Buy-out Clauses In International Transfers To And From Polish Football Teams – The Matías Nahuel Leiva Case

The end of the transfer period, informally referred to as the transfer window, is always exciting for football market participants, media and fans. The clubs and the agents work intensively to finish the transfer process...
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Transfer windows in Poland and across the globe

The end of the transfer period, informally referred to as the transfer window, is always exciting for football market participants, media and fans. The clubs and the agents work intensively to finish the transfer process before the midnight of the last day of the transfer window.

The important fact is that the transfer periods vary across the world. For instance, in Poland the transfer window closed on September 9, 2024, while the same took place in Israel on September 18, 2024.

The Maccabi Haifa and Matías Nahuel Leiva case - background

The owners of the Maccabi Haifa Football Club took the opportunity to obtain one of the most crucial WKS Śląsk Wrocław players - Matías Nahuel Leiva. On September 18, 2024, the two clubs finally agreed on a classic cash transfer of approx. the equivalent of the player's EUR 2.5 million buy-out clause.

The subject of this article is an issue that arose on the eve of the transfer actually taking place, when the media reported Maccabi's willingness to exercise the buy-out clause.

The current sport situation of Śląsk Wrocław is worrying – after the loss of the best striker Erik Expósito due to the expiry of his contract, the club has got into trouble and is facing relegation from "Ekstraklasa" (the Polish equivalent to e.g. the English Premier League). The management board of the club could not afford to lose another key player, like Matías Nahuel. The Spaniard signed a new contract starting in the beginning of 2024, which was about to expire at the end of the 2026-2027 season.

Buy-out clauses

The Matías Nahuel's contract with Śląsk Wrocław contained a buy-out clause amounting to circa EUR 2.5 million (according to social media information confirmed by the club).

The buy-out clause mechanism is recognised by FIFA as an expression of freedom of contract. Article 13 of the Regulations on the Status and Transfer of Players (RSTP) being the key legislation governing the issue of transfers says that "a contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement." The institution is further described in the regularly issued official commentary to the RSTP – in its former version the issue was addressed as follows: "The parties may, however, stipulate in the contract the amount that the player shall pay to the club as compensation in order to unilaterally terminate the contract (a so-called buy-out clause)".

The advantage of this clause is that the parties mutually agree on the compensation at the very beginning of cooperation and stipulate it in the contract. By paying this amount to the club, the player is entitled to unilaterally terminate the employment contract. With this buy-out clause, the parties agree to give the player the opportunity to cancel the contract at any moment and without a valid reason also during the period of protection, which is when no sporting sanctions may be imposed on the player as a result of the premature termination."

As can be seen from the above, FIFA leaves the buy-out clauses to be individually regulated by the national legislation.

In Poland the mechanism of the buy-out clause was introduced on January 1, 2024, by a new Resolution of the Board of the Polish Football Association No. VI/90 of 16 June 2023 - Minimum Requirements for Standard Contracts of Players in the Professional Football Sector. Pursuant to these provisions, the buy-out clause was defined as the right reserved in the contract allowing a player to terminate the contract in exchange for payment of consideration in accordance with the provisions of this Resolution.

The buy-out clause should specify the enforcement term and the buy-out amount or the way of determining this amount.

Pursuant to the buy-out clause, a contract may only be terminated in the period between the day following the last match before the beginning of the registration period in the class in which the player's current club plays and the day ending the registration period.

The buy-out clause may be exercised by payment of the entire amount of the buy-out to be made by the player or by the club intending to acquire the player's registration rights, unless otherwise agreed by the parties.

Exercise of the buy-out clause results in an automatic termination of the contract as soon as the bank account of the former club is credited. This is when the club needs to immediately issue a declaration of termination of the contract with the player and undertake all factual and legal actions aimed at changing the player's club affiliation to the club indicated by the player.

Let us come back to Maccabi Haifa and Matías Nahuel Leiva case

Due to the social media information on the Maccabi owners sending new offers to buy the Matías Nahuel, the Śląsk's management board informed that the player was not for sale and that they would reject any offer below EUR 2.5 million. Some time later, the media reported that Maccabi was losing patience and decided to pay the buy-out clause for the player.

The CEO of Śląsk Wrocław, Patryk Załęczny wrote a post on social network "X" that Maccabi could not exercise the buy-out clause of Matías Nahuel due to provisions of Article 5 point 2 of the Minimum Requirements for Standard Contracts of Players in the Professional Football Sector, whereby the buy-out clause can only be exercised during the Polish transfer window, which was already closed.

The CEO's position was risky. Even though the club intending to acquire a player's registration rights is authorized to pay the buy-out amount under the regulations, the regulations use a specific definition of a 'club', whereby the club is "an entity, which is a member of the PZPN (Polish Football Association), that has a football section participating in a sports competition organised by the PZPN." Therefore, the buy-out clause procedure applies only to the internal Polish market under the aegis of the PZPN, rather than a foreign club. This reasoning is in line with the market standard, which says that the FIFA RSTP regulations apply to classic international transfers rather than internal resolutions of the Polish Football Association, such as Resolution No. VIII/124 of July 14, 2015, on the Status of Players and Rules governing Changes of Club Affiliation.

Therefore, the provisions of Resolution No. VI/90 do not cover the payment of the buy-out clause by a foreign club and are not affected by the closing date of the transfer window in Poland.

What seems to be the key here is the way the player's clause is structured, i.e., how the deadline for exercising it has been set. If, according to the clause, the deadline for exercising it ended on the last day of the transfer window in Poland, there should be no problem. However, if that had been the case here, the CEO would have had referred to this circumstance in his post on portal X, which would close the topic.

However, should the deadline not expire, the following risk may arise: Maccabi Haifa and Matias Nahuel could say that, since Maccabi is the party that pays the buy-out clause, this does not fall within the parameters set out in the Minimum Requirements. Consequently, the possibility of exercising the clause is not constrained by the deadline for the transfer window in Poland. Therefore, Nahuel and his legal counsel could issue a unilateral statement that they consider the contract terminated, and the player would be allowed to sign a contract with Maccabi.

Naturally, Śląsk would contest this and would pursue the matter through the FIFA Football Tribunal and subsequently in the CAS Court in Lausanne. Without prejudging the outcome of the case, even in the event of securing a substantial compensation, it would be unfeasible to reverse the decision and require Matias Nahuel to resume playing for Śląsk.

If this scenario had materialised, there would have been a significant risk of relegation from the league, which would have had far more losses than gains from potential compensation. It is likely that the above risks prompted Śląsk to agree to a cash transfer without the use of a buy-out clause.

Given that the parties agreed and made a cash transfer of Matias Nahuel Leiva on September 18, 2024, the above risk did not materialise in the described case. However, given the universality of the issue, the risk of conflict at a level described above is likely to appear in the future transfers on the Polish football market.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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