A Pre-Contract, a €1M Penalty, and a Career-Defining Ban
The 2017 Court of Arbitration for Sport (CAS) award in Hakan Çalhanoğlu v. Trabzonspor FC is a landmark decision for sports lawyers, clubs, and player agents. It provides a critical analysis of a common but high-risk scenario: a talented minor player signs a pre-contract, receives a significant payment, and then breaches that agreement to sign with another club.
This case serves as a crucial warning about the enforceability of contracts signed by minors, the consequences of breaching contractual stability, and the severe sporting sanctions that can follow—even years later and at a different club.
The Legal Framework: FIFA Regulations and Swiss Law
The Çalhanoğlu award confirms the legal hierarchy in international football disputes. Under Article R58 of the CAS Code, the Panel first applies the “applicable regulations” (FIFA’s) and then, subsidiarily, Swiss law. The player’s attempt to apply German law (his nationality) was rejected.
The core of the dispute rests on the FIFA Regulations on the Status and Transfer of Players (RSTP) and the Swiss Code of Obligations (CO).
Key FIFA RSTP Articles
- Article 2 (Player Status): This article defines a “professional” as any player with a written contract who is paid more than the expenses they effectively incur. The Panel found that Çalhanoğlu, whose accommodation, board, and travel were covered in addition to a monthly salary, was clearly a professional, not an amateur.
- Article 17 (Contractual Stability): This is the “hammer” of the RSTP. It mandates that a player who breaches a contract without just cause must pay compensation. Crucially, Article 17.3 states that if the breach occurs during the “protected period,” sporting sanctions (i.e., a playing ban) shall also be imposed.
- Article 18.2 (Minor Contracts): Professional contracts for minors (players under 18) cannot exceed a term of three years. Any clause for a longer period “shall not be recognised.”
- Article 18.4 (Medicals): Forbids making a contract’s validity conditional on a successful medical examination.
- Article 18.5 (Multiple Contracts): A professional player is forbidden from signing a contract with a new club if they are already under contract with another club.
Key Swiss Law Principles
- Tacit Approval (Art. 19a Swiss Civil Code): A contract signed by a minor can be validated by the “tacit approval” of their legal representative (e.g., a parent).
- Excessive Penalties (Art. 163 CO): Swiss law allows parties to set a penalty clause. However, it gives a court the power to reduce a penalty it deems “excessive,” without voiding the entire contract.
Case Analysis: The Çalhanoğlu v. Trabzonspor Dispute
The facts of this case provided a perfect test for the legal framework.
The Facts
- In 2011, Hakan Çalhanoğlu (then 17) was a professional player at Karlsruher SC.
- He and his father signed a “Preliminary Agreement” with Trabzonspor to join them for the 2012/13 season. He also signed the full “Trabzonspor Contract” (a 5-year deal), but this one was not signed by his parents.
- Trabzonspor paid the player a €100,000 down payment.
- Both contracts contained a €1,000,000 penalty clause if the player breached the agreement.
- In 2012, Çalhanoğlu ignored the Trabzonspor agreements and instead signed a new contract with Karlsruher SC, subsequently moving to Hamburger SV and then Bayer Leverkusen.
- Trabzonspor filed a claim with FIFA for breach of contract, demanding the €100,000 back plus the €1,000,000 penalty.
The Player’s Defense: Why the Contracts Were “Invalid”
Çalhanoğlu’s legal team argued that the contracts were null and void, meaning he couldn’t have breached them. CAS methodically rejected every single argument:
- Argument 1: “I was a minor, and my parents didn’t sign the main contract.”
- CAS Ruling: Invalid. The parents did sign the Preliminary Agreement, which had identical financial terms. This constituted “tacit approval” under Swiss law (Art. 19a), making the main contract valid.
- Argument 2: “The 5-year contract term violated the 3-year max for minors (Art 18.2 RSTP).”
- CAS Ruling: Invalid. This violation does not void the entire contract. It simply means the term is automatically reduced to the 3-year maximum. The contract remains valid for 3 years.
- Argument 3: “The contract was conditional on a medical (violating Art 18.4) and had an excessive penalty clause.”
- CAS Ruling: Invalid. These clauses do not kill the contract. The medical clause is simply disregarded, and the penalty clause can be reduced by the Panel (Art. 163 CO) if found to be excessive.
The Final Award: A Four-Month Ban and a €100,000 Penalty
Since the contracts were deemed valid, Çalhanoğlu was found to be in breach without just cause.
- On the Sporting Sanction: The Panel upheld the four-month playing ban as mandated by Article 17.3 RSTP. The player’s argument that this was unfair to his new club, Bayer Leverkusen, was rejected. The Panel noted that Leverkusen was aware of the FIFA proceedings (and thus the risk) when they signed him.
- On the Compensation: The Panel agreed that the €1,000,000 penalty was “excessive”. Balancing all factors—including the player’s fault and the club’s (Trabzonspor’s) own lack of due diligence in not contacting Karlsruher—the Panel reduced the compensation. It ordered Çalhanoğlu to pay €100,000 to Trabzonspor, effectively forcing him to return the down payment he had received for a contract he never honored.
Conclusion & Legal Tips for Agents and Clubs
The Çalhanoğlu award is a clear and potent warning to all parties in football.
- For Agents & Players: A contract is a contract. CAS will not void an agreement on technicalities. Do not assume a pre-contract signed as a minor can be easily dismissed. A “flawed” clause (e.g., term length, penalty) will likely be modified by the Panel, not used to invalidate the entire deal.
- For Clubs (Acquiring): When signing a player, especially one with a complex contractual history, due diligence is paramount. Bayer Leverkusen was ultimately punished by a 4-month ban on their player for a dispute they had no part in, simply because they were his current club.
- For Clubs (Signing Pre-Contracts): Ensure your agreements are clean. While Trabzonspor “won,” their own conduct (using two contracts, not contacting the player’s original club) was criticized by the Panel and directly led to the €1,000,000 penalty being reduced to just €100,000.
