According to Article 21 of the FIFA Regulations on the Status and Transfer of Players (RSTP), solidarity contribution must be paid whenever a professional player is transferred before the expiry of his contract. Likewise, Annexe 5, par. 1, of the RSTP, sets out that solidarity contribution becomes due “if a professional moves during the course of a contract.” While there is no doubt about the obligation to pay solidarity dues on the occasion of the “typical” transfer agreement entered into by two clubs, some uncertainty exists in relation to the various hypothesis of earlier termination of contracts caused by the exercise of buy-out and penalty clauses.
As a matter of fact, the move of the player that follows the exercise of either clause takes place without the former club giving its consent to the earlier termination of the contract.
To be more accurate, one should say: regardless of the former club granting its consent at the time when the clause is exercised, given that both FIFA and the Court of Arbitration for Sport (CAS) have recognized that the former club’s consent can be considered as given in advance, at the time when the buy-out/penalty clause was agreed upon.
This was the reasoning of the “Zarate case”,[1] that is considered the leading case to establish whether the exercise of buy-out/penalty clauses triggers the solidarity mechanism.