CAS rules on retrospective application of solidarity regulations (Cagliari v Club A)

With the very recent award CAS 2021/A/8238, issued on 8 September 2022 (CAS Decision), the Court of Arbitration for Sport (CAS) appears to have finally resolved a jurisprudential contrast on the matter of FIFA solidarity mechanisms.

The case involves a loan agreement which turned into a permanent transfer upon occurrence of certain conditions. These conditions were fulfilled before the changes to the solidarity mechanism came about in 2020 where solidarity contribution was also made applicable to domestic transfers with an ‘international’ dimenson i.e. where the player had foreign training clubs; but the effect of the agreement came into after the amended solidarity contribution regulations came into force.

Therefore, the CAS Decision is relevant not only with specific reference to the issue of FIFA solidarity mechanism, but also in regard to non-retroactivity and legal certainty principles.

This article discusses:

1. The new regulatory framework for solidarity mechanism under FIFA Circular No. 1709

2. The decisions at the FIFA level

   1. The centrality of the moment when permanent registration occurred, to be considered as “disputed fact” pursuant to art. 26 FIFA 2020 RSTP
   2. Factual backgrounds and structure of the transfer agreement between SSC Napoli and Cagliari Calcio
   3. The centrality of the date of signing of transfer agreement and the fulfillment of the conditions precedent prior to the entry into force of the FIFA 2020 RSTP

3. Which edition of the FIFA RSTP is applicable? CAS intervention and contrast resolution

Please note that the decision has not been published by CAS as on the date of publishing this article.