Lionel Messi - v7

It would be the most jaw-dropping legal case in the history of the sport, and The Athletic spoke to two Spanish legal experts to get the lowdown on the reasoning behind each parties? respective positions. Agustin Amoros Martinez is one of Spain?s most respected sports lawyers and an expert in Spanish labour law. He has worked on cases at the Court of Arbitration for Sport and is an associate for the Ruiz-Huerta & Crespo legal practice, run by Juan De Dios Crespo, who has previously advised the Messi family on specific issues. Francisco Dominguez runs the sports law department at DTR Abogadosin Barcelona. The two lawyers have given their opinions on hypothetical scenarios.

To take the case from the beginning, what exactly is a burofax?

A burofax is not, in fact, a throwback to a bygone era where companies ? or football clubs ? corresponded by fax machines. Amoros explains: ?This is a certified letter that normally includes proof of receipt by the recipient. It certifies the content and means the sender has evidence of the exact letter sent to the addressee. It is similar to recorded delivery in England.? In short, therefore, the burofax means Messi?s legal representatives can say without doubt that the club have received the content and are able to act upon its wishes.

What exactly is Messi trying to achieve?

On the surface, Messi is making an attempt to leave Barcelona by formally seeking to invoke a clause that allows him to be released from his contract a year before its expiry. The date written into the contract, according to widespread reports, is June 10. However, football locked down along with the rest of society in spring during the global pandemic. As such, the football calendar changed. Therefore, Messi would argue that he is entitled to invoke the clause further down the line at the end of the playing season in August.

Givenchy said:

Messi had a contract allowing him to leave for free, obviously this was done with the intention he'd head back to Argentina when he feels hes done here. Messi and his lawyers will use this contract to join an oil club for FREE.

Iniesta and Xavi had the same contract, Iniesta went to China and Xavi Qatar

Barto is a cunt we can all agree but hes a cop out right now and hes gone after the elections. only Barca suffer from this

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You still don't understand that Messi is using the contract to join City for free because Bartomeu refused to negotiate. Messi said from the beginning that he wanted Barca to get a decent fee for his sale.

Amoros says: ?Due to COVID-19, the dates of the season changed and therefore I suppose he is thinking, ?I can use the clause later in the year?. This would be the intention of Messi?s lawyers, for sure. They are trying to link the original date with the development of the calendar of the season. They would argue that, by inserting the original exact date of June 10, the aim of all parties was to see how the season worked out and then to take the corresponding decision.?

How strong is Messi?s position under Spanish law?

The two lawyers contacted by The Athletic set out the situation. Amoros explains: ?The position of Barcelona for sure will be that the precise date is clear and it is not necessarily linked with the finish of a season. They might also say, beyond this, that Messi could have taken this decision on June 10 prior to the conclusion of the season, as he had sufficient information (about the team and club) to take the decision. The precise date is the easiest defence because it is based on the literal words of the contract. According to Spanish law, the first criteria to be applied is the legal interpretation when the words in the clause are clear and its meaning has no doubts. This is the first point and the one for sure that Barcelona?s lawyers will use.?

Dominguez supports this view: ?In Spain, there is a legal article that declares when there is a discussion between the interpretation of a clause, the first option is to apply the literality of the words. The words of the contract are very, very clear. The player must notify the club before June 10.?

Yet Messi and his representatives argue that the pandemic should give leeway, as the season had not finished? Does this have any basis?

This is where a battle begins between literal wording of a contract and the spirit of the law.

Amoros believes Messi?s legal team will develop this argument in the event of a lawsuit. He says: ?In these discussions over interpretation, Messi?s lawyers will attempt to use the second part of the same article. This is article 1,281 of the Spanish Civil Code. This argues that, yes, the first point stands with regards to the literal wording but it makes the case that sometimes, the intention behind the wording can be even more important than the literal words in the clause.?

If Bartomeu wasn't in charge and we had a solid sporting department, I wouldn't be adverse to selling a 33 year old want-away Messi for 150 million whatsoever. With the right investments plus some of the younger players coming through, Barca could build a solid side. We have desperately lacked a system for at least 3 years and we've only gotten further and further behind.

As such, Messi would argue that the shared intention of both he and Barcelona, when agreeing to place the clause in the contract in the first place, was to allow him to complete the playing season before deciding whether he wishes to continue. ?This could be the chance for Messi?s position,? Amoros adds.

