I have already referred in this post to the contractual side of TPO financing and the issues that may arise, specially thouse concerning the potential infringement of article 18 Bis of RETJ by BUY-SELL clauses. In this regard, I have also criticized the system of prohibition of influence foreseen for a different situation of the current one, and also pointing out that the financing of TPO to a football club always imposes -some how- a degree of influence tied up to the funding. This situation may confer to the FIFA current legal framework a legal uncertainty as it is necessary to concrete which degree or intensity of influence is allowed.
Paradigmatic example of the foregoing said is the Doyen-Sporting Sporting of Portugal conflict, which I have already analysed on several occasions, being now ruled by the CAS. In the basis of such conflict lies the compatibility of a BUY-SELL (PUT , imposing to the funding football club the repurchase of the economic rights transferred by the price of the offer rejected by the player). This clause has the purpose of ensuring the investment of the financed club, so that if the football club receives an offer from the player being such offer rejected, the TPO might ensure the equivalent payback to that which would have resulted in case of the acceptance of the offer. In consequence, the football club is free whether to accept or not the offer, pursuing sporting criteria or other opinion. However its refusal implies a specific economic penalty.
It is clear that this clause may suppose a sort of influence, as generally any clause aiming the protection of the interests of a TPO at the funding agreement signed for this purposes (seems logical and not rejectable at all). Therefore it arises the possibility of drafting another type of clauses that influencing the funded football club (as any TPOs operation implies in the above said conditions), makes it in a more limited way..
In this case, it represents a good model of clause in such terms the following one:
The football club may reject an offer, holding back the payment of the financing granted until the expiration of the finance contract. At this situation, the financed football club shall pay the sum that would have received the TPO with the refused offer or by contrary accept other offer. In this last stage and considering the amount that it should have received the TPO with the first refused offer is what establishes the amount to be collected by the TPO, the shortcoming shall be supplied by the financed football club, and the excess will be an exclusive benefit of the club (Ariel Reck in this post refers to this type of clause).
With this type of clauses, the influence of TPO still remains, it nevertheless preserves its right to a minimum payback in the within a period of funding, by limiting the autonomy of the funded football club in a less intense way, accordin to the principle of proportionality.
Obviously, the latter type of clause -more sophisticated- generates lower doses of influence in the funded football club, however I understand that the debate should proceed by other means: replacing the test of influence by a clear, transparent and objective system of operations and financing perf
