CAS Case Digest · Verified against the full award text

CAS 2023/A/9963 — Santos Futebol Clube v. Unión Deportiva Almería SAD & FIFA

"Santos v. Almería (Kaiky)" · CAS upheld Santos' appeal, ordering Almería to pay EUR 2,725,728 after finding clause 2.11 of the transfer agreement was validly triggered.

What happened in Santos v. Almería (Kaiky)

This case arose from the July 2022 permanent transfer of Brazilian player Kaiky Fernandes Melo from Santos FC to Unión Deportiva Almería for EUR 7,000,000 payable in five instalments. The Transfer Agreement included clause 2.10 (allowing Santos to assign the first three instalments to a financial institution, with Almería covering costs up to 5.1% interest) and clause 2.11 (accelerating those three instalments if Santos could not secure the assignment within 30 days). Santos signed a non-binding Indicative Term Sheet with SUPERFUTE/BHP but the deal never closed. Santos notified Almería of its inability to complete the assignment and invoked clause 2.11. Almería refused, arguing the assignment had been perfected by the Notification of Assignment & Acknowledgement, and that Santos had acted in bad faith by concealing a EUR 3,374,099.48 tax debt to Spain's Agencia Tributaria. The FIFA Players' Status Chamber Single Judge found the claim premature. On appeal, CAS set aside that decision, holding that clause 2.11 was not voided by the Notification of Assignment, that Santos was genuinely unable to secure the assignment within the contractual deadline, and that Almería had not proven fraud or fundamental error under Swiss law. CAS ordered Almería to pay EUR 2,725,728 in total, with EUR 1,874,099.48 directed to the Agencia Tributaria and EUR 851,628.52 to Santos, plus 5% p.a. default interest. The case matters for its analysis of receivables-assignment fallback clauses in football transfer agreements.

Procedural history of CAS 2023/A/9963

On 17 February 2023, Santos filed a claim before the FIFA Players' Status Chamber (FIFA PSC) alleging Almería had breached the Transfer Agreement by failing to pay EUR 4,500,000. Santos sought either proof of payment of EUR 3,374,099.48 to the Agencia Tributaria plus EUR 851,128.52 to Santos, or alternatively EUR 4,425,728 plus interest. Almería countered that clause 2.11 was null and void due to Santos' alleged bad faith in concealing its tax debt. On 4 July 2023, a Single Judge of the FIFA PSC dismissed the claim as premature, finding the original payment schedule remained in effect and the next instalment was not yet due. The grounds were communicated on 17 August 2023. Santos filed its Statement of Appeal with CAS on 6 September 2023, within the 21-day limit under Article 57(1) of the FIFA Statutes. An in-person hearing was held on 3 May 2024. CAS was asked to set aside the Appealed Decision and order Almería to pay EUR 2,725,728 plus interest.

Key holdings in CAS 2023/A/9963

• Clause 2.11 of the Transfer Agreement was not voided by Santos' issuance of the Notification of Assignment & Acknowledgement, because that document cannot exist in isolation without a final and binding agreement between Santos and the financial institution for the purchase of receivables.
• Santos was unable to secure the assignment of receivables within the 30-day contractual deadline, and this inability was not due to Santos' own lack of diligence or negligence.
• The plain wording of clause 2.11, drafted by Almería, does not differentiate between inability attributable to Santos or to Almería; absent such a distinction, Almería accepted the risk of both situations.
• Almería failed to prove fraud (dol par omission) under Article 28 SCO or fundamental error under Article 23 SCO, as it did not establish that Santos had a duty to disclose its tax debt or that the assignment was made impossible by that debt.
• Default interest at 5% per annum under Article 2.12 of the Transfer Agreement and Article 104 SCO accrues from 19 October 2022 on EUR 851,128.52 and from 17 February 2023 on EUR 500.00.

How the CAS panel reasoned

The Panel applied a de novo review under Article R57 of the CAS Code, rejecting the FIFA Single Judge's unsupported finding that the parties had agreed to maintain the original payment schedule. On the relationship between clauses 2.10 and 2.11, the Panel read the plain text to make 2.11 a fallback provision, not one extinguished by the mere initiation of the assignment process. The Indicative Term Sheet was expressly non-binding and subject to conditions precedent, so no final assignment agreement existed. On Santos' inability, the Panel found the 30-day deadline expired before the Agencia Tributaria embargo became relevant, and Almería's witnesses who could have testified to Santos' alleged bad faith were not produced at the hearing. The Panel also noted that clause 2.11's silence on the cause of inability meant Almería bore the risk of failure for any reason other than Santos' own negligence. On the fraud/error defences, the Panel applied Swiss Federal Tribunal authority (ATF 116/1990 II p. 431) holding that silence is only deceptive where there is a duty to inform, and that Almería, an experienced party in receivables transactions, bore its own duty of pre-contractual inquiry. The Panel was further comforted by Almería's own internal email acknowledging it owed the delta between the embargoed amount and the three instalments.

Why Santos v. Almería (Kaiky) matters in CAS jurisprudence

This award clarifies how receivables-assignment fallback clauses in football transfer agreements operate: a Notification of Assignment & Acknowledgement does not perfect the assignment or extinguish the fallback clause absent a final binding agreement with the financial institution. The Panel also confirms that where a fallback clause drafted by the paying club is silent on the cause of the seller's inability to assign, the paying club bears the risk of failure for reasons beyond the seller's negligence, reinforcing the principle that ambiguous clauses are construed against their drafter.

Cases cited in this award

CAS 2015/A/3981

Frequently asked questions about Santos v. Almería (Kaiky)

Did Santos FC successfully invoke clause 2.11 of the Kaiky transfer agreement to accelerate payment from Almería?

Yes. CAS held that Santos was unable to secure the assignment of receivables within the 30-day contractual deadline and that this inability was not due to Santos' own negligence. Clause 2.11 was therefore triggered, making the first three instalments (EUR 4,500,000 in total) immediately due, with Almería ordered to pay EUR 851,628.52 directly to Santos and EUR 1,874,099.48 to the Spanish tax authority on Santos' behalf.

Did Almería's signing of the Notification of Assignment void clause 2.11 of the Santos–Almería transfer agreement?

No. The Panel found that the Notification of Assignment & Acknowledgement could not exist in isolation without a final and binding agreement between Santos and the financial institution (BHP/SUPERFUTE). Because the Indicative Term Sheet was expressly non-binding and subject to conditions precedent, no such final agreement existed, and clause 2.11 remained operative as a fallback provision.

Was Santos FC found to have committed fraud by concealing its tax debt to the Agencia Tributaria when negotiating the Kaiky transfer?

No. CAS held that Almería failed to prove the three cumulative conditions for fraud (dol par omission) under Article 28 SCO: intentional deception, error, and causal link. The Panel noted that Swiss law imposes no general duty to disclose all surrounding circumstances, that Almería bore its own pre-contractual duty of inquiry, and that it was not proven the tax debt actually made the assignment impossible.

What interest rate applies to Almería's late payment to Santos FC under the Kaiky transfer agreement?

Under Article 2.12 of the Transfer Agreement and Article 104 SCO, default interest accrues at 5% per annum. The Panel ordered 5% p.a. from 19 October 2022 on EUR 851,128.52 and from 17 February 2023 on EUR 500.00, both running until the date of effective payment.

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

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