Dominguez is much more dismissive of Messi?s argument. He says: ?Messi as a player has really got a problem. He is arguing that, due to COVID, the clause of the contract should not apply to the date of June 10 and therefore should be extended. So, the club received the burofax on August 25. The clause in the contract is June 10 and the end of the season contractually is June 30, when contracts usually end, marking the end of the season. This, therefore, means a 20-day period before the ?end? of the season. Therefore, we know he has notified the club too late, according to the original date, by withdrawing from his contract in August. Even then, if we then accept circumstances have changed because of the pandemic, we can then say the season ends on August 23, the day of the Champions League final. As such, I would argue he needed to send the burofax 20 days before the season ended and he did not do this on August 3. So it means the player is wrong, to me, in any case. I cannot understand the position of Messi under the law. It is incredible. I am talking about my opinion. Nobody I have spoken to in Europe ? and I have spoken to a lot of legal colleagues ? understands Messi?s position.?

If Messi?s position is legally weak, how do they resolve this situation?

One theory pushed by several sources close to the situation this week is that Messi did not intend to truly walk away from Barcelona for free but instead wanted to either pile pressure onto unpopular club president Josep Maria Bartomeu to resign. Or, they say, he used the nuclear threat to force Barcelona to negotiate sensibly with a club such as Manchester City over a transfer.

Dominguez says: ?Messi is an institution, so the best option is to close an agreement (one way or another). The best option for Barcelona is that he reconsiders and stays in Barcelona. Many players have tried to leave and eventually stayed. In case he decides to go out for free, he has really a problem. I don?t think Messi would take on the risk to breach the contract. It is incredible. It is too hard.?

And yet, what if there is no agreement for a transfer fee? What would happen if Messi invoked his clause, walked away from Barcelona for nothing and signed for a foreign club such as Manchester City on a free transfer?

Bluntly, the most extraordinary legal battle could ensue. It would be a matter for the Spanish civil courts and, potentially, FIFA, football?s governing body. Barcelona would lose an asset for nothing who they argue could only be released for a ?700 million release clause. As such, the legal world is already exploring how a ?700 million lawsuit would play out.

Amoros says: ?This is not an issue for Catalan civil law. They can only issue civil laws over specific issues, such as inheritance for example, but not general interpretation of contracts. This is ruled by the Spanish state?s civil code. Normally, in Spanish playing contracts, a clause says that any issue over interpretation will be settled by Spanish courts. There is always another clause in playing contracts that says any unforeseen events regarding the contract will be ruled by Royal Decree. This is the famous Royal Decree for professional athletes in Spain. The relevant article is 35 years old, from June 26, 1985 and Article 16 of the Royal Decree 1006. Any legal actions over professional athletes will be filed before the social courts of Spain. The most probable scenario, therefore, is that Barcelona?s suit would be filed in Spain and in Barcelona, purely because it is the site of where the player?s services are rendered to the club.?

So a battle would take place in a Spanish court. Would this be against Messi or also against the foreign club who sign him?

Amoros explains: ?To me, the most proper way to file the suit would be to sue jointly Messi and the foreign club who hires him. There is a difference, though. In Spanish law, the responsibility would become subsidiary for the club who sign (Messi). The first (party) responsible to pay is the player. It is only if he does not fulfil his financial obligation that the club then becomes the one who has to pay.?

A foreign club, such as Manchester City, can still receive action from a Spanish court. ?Yes, this is possible,? Amoros insist. ?You have to rely on international conventions and it depends on the country. England is no longer part of the European Union but there are international treaties that allow you to sue other parties.?

As such, if Messi is unable to pay the full figure, then the club he signs for could be secondarily liable.

Dominguez challenges this view. ?In my opinion,? he argues, ?The club who signs Messi? there is no responsibility for the club under Spanish law. There is not any article that clearly declares it. Nowadays, because of the right of a worker to work in any place, nobody can forbid this player to sign for another club. But the player must pay the penalty the judge decrees.?

Latschenkiefer said:

He has spent more than half of his life at the club, has so much achieved with us and has earned a fortune. And as soon as things get tough he wants to run away and forces his way out to a competitor in the CL? What a terrible mindset.

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Or he gave his whole soul to the club and when he is finally done with it the club turns on him and holds him against his will.

Messi at this point is like the end of the horse boxer in animal farm.

So Messi really could be liable himself for ?700 million?

Dominguez is clear in his assessment. He says: ?If we are talking strictly about law, there is no doubt. He would have broken the contract and must pay a penalty. I have been in many trials about these topics and the judge can order him to pay the penalty of ?700 million. The reason they included ?700 million was because of his salary. These clauses are proportional to salaries, so the more you earn, the higher the clause.?

Dominguez points to a precedent set in Spanish courts regarding a basketball player Albert Miralles Berge, who, the lawyer says, ?eventually paid the penalty established in the contract? with Club Joventut de Badalona in a legal case that concluded in 2004. The court insisted Miralles should pay ?1.2 million as set out in the contract.

If Messi is found to have breached the contract by a Spanish court, does he have further recourse?

