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CAS 2023/A/9412 — Deportivo Saprissa v. Hapoel Beer Sheva FC

"Saprissa v. Hapoel Beer Sheva" · CAS upheld a USD 375,000 sell-on fee triggered when a player's exit clause was activated by a third-party club, constituting a 'transfer'.

What happened in Saprissa v. Hapoel Beer Sheva

This case arose from the 2020 transfer of Costa Rican player Jimmy Marin Vilchez from Israeli club Hapoel Beer Sheva FC to Costa Rican club Deportivo Saprissa for a nominal fee of USD 1,000. The Transfer Agreement contained a sell-on clause (Article 4) entitling Hapoel Beer Sheva to USD 375,000 if the player was subsequently transferred to another club for USD 600,000. In the summer of 2022, FC Orenburg paid USD 600,000 directly to Saprissa to activate an exit clause in the player's employment contract, and the player's registration moved to FC Orenburg. Hapoel Beer Sheva claimed the sell-on fee; Saprissa argued the player had unilaterally terminated his contract, meaning no 'transfer' occurred and the sell-on clause was not triggered. The FIFA Players Status Chamber Single Judge upheld Hapoel Beer Sheva's claim on 6 December 2022, ordering Saprissa to pay USD 375,000 plus 5% interest per annum from 19 July 2022. Saprissa appealed to CAS. The CAS Panel dismissed the appeal, holding that the movement of the player's registration from Saprissa to FC Orenburg — regardless of whether it occurred within or outside a contractual scheme — constituted a 'transfer' under the broad definition in the FIFA RSTP and triggered the sell-on clause. The case matters because it confirms that exit-clause activations by third-party clubs fall within the scope of broadly worded sell-on clauses.

Procedural history of CAS 2023/A/9412

On 6 September 2022, Hapoel Beer Sheva filed a claim before the FIFA Players Status Chamber (FIFA PSC) seeking USD 375,000 plus 5% interest per annum from 19 July 2022 as an outstanding sell-on fee under Article 4 of the Transfer Agreement. On 6 December 2022, the Single Judge of the FIFA PSC issued the Appealed Decision upholding the claim in full, ordering Saprissa to pay USD 375,000 plus 5% interest p.a. from 19 July 2022, and imposing procedural costs of USD 25,000 on Saprissa. The grounds of the Appealed Decision were notified to the parties on 11 January 2023. On 31 January 2023, Saprissa filed its Statement of Appeal with CAS under Articles R47 and R48 of the CAS Code (2022 edition), seeking annulment of the FIFA PSC decision and rejection of Hapoel Beer Sheva's claim in its entirety. FIFA renounced its right to intervene on 22 February 2023. An oral hearing was held by videoconference on 28 February 2024.

Key holdings in CAS 2023/A/9412

• A 'transfer' in professional football refers broadly to the movement of a player's registration from one club or association to another, and may occur both within and outside a contractual scheme, including following unilateral termination or exercise of an exit clause.
• A sell-on clause not expressly limited to a 're-sale' is triggered by any form of movement of a player's registration to a new club for value, consistent with the real and common intent of the parties under Article 18 CO.
• Where an exit clause in an employment contract is worded to be triggered by a 'club at the international level' providing a written offer and paying the stipulated sum, the exit clause is activated by the third-party club, not by the player unilaterally.
• It is not dispositive whether the employment contract was terminated unilaterally by the player prior to his move; the sell-on clause is triggered by the transfer of the player's registration for value regardless of the mechanism of departure.
• Denying the selling club its contractually agreed sell-on fee in circumstances where the buying club received USD 600,000 in connection with the player's departure would be contrary to the principle of good faith.

