Earlier this month, Sports Shorts considered the Neymar transfer saga with an in-depth look at the law surrounding buy-out clauses and a more specific post on penalty clauses in contracts entered into by Spanish clubs and minors.

Neymar, backed by Paris Saint-Germain, was recently able to buy himself out of his contract with FC Barcelona in order to join the French club. Since the publication of those blog-posts however, the situation between the Brazilian and his former club has reached fever pitch, as Barcelona announced that they have commenced a claim against Neymar for breach of contract, claiming entitlement to €8.5 million in relation to a renewal bonus, the undisclosed amount paid to him under an alleged ‘loyalty bonus’ and 10% interest.

Barcelona released the following statement regarding the claim:

“FC Barcelona has sent the Spanish Football Federation the labour lawsuit against Neymar Jr they submitted on 11 August at the Labour Tribunal in Barcelona so that they can pass it on to the appropriate authorities in the French Football Federation and FIFA.

In the lawsuit, the Club demands the player return the already paid sum for his contract renewal as he has not completed his contract; 8.5 million euros in damages; and an additional 10% because of delayed payment. The Club also requests Paris Saint-Germain take on responsibility for the payment of these fees if the player cannot do so himself.

FC Barcelona has started these proceedings to protect its interests following Neymar’s decision to buy out his contract just months after he signed an extension until 2021. This legal defence will be carried out following the established procedures with the competent authorities without entering into any verbal arguments with the player.”

The assertion that Neymar’s new club should pay the amount claimed if the player does not ‘take on responsibility’ was met with surprise by PSG, who responded in kind with an official statement of their own:

“Paris Saint-Germain was surprised to learn of FC Barcelona’s statement today announcing the start of legal proceedings in Spain against its former player Neymar Jr. and indicating that should Neymar Jr. fail to pay the monies claimed by his former club, Paris Saint-Germain will be held responsible to pay the outstanding sum.

Paris Saint-Germain reiterates that, like Neymar Jr., it has always respected all applicable laws and rules in its dealings and, once again, regrets the attitude of FC Barcelona.”

One element of the claim revolves around the loyalty bonus provided for in Neymar’s October 2016 contract, the precise figures of which are currently unknown. That provision reportedly entitled the player to a bonus after 31 July (one year into his contract) and although the release clause was triggered on 3 August, the club claim that he had made the decision to leave before the end of July.

On Wednesday, Neymar publicly announced that he was bringing a claim against Barcelona in respect of a €26 million loyalty bonus he claims he is owed, in relation to the same October 2016 contract. His statement read:

“Regarding the bonuses owed for the execution of the contract of 2016, it is also necessary to inform that the player has already initiated the formal procedures of collection before the competent courts.”

It is noteworthy that Barcelona have brought their claim before the Jutjat Social, the Catalonian Labour Tribunal, although the club have passed the claim onto the Spanish Football Federation for referral to FIFA and the French Football Federation. The usual state of affairs with transfer disputes that possess a cross border element is that claims are brought before FIFA. This may not always be the case, but it is reported that Neymar’s claim for €26 million was issued directly with FIFA (as opposed to with the Jutjat Social).

If FC Barcelona’s claim against Neymar were to come before FIFA, it will be interesting to see the legal and/or regulatory basis to its claim.  A claim in circumstances where a player has allegedly “not finished his contract with the club” would suggest a claim based on Articles 16 and 17 of the FIFA regulations on the Status and Transfer of Players. Article 16 provides:

“A contract cannot be unilaterally terminated during the course of a season.”

Article 17 provides that where a contract is terminated without just cause, the party in breach shall pay compensation and/or be subject to sporting sanctions. Further, if compensation is required “the professional and his new club shall be jointly and severally liable for its payment.” Article 17 also allows for the application of sporting sanctions for clubs or players that are found to induce a breach of contract.

Yet the present dispute seems to relate more closely to the entitlement to loyalty payments.  This may mean that there is no need for the Article 17 regime to come into effect.  This may be a result of the fact that buy-out clauses are mandatory in Spain.  This would appear to render a claim for unlawful termination in the present much more difficult.

At this stage, any comment on the dispute necessarily involves a degree of speculation.  The details of the parties’ respective cases have not yet been made public.  It is therefore difficult to say with any certainty how this matter will turn out.  What is clear however is that the biggest transfer saga of 2017 has plenty of life in it yet.