There is a next step that could be taken. Should Messi?s legal team lose the argument over the COVID-19 calendar, they could then argue that the ?700 million clause is itself ?abusive?. By this, they mean that the ?700 million clause was never intended to value the asset but instead block him from leaving the club at all while contracted.

Almoros says: ?There are judgments by Spanish courts stating that these amounts were not applied to contracts for damages but to avoid the player breaching the contract. The court could consider that this clause was therefore settled to avoid the player changing clubs and this could be considered abusive. The judge could therefore annul that ?700 million amount but with an obligation to set another amount following the criteria fixed in the Royal Decree. This article speaks about several concepts quite indeterminate over sporting value and the reasons for the breach of contract. In the end it falls into the hands of the judge to decipher an adequate amount. Then it becomes, ?What amount is too excessive for Messi?? You take into account amounts agreed for other players, such as Neymar or Cristiano Ronaldo maybe.?

Messigician, do you even understand anything written in that wall of text you're posting? You can barely string together a few sentences without looking like a complete muppet.

Dominguez does not believe the clause is itself abusive, as Messi has received a sky-high salary from Barcelona that gives the club the right to protect the asset. Barcelona?s position would also be enhanced by the fact Messi voluntarily agreed to sign the contract containing this clause.

Dominguez does, however, foresee a reduction in penalty. He says: ?The penalty is so high, so it is possible the judge will decide, because Messi is in the last year of his contract, it can be reduced. But really, it is not abusive because look at his salary. So maybe the judge could say it is ?500 million but that is still really, really high as a penalty! In my opinion, it is really a high risk for Messi. The best option, therefore, is to try and close an agreement (between the clubs or to stay).?

Is there no chance, in Dominguez?s eyes, that a court would completely exonerate him? He insists: ?We say in Spain: cero. Zero. It is absolutely impossible.?

Would FIFA also be an avenue?

Yes. Barcelona could, in theory, complain to FIFA if Messi walks away unilaterally and joins a club for free. It would then be up to FIFA to adjudicate over the interpretation of his contractual clause and the June 10 date.

Amoros points to Article 17 of FIFA?s transfer regulations. This is entitled ?Consequences of terminating a contract without just cause?. In the worst-case scenario for Messi and City, if they are his next club, the player could be banned for six months, the club and player could be jointly liable for Barcelona?s ?700 million compensation and City could receive a two-window transfer ban.

The regulations state clearly that the ?party in breach shall pay compensation?. Unlike the Spanish courts, there is clarity over liability for the club that hypothetically signs Messi. The rules say: ?If a professional is required to pay compensation, the professional and his new club shall be jointly and severally liable for its payment.?

DonAK said:

Messigician, do you even understand anything written in that wall of text you're posting? You can barely string together a few sentences without looking like a complete muppet.

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he's just copying pasting the whole article, which is very annoying

With regards to further punishments, the rules state: ?In addition to the obligation to pay compensation, sporting sanctions shall also be imposed on any player found to be in breach of contract during the protected period. This sanction shall be a four-month restriction on playing in official matches. In the case of aggravating circumstances, the restriction shall last six months. In addition to the obligation to pay compensation, sporting sanctions shall be imposed on any club found to be in breach of contract or found to be inducing a breach of contract during the protected period. It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. The club shall be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration periods.?

It may be possible that Messi and City avoid sporting sanctions by arguing that his move does not fall within the governing body?s defined ?protected period?. As far as is publicly known, Messi signed his most recent contract in November 2017. A player would be liable to sporting sanctions if unilaterally breaking a contract within two entire seasons of signing a deal but Messi would argue he is now out of the protected period in August 2020. This, however, would not evade the financial lawsuit either in FIFA?s eyes or the Spanish courts.

Someone ban Messigician.

With the potential threat of a playing ban for Messi and a transfer ban for City, are they really like to risk it all?

Speaking on Thursday, lawyer Amoros felt it would not be in Barcelona?s interests to split the lawsuit between the Spanish courts and FIFA. This, therefore, may avoid severe footballing repercussions. Yet there is no guarantee. There is then the question of speed, as Amoros estimates it would take at least a year for a judgment and sentence to be reached in the Spanish courts. It is understood that FIFA would advise a disgruntled club in this situation that they would accept the judgment of the host nation?s court, rather than embark on a dual investigation. It may, however, be that there is a specific jurisdiction outlined in Messi?s contract that could decide where the case is heard.

With the risk of breaching the contract so high, it perhaps explains why reports increasingly point to transfer negotiations between Manchester City and Barcelona, rather than the player walking away for free.

Dominguez, who has advised on cases at the Court of Arbitration for Sport, cautioned on a further issue: ?I also don?t understand how European clubs can assume the salary of Messi under Financial Fair Play. It is a risk to Manchester City because they have already been investigated twice.?

That's it dawgs happy reading