Over the last few days the registered letter (Burofax) sent by Leo Messi to Barcelona Football Club with notice of his intention to leave the club has been much talked about.
However, it has not taken long for controversy to arise regarding this decision because, -according to what has been published and without access to the real content of the clause in question- the football player had the option to exercise the right to terminate the contract without payment of the termination clause no later than the 10th June 2020.
That said, the player gave said notice on 25th August, 2 days after the final of the Champions League, originally scheduled for 30th May.
With regard to this point the club gave a negative reaction to the player exercising this right, upon the consideration that it was outside the established time limit (10th June), which would imply that the player must settle the in force termination clause for the amount of Euro 700 million.
The question lies in the intentionality of the parties in agreeing the wording of said clause. The intention was none other than to offer the player the possibility of freely leaving the club at the end of the season, apparently allowing a period for reflection of 10 days as from the end thereof (that is to say the holding of the final of the Champions League). However, when said dates arrived the setting had changed drastically due to the COVID-19 pandemic, and the calendar for the competition was moved.
In view of this, the Spanish Civil Code establishes in article 1281 that “if the terms of a contract are clear and do not leave any doubt as to the intention of the contracting parties, they shall abide by the literal meaning of its clauses”. On the other hand, it indicates that “if the words seem contrary to the evident intention of the contracting parties, the latter shall prevail over the former”. Likewise, the article is complemented by the ensuing article: “in order to judge the intention of the contracting parties, their acts at the time of and subsequently to the contract shall be mainly taken into account”.
With regard to the last detail commented upon, and for greater clarity if necessary, the president of the club himself described in a press conference/public interview the terms of the contract for the members of the football club, indicating that at the end of the third season of the contract, that is to say the 2019-2020 season, and before the start of the 2020-2021 season, the player may freely leave by way of gratitude for the services rendered to the club.
It is obvious that said declarations imply that the intentionality of the parties was that the player may take the decision at the end of the season, as it literally says so. Thus, given the new scenario that we are faced with, and following the modification to the calendar, the end of the season no longer coincided with the dates initially agreed upon, although it seems evident that the intentionality was to give the player this option on these dates because it was when the season ended.
Consequently, it seems reasonable to think that, in a possible court proceeding, a judge would most probably interpret the contract in accordance with the intentionality of the parties, and not strictly adhere to the agreed upon dates, making it unlikely that the player would be forced to pay the exorbitant sum of the termination clause which, in this case, would most possibly be moderated by the judge since 75% of the contract has been consumed, among other criteria.
Andreas Terán
Vilá Abogados
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4th September 2020
