The sports representation contract and exit clause. A recent decision by the Italian National Olympic Committee's Sports Guarantee Board

The Collegio di Garanzia dello Sport del Coni (Italian National Olympic Committee's Sports Guarantee Board) recently issued an arbitration award concerning a dispute that arose between a sports agent and one of his former clients, Claudio Cassano, a young Italian football prospect currently playing in Serie B with Cittadella. The dispute arose in relation to a contractual clause inserted in the sports representation contract, agreed between the parties, valid until 31 December 2024, which provided for the possibility for both contracting parties to withdraw without just cause by paying an agreed sum set at zero euros.

Following the exercise of this clause, by the young player, the player’s former agent appealed to the Board, requesting that the defendant be instructed to pay €80,000. The former agent considered the termination to be illegitimate since it was in breach of Article 1725 of the Civil Code, which, in relation to fixed-term mandate contracts, provides for an obligation to pay damages if early termination occurs without just cause. In this case, the player had justified the termination on the basis of disagreements about possible career development.

The professional player entered an appearance contesting the adverse claim, considering that the contractual provision was absolutely valid and, consequently, that there were no grounds to support the claim for damages.

First of all, the Board clarified that it is a prerogative of the parties to include a termination without just cause clause in the contract, as an exception to the provision of Article 1725 of the Civil Code, by virtue of the principle of negotiating autonomy pursuant to Article 1322 of the Civil Code. With regard to the nature of the clause, according to the Board, it was neither a penalty nor a provision falling within Article 1725 of the Civil Code, but rather a simple stipulation of a consideration for the exercise of the right of withdrawal, in this case set at zero euros.

The Board also held that the provision of zero cost for the exercise of the right of withdrawal did not render the clause null and void for the alteration of the principle of equality between the parties, in light of the fact that the clause had been designed to benefit all the parties.

The Board, however, made a further assessment concerning the reasons that led the player to withdraw from the contract. The fact that the termination took place so abruptly, in a time frame close to the new engagement, and with such a generic reason, led the adjudicating body to consider that the player had violated the cardinal contractual principles of good faith and fairness. In fact, the Board reiterated that a duty of solidarity to the contract applies to each party, which "expresses its relevance in imposing on each of the parties to the obligatory relationship, the duty to act in such a way as to preserve the interests of the other, regardless of the existence of specific contractual obligations or of what is expressly established by individual rules of law, so that the violation of this rule of conduct can also derive in itself, a compensable damage".

For this reason, the Guarantee Board, while recognising the validity of the termination based on the contractual provision, partially upheld the appeal instructing the player to pay of the sum of €30,000.00, offsetting the legal costs given the novelty of the issue dealt with.