CAS Case Digest · Verified against the full award text

CAS 2021/A/8365 — Torino Football Club S.p.A. v. Club Atlético Osasuna

"Torino v. Osasuna" · CAS upheld a EUR 1,500,000 penalty clause triggered by Torino's transfer of Alejandro Berenguer to Athletic Bilbao, rejecting Art. 18bis illegality and disproportionality defences.

What happened in Torino v. Osasuna

In July 2017, Torino FC acquired Spanish player Alejandro Berenguer from Osasuna for EUR 5,500,000. Clause 2.4 of the transfer agreement required Torino to pay Osasuna EUR 1,500,000 if it ever sold Berenguer to Athletic Club de Bilbao — a club known for fielding only Basque-origin players. In October 2020, Torino sold Berenguer to Athletic Bilbao for EUR 10,000,000 (plus bonuses of up to EUR 1,500,000). Osasuna demanded payment; Torino refused. The FIFA Players' Status Committee (PSC) ordered Torino to pay EUR 1,500,000, finding the clause valid and proportionate. Torino appealed to CAS, arguing: (1) the clause violated FIFA RSTP Art. 18bis (third-party influence on clubs) and was therefore an unlawful undertaking unenforceable under SCO Art. 163(2); and (2) alternatively, the penalty was excessive and should be reduced under SCO Art. 163(3). CAS dismissed both arguments. The panel held that Art. 18bis carries only disciplinary consequences and does not render a contractual clause invalid or unenforceable; the FIFA PSC's competence is distinct from the FIFA Disciplinary Committee's. The panel further held that 27.3% of the original transfer fee was not a massive imbalance justifying reduction. The award matters because it definitively separates the disciplinary and contractual planes of Art. 18bis analysis.

Procedural history of CAS 2021/A/8365

On 10 February 2021, Osasuna filed a claim before the FIFA Players' Status Committee (PSC) seeking EUR 1,500,000 under Clause 2.4 of the 2017 transfer agreement. On 10 August 2021 (notified 9 September 2021), the single judge of the FIFA PSC partially accepted the claim, ordering Torino to pay EUR 1,500,000, imposing a warning, and allocating CHF 20,000 of the CHF 25,000 procedural costs to Torino. On 30 September 2021, Torino filed a Statement of Appeal with CAS under Art. R48 of the CAS Code. Torino filed its Appeal Brief on 9 November 2021; Osasuna filed its Answer on 31 December 2021 (updated 2 January 2022). A video-conference hearing was held on 18 February 2022. CAS was asked to set aside the FIFA PSC decision and either cancel the EUR 1,500,000 penalty or reduce it to 5% of the relevant transfer amount.

Key holdings in CAS 2021/A/8365

• FIFA RSTP Art. 18bis is not concerned with the validity or binding nature of contractual provisions; its only prescribed consequence is a disciplinary measure by the FIFA Disciplinary Committee under Art. 18bis(2).
• A contractual clause that may violate FIFA RSTP Art. 18bis remains valid and enforceable under the principles of contractual freedom and pacta sunt servanda, because FIFA has not intended to regulate civil invalidity through that provision.
• The concept of 'unlawful undertaking' in SCO Art. 163(2) refers to undertakings unlawful under mandatory law; a breach of FIFA regulations, which carries only disciplinary consequences, does not constitute such an unlawful undertaking.
• Reduction of a contractual penalty under SCO Art. 163(3) is reserved for exceptional cases involving a massive imbalance; a penalty of 27.3% of the original transfer fee (EUR 1,500,000 of EUR 5,500,000) does not meet that threshold.
• The written witness statement of a party who does not appear for cross-examination must be struck from the file, as the opposing party's right to cross-examine is essential to a fair trial.

