Pathological Jurisdiction Clauses In Football Contracts (Part 1 – The Need For Exclusivity)

When a football club signs a player or coach to an employment contract with an international dimension, the agreement will almost always contain a clause specifying where disputes should be resolved. Under FIFA's regulatory framework (namely Article 22(1)(b) of the FIFA Regulations on the Status and Transfer of Players - RSTP) these clauses must meet a precise standard: they must designate a single, exclusive forum.

In practice, however, many contracts (particularly those built on legacy templates or domestic standard forms) fall short. They refer to multiple bodies simultaneously: a national dispute-resolution chamber and a civil court, or a labour tribunal and a sports arbitration panel. Some use permissive language ("may refer") rather than mandatory. Others split dispute-resolution provisions across a main contract and an annexure without establishing which prevails. These are often referred to as “pathological jurisdiction clauses”^[1] i.e. clauses that, by reason of their internal contradictions, ambiguity or failure to identify a single competent forum, cannot satisfy the exclusivity requirement now expressly codified in Article 22(1)(b). The consequences are significant: where a clause is pathological, FIFA retains default jurisdiction over the employment-related dispute, regardless of what the parties intended.

This article examines the evolution of the current test for “exclusivity”, and in doing to undertakes a detailed analysis of two important recent CAS awards:

• Al Salmiya Sporting Club v Božidar Cacic (Al Salmyia);^[2] and
• Mezőkövesd Zsóry FC v Matija Katanec & FIFA (Katanec).^[3]

Al Salmyia represents the cleanest authority on how contradictory multi-forum clauses inevitably fail the exclusivity test. Katanec demonstrates the very limited and fact-sensitive circumstances in which a hybrid or multi-forum clause may be rescued (i.e. valid) through interpretation. The article concludes by applying these principles to typical contract structures, such as those involving references to a national DRC, civil courts, labour courts or statutory tribunals, illustrating why these clauses are almost always pathological (i.e. unenforceable) under modern FIFA and CAS standards.

For further background reading, please also see this LawInSport article:  Incomplete, Unclear & Contradictory...How CAS & the Swiss Federal Tribunal Approach Pathological Arbitration Clauses.^[4]

Contents (Part 1)

• Background
• FIFA’s Framework: Article 22 RSTP and the need for Jurisdictional Exclusivity
• CAS’s Definition of Pathological Arbitration Clauses
• Al Salmiya: How Ambiguity and Multi-Forum Drafting Affect Exclusivity