CAS Case Digest · Verified against the full award text

CAS 2015/A/4352 & CAS 2015/A/4353 — Club Atlético Vélez Sarsfield & Mauro Matias Zárate v. S.S. Lazio S.p.A.

"Zárate v. Lazio" · CAS set aside a EUR 5,265,000 compensation award against Zárate and Vélez, finding Lazio suffered no damage from the contract termination.

Award date	7 October 2016
Panel	President: Mr. José Juan Pintó; Arbitrators: Prof. Gustavo Albano Abreu; Prof. Luigi Fumagalli
Outcome	Appeals of Vélez and Zárate partially upheld; DRC items 2, 3, 6 and 7 set aside; neither Zárate nor Vélez must pay any compensation to Lazio; arbitration costs borne 75% by Lazio and 25% by Zárate; each party bears its own legal costs.
Provisions	Art. 17.1 RSTP (FIFA Regulations on the Status and Transfer of Players, 2012) Art. 17 par. 2 RSTP Art. 18.3 RSTP Art. 25.6 RSTP Art. R32 CAS Code Art. R36 CAS Code Art. R47 CAS Code Art. R49 CAS Code Art. R55 CAS Code Art. R58 CAS Code Art. R64 CAS Code Art. 66 FIFA Statutes Art. 67 FIFA Statutes Art. 182(3) PILA (Swiss Federal Act on Private International Law) Art. 190(2)(e) PILA Art. 194 PILA Art. 25 PILA Art. 328 Swiss Code of Obligations Art. 337 Swiss Code of Obligations Art. 1453 Italian Civil Code Art. 1455 Italian Civil Code Art. 1458 Italian Civil Code Art. 7.1 Italian Collective Bargaining Agreement Art. 11.1 Italian Collective Bargaining Agreement Art. 12.2 Italian Collective Bargaining Agreement

What happened in Zárate v. Lazio

Mauro Matias Zárate, an Argentine footballer, signed a five-year employment contract with S.S. Lazio on 4 June 2009. From December 2012, Lazio excluded him from first-team training — a practice known as 'fuori rosa' — without written notice or formal procedure. After failed reinstatement demands and protracted Italian arbitration proceedings, Zárate unilaterally terminated the contract on 1 July 2013 and signed with Vélez Sarsfield. Lazio filed a FIFA DRC claim seeking EUR 10,189,200 in compensation. On 2 July 2015, the DRC awarded Lazio EUR 5,265,000 plus 5% interest, with Vélez jointly and severally liable. Both Zárate and Vélez appealed to CAS. The Panel first held that the Italian Arbitral Tribunal's award of 22 July 2013 — which rejected Zárate's termination-with-just-cause claim — had res iudicata effect, precluding CAS from declaring the termination justified. However, the Panel then found that even accepting the termination was without just cause, Lazio suffered no direct or indirect damage: the unamortised transfer cost (reduced to EUR 1,501,912 after accounting for the EUR 2,700,000 Inter loan fee) was lower than the gross salary Lazio would have had to pay for the remaining season (EUR 2,997,287.11). CAS set aside the DRC decision and awarded Lazio nothing, with 75% of arbitration costs borne by Lazio.

Procedural history of CAS 2015/A/4352

On 4 March 2013, Zárate filed a claim before the Italian Collegio Arbitrale (established under the Italian Collective Bargaining Agreement) seeking contract termination with just cause and damages. On 1 July 2013, before the Italian tribunal ruled, Zárate unilaterally terminated the contract by notarial letter. The Italian Arbitral Tribunal rendered its award on 22 July 2013, rejecting Zárate's claims and ordering him to pay Lazio EUR 10,000 in legal costs. On 30 September 2013, Lazio filed before the FIFA DRC against Zárate and Vélez seeking EUR 10,189,200 in compensation. Zárate filed a counterclaim for EUR 4,614,900.24. On 2 July 2015, the FIFA DRC partially upheld Lazio's claim, ordering Zárate to pay EUR 5,265,000 plus 5% interest from 30 September 2013, with Vélez jointly and severally liable. Both Vélez (CAS 2015/A/4352) and Zárate (CAS 2015/A/4353) filed Statements of Appeal on 14 December 2015. The proceedings were consolidated. Lazio's answer was declared inadmissible as filed 20 days after the deadline. A hearing was held in Lausanne on 5 July 2016.

