A creditor who is not a party to the contract – can an entity that is not a party to the contract file a lawsuit with CAS or FIFA?

The Unique Nature of MLS

Major League Soccer, the American league, operates in a manner that is unique and unfamiliar to European fans. The league functions as a so-called “single entity,” holding the rights and serving as a party to contracts with players. The clubs in this league can be compared more to franchisees under a single brand. This means that, for example, international transfer agreements are concluded by MLS with foreign clubs. At the same time, however, it is the clubs that are the beneficiaries of these agreements.

Background of the Case

Against the backdrop of one of these transfer agreements, a dispute arose as to whether an MLS club (the beneficiary of the transfer) could file a claim with FIFA or CAS for payment of transfer fees without involving the league itself. In this specific case, the issue concerned the transfer of Argentine player Thiago Almada to the Brazilian club Sociedade Anônima do Futebol Botafogo. The club of his previous registration was Atlanta United.

CAS Legal Assessment

CAS held that Atlanta is indeed entitled to bring an action for payment of the amounts due. The absence of a formal signature by Atlanta’s representatives on the contract does not deprive the club of this right. It is sufficient for the claimant to invoke the right to which it is entitled. For this reason, it must demonstrate a legitimate and protectable interest—in other words, to put it simply, demonstrate that it is entitled to the payment.

The CAS’s position was further strengthened by the fact that the agreement itself clearly stipulated the club’s right to enforce due payments without involving the league—the formal signatory. Also significant was the fact of registration in TMS in Atlanta and the technical details of the transfer—from Atlanta as the transferring club to Botafogo as the acquiring club.

According to CAS, asserting a claim granted in the contract does not constitute a modification of that contract (which the club was not authorized to do). It is the exercise of a right to which the club is entitled, and for this, the club does not need to be a formal party to such a contract.

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Significance of the ruling for sports dispute practice

This case confirms that a creditor who is not even a formal party to the contract may bring a claim before international sports tribunals. This position may also reinforce the argument that clubs could bring a claim for payment before FIFA or CAS that does not have its formal basis in a contract, but rather, for example, in a tort—provided, of course, that the jurisdiction of FIFA and CAS would stem from FIFA regulations.

However, such a conclusion will not always be applicable to Polish sports authorities. This is because Poland has a rule requiring an arbitration clause, without which a case cannot be brought before a court. On the other hand, it is not impossible for Polish courts to reach a similar legal assessment, though this is a topic for a separate article.

Summary

A creditor in sports does not need to be a formal party to a contract to utilize international sports tribunals and assert their rights there. It is sufficient that the contract grants such a creditor specific rights that are subject to legal protection before these courts—e.g., the right to payment of specific amounts. In such a situation, one may file a claim with FIFA even in the absence of a formal signature on the contract.

A creditor who is not a party to the contract – can an entity that is not a party to the contract file a lawsuit with CAS or FIFA?

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