How the CAS panel reasoned

The Panel applied Article 18 of the Swiss Code of Obligations to determine the real and common intent of the parties as to the sell-on clause's coverage. It first established the contextual meaning of 'transfer' in professional football by reference to the FIFA RSTP definitions (movement of a player's registration between associations or clubs) and prior CAS decisions, concluding that a transfer may occur within or outside a contractual scheme. The Panel then assessed the purpose of the sell-on clause: Hapoel Beer Sheva had sold the player for a nominal USD 1,000 during the Covid-19 pandemic on the condition of retaining a share of future value, and Saprissa benefited from a reduced initial fee. The Panel rejected Saprissa's argument that the sell-on clause required the employment contract to be 'in force' and a 'second international sale' to occur, finding no such express limitation in Article 4. It distinguished CAS 2010/A/2098 (where the operative word was 're-sale') and followed CAS 2019/A/6525, which held that broadly worded sell-on clauses cover all transfers for value. The Panel also found that the Exit Clause Agreement signed by Saprissa, the player and FC Orenburg on 30 June 2022 confirmed the employment contract remained valid until FC Orenburg paid USD 600,000, undermining Saprissa's unilateral-termination narrative.

Why Saprissa v. Hapoel Beer Sheva matters in CAS jurisprudence

This award reinforces the broad interpretation of 'transfer' in professional football sell-on clause disputes, confirming that exit-clause activations by third-party clubs constitute a 'transfer' triggering broadly worded sell-on obligations. It extends the reasoning of CAS 2019/A/6525 to exit-clause scenarios and clarifies that the mechanism of a player's departure — whether by mutual agreement, unilateral termination, or exit-clause payment — does not determine whether a sell-on clause is activated, absent express contractual limitation.

Cases cited in this award

CAS 2010/A/2098 CAS 2016/A/4585 CAS 2019/A/6525 CAS 2021/A/8099 CAS 2016/A/4379

Frequently asked questions about Saprissa v. Hapoel Beer Sheva

Did the Saprissa v. Hapoel Beer Sheva case decide that an exit clause payment counts as a transfer for sell-on clause purposes?

Yes. The CAS Panel held that the movement of Jimmy Marin Vilchez's registration from Deportivo Saprissa to FC Orenburg — facilitated by FC Orenburg paying USD 600,000 to activate the exit clause in the player's employment contract — constituted a 'transfer' within the broad definition in the FIFA RSTP. The Panel found this triggered the sell-on clause in Article 4 of the Transfer Agreement, obligating Saprissa to pay Hapoel Beer Sheva USD 375,000 plus 5% interest per annum from 19 July 2022.

What was the sell-on clause structure in the Saprissa v. Hapoel Beer Sheva transfer agreement?

Under Article 4 of the Transfer Agreement, if the player was transferred from Saprissa to another club, Hapoel Beer Sheva was entitled to the first USD 150,000 of any sale or loan proceeds, plus 50% of any amount exceeding USD 150,000. In the case of a player swap, the transaction was deemed to be made for USD 600,000 and Saprissa was required to pay Hapoel Beer Sheva USD 375,000 within 7 days of signing such agreement. The clause was valid for the duration of the player's employment contract with Saprissa, which had a termination date of 31 May 2023.

Why did Saprissa argue the sell-on clause was not triggered, and how did CAS respond?

Saprissa argued that the player had unilaterally terminated his employment contract via an exit clause before joining FC Orenburg, meaning no 'transfer' occurred and the sell-on clause — which Saprissa said required the contract to be 'in force' and a 'second international sale' to take place — was not activated. The CAS Panel rejected this, finding that the Exit Clause Agreement signed by Saprissa, the player and FC Orenburg on 30 June 2022 confirmed the employment contract was still valid at that point, and that even if the contract had been terminated, a transfer can occur outside a contractual scheme under CAS jurisprudence, including CAS 2019/A/6525.

How does the Saprissa v. Hapoel Beer Sheva award differ from CAS 2010/A/2098 on sell-on clauses and unilateral termination?

In CAS 2010/A/2098 (Sevilla v. RC Lens), the sell-on clause was limited to a 're-sale' of the player, and the panel found that a unilateral termination fell outside that specific wording. In Saprissa v. Hapoel Beer Sheva, the sell-on clause used the broader word 'transfer' alongside 'sale,' 'loan,' and 'players swap,' without expressly limiting activation to a re-sale. The CAS Panel distinguished the two cases on this basis and followed CAS 2019/A/6525, holding that the broader wording covered the exit-clause payment scenario.

Topics: Art. 17 RSTP & contract termination at CAS

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