Key holdings in CAS 2015/A/4352

The Italian Arbitral Tribunal's award of 22 July 2013 rejecting Zárate's just-cause termination claim has res iudicata effect before CAS, precluding re-litigation of whether the contract was terminated with just cause.
Res iudicata extends only to the operative part (dispositif) of the Italian Award, not to its reasons, in accordance with Swiss Federal Tribunal jurisprudence (4A_633/2014).
Even where a player terminates a contract without just cause under Art. 17 RSTP, compensation is only payable if the club demonstrates actual damage; Lazio suffered no direct or indirect damage (neither damnum emergens nor lucrum cessans) from the termination.
The EUR 2,700,000 loan fee received from Inter must be deducted when calculating the unamortised transfer investment, reducing the unamortised amount from EUR 4,201,912 to EUR 1,501,912.
Lazio's answer to the appeals was inadmissible under Art. R55 CAS Code because it was filed 20 days after the deadline had already expired, and the Respondent's failure to seek an extension before expiry was solely its own fault.

How the CAS panel reasoned

The Panel addressed two sequential questions. First, on res iudicata: applying Swiss Federal Tribunal case law (4A_374/2014; 4A_633/2014), it confirmed that res iudicata is part of procedural public policy and applies between a CAS tribunal and a foreign arbitral tribunal. Because the parties and the object of the Italian proceedings were identical to those before CAS, the Panel was bound by the Italian Award's operative part rejecting Zárate's just-cause claim. The Panel stressed, however, that only the dispositif — not the reasoning — carried binding effect. Second, on compensation: the Panel applied Art. 17.1 RSTP and CAS precedent (CAS 2004/A/662; CAS 2008/A/1519-1520) requiring proof of actual damage. It found no damage because: (a) the unamortised investment (EUR 1,501,912 after deducting the Inter loan fee) was lower than the gross salary Lazio would have owed for the final season (EUR 2,997,287.11); (b) the coach's dislike of the player made his real sporting value to Lazio negligible; (c) the player's depressed market value — caused by Lazio's own decision to exclude him from training — could not benefit Lazio; and (d) the 'specificity of sport' criterion under Art. 17.1 RSTP reinforced the equitable outcome given Lazio's reprehensible 'fuori rosa' conduct.

Why Zárate v. Lazio matters in CAS jurisprudence

This award is significant for establishing that under Art. 17.1 RSTP compensation requires proof of actual damage, not merely a finding of unjustified termination. It also clarifies the interplay between res iudicata from a domestic sports arbitration and CAS proceedings, confirming that only the operative part of a prior award binds CAS. The decision further establishes that a club's own conduct in depressing a player's market value (through 'fuori rosa' exclusion) cannot be used to inflate its compensation claim.

Decision: Appeals of Vélez and Zárate partially upheld; DRC items 2, 3, 6 and 7 set aside; neither Zárate nor Vélez must pay any compensation to Lazio; arbitration costs borne 75% by Lazio and 25% by Zárate; each party bears its own legal costs.

Cases cited in this award

CAS 2004/A/662 RCD Mallorca SAD vs Club Atletico Lanus CAS 2008/A/1519-1520 4A_374/2014 (Swiss Federal Tribunal, 26 February 2015) 4A_633/2014 (Swiss Federal Tribunal) 4A_70/2015 (Swiss Federal Tribunal) 4A_508/2010 (Swiss Federal Tribunal, 14 February 2011)

Frequently asked questions about Zárate v. Lazio

Did CAS find that Zárate had just cause to terminate his contract with Lazio?

No. The Panel held that the Italian Arbitral Tribunal's award of 22 July 2013 — which rejected Zárate's just-cause termination claim — had res iudicata effect, binding CAS under Swiss procedural public policy. CAS therefore could not re-examine whether the termination was justified, even though it noted Lazio's 'reprehensible conduct' in excluding the player from training.

Why did CAS award Lazio no compensation even though Zárate terminated the contract without just cause?

Under Art. 17.1 RSTP and CAS jurisprudence, compensation requires proof of actual damage. The Panel found that the unamortised transfer investment (reduced to EUR 1,501,912 after deducting the EUR 2,700,000 Inter loan fee) was lower than the gross salary Lazio would have had to pay for the remaining season (EUR 2,997,287.11). Combined with the player's negligible sporting value to Lazio and his depressed market price caused by Lazio's own exclusion of him from training, the Panel concluded Lazio suffered no direct or indirect damage.

Was Vélez Sarsfield held jointly and severally liable for the compensation in the Zárate v. Lazio case?

No. The FIFA DRC had ordered Vélez jointly and severally liable for the EUR 5,265,000 compensation. CAS set aside that finding entirely because it concluded Lazio suffered no compensable damage, making any question of Vélez's joint liability unnecessary to decide.

Why was Lazio's answer to the CAS appeals declared inadmissible in the Zárate case?

Lazio filed its consolidated answer on 14 March 2016, twenty days after the Art. R55 CAS Code deadline of 23 February 2016 had already expired. The Panel held that extensions can only be granted before a deadline expires and that Lazio's failure to act in time was solely its own fault. The Panel confirmed that the inadmissibility did not violate Lazio's right to be heard because Lazio had a full opportunity to present its case at the hearing on 5 July 2016.

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Topics: Art. 17 RSTP & contract termination at CAS

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