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CAS 2023 A 10069 (CAS)

Why it matters

This case reaffirms that a pre-contract can be binding if it contains the essential terms of employment (essentialia negotii), even if a formal contract was never signed. It also clarifies that sporting sanctions under Article 17(4) FIFA RSTP are discretionary, not automatic, but may be imposed based on the club's bad faith. The decision underscores the importance of contractual stability in football and the consequences of inducing a player to terminate an existing contract.

Summary

The case concerns an appeal by Club Jorge Wilstermann (Bolivia) against a FIFA DRC decision ordering it to pay compensation to Brazilian player Gustavo Barbosa do Nascimento and imposing a two-window transfer ban. The player had signed a pre-contract with the club via WhatsApp negotiations with the club's president and sports director. Relying on the pre-contract, the player terminated his existing contract with a Thai club. However, the Bolivian club failed to provide flight tickets or finalize the employment, leading the player to claim breach. FIFA DRC found the pre-contract binding and awarded compensation. The club appealed to CAS, arguing the pre-contract lacked essential terms and that the negotiators lacked authority. The CAS Sole Arbitrator dismissed the appeal, holding that the pre-contract contained the essentialia negotii (parties, salary, duration) and was binding. The club's internal change of management did not excuse its obligations. The arbitrator also upheld the sporting sanctions, finding the club acted in bad faith by inducing the player to terminate his prior contract and then failing to honor the agreement. The award confirms the FIFA DRC decision and lifts the stay on the transfer ban.

The detail

Parties: Club Jorge Wilstermann c. Gustavo Barbosa do Nascimento & FIFA

Case number: CAS 2023 A 10069

Outcome: The appeal was dismissed. The FIFA DRC decision was confirmed: Club Jorge Wilstermann must pay USD 40,190 compensation to the player and is banned from registering new players for two consecutive registration periods. The stay of the ban was lifted.

Quantum: USD 40,190

Applicable law: FIFA Regulations on the Status and Transfer of Players (RSTP), particularly Article 17; Swiss Civil Code; CAS Code of Sports-related Arbitration

Issues in play: The case involved the validity of a pre-contract (whether it contained the essentialia negotii to be a binding employment agreement) and the discretionary imposition of sporting sanctions under Article 17(4) FIFA RSTP for breach of contract during the protected period.

Read the full decision at Court of Arbitration for Sport (football, via FIFA) ↗

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