How the CAS panel reasoned

The panel structured its analysis around three sequential questions. First, on Art. 18bis, it noted that CAS jurisprudence (CAS 2017/A/5463; CAS 2020/A/7417; CAS 2020/A/7158) demands a restrictive, case-by-case approach requiring real and material influence — not merely hypothetical financial restriction. The panel found it 'rather doubtful' whether the clause crossed that threshold but left the question open because it was immaterial to the outcome. Second, on enforceability, the panel reasoned that Art. 18bis(2) expressly limits consequences to disciplinary measures by the FIFA Disciplinary Committee, a body distinct from the FIFA PSC. The absence of any FIFA regulation providing for civil invalidity was treated as deliberate legislative silence: FIFA intended only disciplinary sanctions. This was confirmed by CAS 2018/A/6027. Accordingly, SCO Art. 163(2) was inapplicable because a FIFA regulatory breach does not constitute an 'unlawful undertaking' under mandatory law. Third, on reduction, the panel applied the 'massive imbalance' standard from CAS 2012/A/2847 and CAS 2015/A/3909. It observed that 27.3% of EUR 5,500,000 was modest compared to the EUR 10,000,000 Athletic Bilbao paid, and that even after deducting EUR 1,500,000, Torino still netted more than it originally paid. No exceptional circumstances warranting reduction existed.

Why Torino v. Osasuna matters in CAS jurisprudence

This award authoritatively confirms the bifurcation between the disciplinary and contractual planes of FIFA RSTP Art. 18bis: a clause that may attract disciplinary sanction under Art. 18bis cannot, on that basis alone, be declared civilly unenforceable. The panel's reasoning — that FIFA's deliberate silence on civil invalidity means only disciplinary consequences apply — reinforces the principle established in CAS 2018/A/6027 and provides clubs with certainty that contractually agreed transfer conditions survive regulatory scrutiny unless independently invalidated under applicable civil law.

Cases cited in this award

CAS 2017/A/5463 CAS 2020/A/7417 CAS 2020/A/7158 CAS 2018/A/6027 CAS 2012/A/2847 CAS 2015/A/3909

Frequently asked questions about Torino v. Osasuna

Did the Torino v. Osasuna CAS case decide that an Art. 18bis violation makes a transfer clause unenforceable?

No. The panel held that Art. 18bis(2) limits consequences exclusively to disciplinary measures by the FIFA Disciplinary Committee and does not render a contractual clause invalid or unenforceable. The FIFA PSC, which handles contractual disputes, operates on a separate plane from the disciplinary bodies, so a potential Art. 18bis breach had no bearing on Torino's obligation to pay the EUR 1,500,000 penalty.

Was the EUR 1,500,000 penalty clause in the Berenguer transfer agreement reduced by CAS as excessive?

No. CAS applied the SCO Art. 163(3) standard requiring a 'massive imbalance' and found the penalty — 27.3% of the original EUR 5,500,000 transfer fee — was modest and proportionate, especially since Athletic Bilbao paid EUR 10,000,000 for the player and Torino still netted more than it originally paid even after deducting the EUR 1,500,000. The panel cited CAS 2012/A/2847, where a 33% penalty was not considered excessive.

What was the 'anti-rival clause' argument Torino made in the Osasuna case and why did it fail?

Torino argued that Clause 2.4 — requiring a EUR 1,500,000 payment only if the player was sold to Athletic Bilbao, Osasuna's historic Basque rival — was an 'anti-rival clause' violating Art. 18bis because it materially influenced Torino's transfer policy. The panel found this argument immaterial because even assuming an Art. 18bis violation, the only prescribed consequence is a disciplinary sanction; the clause remained contractually valid and enforceable under pacta sunt servanda.

Why was Urbano Cairo's witness statement struck from the file in the Torino v. Osasuna CAS proceedings?

Mr Cairo, Torino's chairman, submitted a written statement in the Appeal Brief but did not appear at the 18 February 2022 video-conference hearing. The panel held that the right to cross-examine a witness is essential to a fair trial and that Torino provided no reasonable explanation for his absence. Because Osasuna was denied the opportunity to cross-examine him, the statement was removed from the file and given no evidentiary value.

Topics: Transfers, agents, TPO & sell-on clauses at CAS

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