threshold to obtain judicial reduction under Article 163(3) CO.

Cases cited in this award

CAS 2012/A/2707 CAS 2013/A/3403-3404&3405 CAS 2008/A/1544 CAS 2009/A/1773 & 1774 CAS 2008/A/1705 CAS 2008/A/1639

Frequently asked questions about Al Nassr v. Trabzonspor

Can a football transfer agreement require the buying club to pay the solidarity contribution on top of the transfer fee?

Yes. The Panel in Al Nassr v. Trabzonspor confirmed, following CAS 2012/A/2707, that there is no legal obstacle preventing clubs from agreeing that the buying club bears the solidarity contribution in addition to the transfer fee. The Agreement defined the EUR 3,200,000 fee as 'net' — expressly meaning the amount after all deductions including solidarity contributions — which the Panel found valid and binding. The gross equivalent was calculated at EUR 3,368,421.

Does the principle 'in dubio contra stipulatorem' apply to a clearly worded 'net' transfer fee clause?

No. The Panel held that 'in dubio contra stipulatorem' only applies where a contract is genuinely ambiguous. Because Article 2 para. 3 of the Agreement unambiguously defined 'net' as the amount after all legal deductions including solidarity contributions, there was no room for interpretation and the principle did not apply. Al Nassr's argument that Trabzonspor, as drafter, bore the burden of proving the clause's meaning was therefore rejected.

When will CAS reduce a contractual penalty clause in a transfer agreement under Swiss law?

Reduction under Article 163(3) CO is reserved for exceptional cases where the penalty flagrantly exceeds what is admissible with regard to justice and equity. In Al Nassr v. Trabzonspor, the Panel applied five criteria — creditor's interest, severity of breach, intentionality, business experience of the parties, and debtor's financial situation — and found all weighed against reduction of the EUR 500,000 penalty, noting that Al Nassr had not even paid the undisputed EUR 1,040,000 and had provided no evidence of financial hardship.

Can a club challenge a transfer agreement after paying the first instalment on the ground that a resolutive condition was not met?

No, at least where the club paid without reservation. The Panel in Al Nassr v. Trabzonspor held that by paying the first instalment of EUR 2,000,000 without any reservation, Al Nassr implicitly agreed that the resolutive condition in Article 4 of the Agreement — which would have voided the deal if the player and club had not reached agreement by 16 June 2014 — would not apply. Invoking that condition afterwards violated the principle of 'venire contra factum proprium'.

Topics: Training compensation & solidarity at CAS

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