FIFA Case Note: Newell’s Old Boys v. Roma

In the summer of 2019, Roma transferred two players to Spartak Moscow for €3 million each. The first player — well-regarded striker Ezequiel Ponce — was worth at least that much. But the second — reserve team goalkeeper Andrea Romagnoli — was worth far less. At the time, Roma owed a sell-on fee to Argentine club Newell’s Old Boys under a 2015 transfer agreement that sent Ponce to the Italian capital. Coincidentally or not, by transferring Ponce and Romagnoli for a combined €6M, rather than transferring Ponce alone for €6M, Roma watered down the sell-on fee it owed to Newell’s. Claiming Roma devised the unusual double transfer to reduce the sell-on artificially, Newell’s brought the case to FIFA’s Players’ Status Committee.

The PSC issued its ruling last October. In short, the single judge concluded there was no direct evidence the two transfers were linked. Thus, he rejected Newell’s claim. Still, the case raises some questions that merit further discussion.

Factual Background

On July 1, 2015, the Rosario-based Newell’s sent their countryman, Ponce, to Roma for €4.2M, plus a 40% sell-on fee. Over the next three years, partly due to injuries, Ponce struggled to establish himself in Italy. He was loaned out twice, both times, without making a significant impact.

In July 2018, Roma sent Ponce on his third loan — this time, to AEK Athens. The deal granted AEK a purchase option: €6M and a 30% sell-on, or €7M and a 15% sell-on. Ponce played well for AEK, leading the team with 21 goals, across all competitions, in the 2018–2019 season. Nonetheless, at season’s end, AEK declined the option.

From all indications, Ponce was not in Roma’s plans. So after AEK declined the option, the club sold him outright to Spartak for €3M, plus €3M in achievable bonuses. The sale triggered Newell’s 40% sell-on clause, which Roma satisfied by paying Newell’s €1.2M, in installments of €800k and €400k.

Four days later, Roma concluded another €3M transfer with Spartak — or more specifically, Spartak B, the Moscow club’s reserve team. But unlike Ponce, the player involved — the 20-year-old Romagnoli — held almost no market value. To that point, Romagnoli’s professional experience consisted of two half-season loans to Serie C clubs. Combined, he played in only two games, and these were the last two games of the 2018/2019 season, when his team had nothing left to play for. Still, at €3M, Romagnoli became Spartak’s most expensive reserve team signing of the 2019–2020 season. (Spartak B bought only one other player, for a much lower fee of €75k).

Newell’s Claim

While technically unrelated to Ponce, Newell’s found the Romagnoli transfer suspicious. In their view, Roma packaged his transfer with Ponce’s to reduce the club’s sell-on payment to Newell’s. According to Newell’s, Ponce’s real value mirrored AEK’s €6M option to purchase him. Combined, Ponce and Romagnoli’s transfer fees totaled €6M. But instead of transferring Ponce at his real value (allegedly, €6M) and Romagnoli at his real value (allegedly, €0), Roma allocated €3M to each player. This halved Ponce’s transfer fee and, in turn, dropped Newell’s sell-on payment from €2.4M to €1.2M.

From this, Newell’s concluded Roma had engaged in a bad faith scheme to circumvent the sell-on clause in the clubs’ 2015 transfer agreement.

The PSC’s Decision

To the single judge, the overriding issue was whether Newell’s could establish a connection between the two transfers. On this front, Roma and Spartak produced all correspondence between the clubs relating to both transfers. After reviewing that evidence, the judge found no evidence that the transfers were linked. Essentially, this doomed Newell’s claim.

But the single judge also examined the circumstantial evidence of a connection — primarily, the relationship between the transfer fees and the players’ fair market values.

First, he concluded €3M was at least within range of Ponce’s fair market value. Newell’s had argued Ponce’s value was approximately the same as AEK’s €6M purchase option. This position suffered from two clear weaknesses. First, Ponce’s transfer agreement contained achievable bonuses that could push his fee as high as €6M, the value Newell’s asserted. In other words, Spartak could end up paying the amount Newell’s deemed Ponce’s fair market value.

Second, the purchase option revealed little about Ponce’s value because AEK declined the option. So the market may not rate Ponce as a €6M player.

On the other hand, the judge found Romagnoli’s fee “strangely high.” And while he did note that there could be reasons to pay well above market for a player, he did not identify any. So it is a safe assumption that the single judge believed Romagnoli’s transfer was suspicious. That said, he did not believe those doubts were powerful enough to swing the case in Newell’s favor.

At bottom, the single judge indicated that, even if both transfer fees were suspicious, Newell’s would still need direct evidence of a link to establish Roma circumvented the 2015 transfer agreement. This Newell’s did not have. So their claim failed.

Takeaways

1. If applied to the letter, the single judge’s decision could offer license for clubs to execute schemes resembling the one Newell’s attributed to Roma. As the opinion acknowledges, only the rare case will unearth direct evidence that two clubs collaborated. In fact, neither club would need to mention the scheme. Take the Roma-Spartak example. If Roma were attempting a scheme, Spartak would probably gather that from the offers for both players.
2. If the soccer market is vulnerable to a sly double transfer, what are the remedies? I can think of two. The first would be for FIFA to create rules to thwart this sort of ingenuity. Consider this option easier said than done. Any rule that relies on the players’ fair market values would leave administrators and judges to find a number that, in most cases, is better left to the market. It may also hinder clubs’ autonomy in that a governing body could void their arms-length transactions. So FIFA may be hesitant to get involved.
3. The second remedy could rely on the clubs themselves to negotiate sell-on clauses that avoid situations like the one Newell’s (allegedly) encountered. For example, Newell’s could have tried to add a caveat to the transfer agreement, providing that the sell-on would be calculated off Ponce’s transfer fee and the fees for any other player Roma transfers to the same club during the same transfer window. Here, the potential roadblock would be FIFA and UEFA’s third-party influence rules. In general, these forbid agreements which force or incentivize clubs to make sporting decisions they do not arrive upon independently. Returning to the above example, if Roma suffers a higher sell-on fee by transferring additional players to the same club as Ponce, they may avoid those transfers, even if the club otherwise would have made them. And this could be deemed third-party influence. A full analysis of these rules will have to wait for its own article. But for now, the point is that clubs’ contracting possibilities are not endless.