The potential £80m Loss of Revenue Claim

This is something I have posted several times over the years. I have a legal background and it is a subject I have even discussed with Mehmet. Who knows I made have even given him the idea?

The way I see it and have always seen it, is this.

1) If we win the CAS case - We cannot sue Nantes because he was not our player.

2) If we lose the CAS case - It will be judged that he was our player and we can sue Nantes (See Below)

The rationale is as follows:

In the UK Civil Courts for a Claim in negligence to succeed it must be proved that:

(a) A defendant has a duty of care to the Claimant - (i.e. Nantes had a duty of care to CCFC)
(b) That the duty of care was breached - (i.e Nantes allowed an unauthorized pilot/agent to deliver CCFC assets to Wales)
(c) As a result of that breach financial loss occurred - (i.e loss of a player worth £15m & Loss of Revenue)

Also remember that the burden of proof in the Civil Courts is less than in the Criminal Courts

In the Criminal Courts the burden of proof is - "Beyond reasonable doubt"
In the Civil Courts the burden of proof is "On the balance of probabilities"

We all have (a) a duty of care to each other and Nantes certainly had a duty of care to CCFC.

So we need to prove (b) did Nantes allow an unauthorized pilot/agent to deliver one of CCFC assets to Wales?

Let me put a slightly different spin on this. Let us say CCFC purchased £1m worth of clothing items from Nantes and the Nantes management chose to use an agent W.McKay to organize a flight to send those goods to us - we would be able to claim compensation for those goods - Do you agree?

In the same way, subject to CAS, we have an asset (E.Sala) who was worth £15m. Nantes used an agent to send those goods to us and did so via an unlicenced route. W.McKay has already been found guilty and, in the legal system, if you are found guilty of a Criminal Act then you are automatically liable under Civil Proceedings.

So Nantes failed to deliver our assets and we are able to sue Nantes for £15m accordingly.

The question as to whether we can sue for Loss of Revenue is an interesting one.

Those who have been involved in Car Accidents or Taxi Claims will appreciate claims for Loss of Earnings. This is quite similar.

CCFC had purchased a striker who was presently leading the French goalscoring charts and therefore "on the balance of probabilities" I believe a Court would accept that he would have scored a reasonable number of goals to keep the club in the Premier League. Remember we only finished 2 points behind Brighton

Accordingly, the loss the club has sustained, since being relegated, could (in my opinion) be recoverable.

I do have a legal background but I would imagine that the club has discussed this point with some seriously high-standing Barristers - QCs probably - and if they believe that the club can prove this loss then they are right to go for it.



The best outcome for Nantes, in my opinion, is for the CAS to determine that the player was still owned by them. Ok they will not receive the £15m (which they have not received anyway to date) but they will not be liable to pay £80m

For CCFC I think the best outcome is for the CAS to say E.Sala was a CCFC player. We owe Nantes £15m and then we can recover that £15m (for failing to deliver the asset) and also get another £80m on top.

Excrllent post and evaluation, Paul...

Thank you!

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Certainly an interesting opinion.

I'd love for this to be right but I'm not sure it does pass the "balance of probabilities" burden of proof. It would be pretty easy for Nantes lawyer to challenge that by stats on Sala's goalscoring, possibility of injury, unproven in Prem, etc.

However, your points on whether Sala was a Cardiff player and/or the duty of care that Nantes/their agent had to deliver him are certainly pretty strong in my eyes, particularly since the criminal trial outcomes. They are certainly points that need a tribunal to decide upon. What I haven't seen is the detailed judgment of the last hearing that we are appealing. I'd like to see the reasons they gave for not upholding our claims at that stage, are they publicly available anywhere ?

Let's hope we get a decision sooner rather than later.

Cheers Paul, a very interesting post by you , Thanks

Certainly an interesting opinion.

I'd love for this to be right but I'm not sure it does pass the "balance of probabilities" burden of proof. It would be pretty easy for Nantes lawyer to challenge that by stats on Sala's goalscoring, possibility of injury, unproven in Prem, etc.

However, your points on whether Sala was a Cardiff player and/or the duty of care that Nantes/their agent had to deliver him are certainly pretty strong in my eyes, particularly since the criminal trial outcomes. They are certainly points that need a tribunal to decide upon. What I haven't seen is the detailed judgment of the last hearing that we are appealing. I'd like to see the reasons they gave for not upholding our claims at that stage, are they publicly available anywhere ?

Let's hope we get a decision sooner rather than later.

You can download the FIFA Player Status report here, the link is in the page. I read though it a while ago and it does help, it revealed the direction we may travel in when it was published:

https://www.fifa.com/about-fifa/organis ... le-on-lega

For me, I cant see paying Nantes and claiming 80million back is the best case scenario. I know you are stating facts, no problem. Hoping we lose to claim more money out of this situation is just dreadful from a moral perspective, I struggle with looking at it from a strictly legal perspective. The argument of liability is in reference to a human being and we must remember that. I understand wanting our money back but that’s it’s for me.

For me, I cant see paying Nantes and claiming 80million back is the best case scenario. I know you are stating facts, no problem. Hoping we lose to claim more money out of this situation is just dreadful from a moral perspective, I struggle with looking at it from a strictly legal perspective. The argument of liability is in reference to a human being and we must remember that. I understand wanting our money back but that’s it’s for me.

I’m afraid that this is a business as well as a club.
If the tables were turned would they claim against us?
I would wager they would.
Also, the fact that, this would seem to be blame laid at their door (I.E duty of care) then yes, we should claim the £80m.
After all, it would be them that should have taken responsibility of their duty.
Thousands of cases like this happen all the time in the insurance business concerning H+S and who’s at fault.
The only difference here is it’s high profile.

Certainly an interesting opinion.

I'd love for this to be right but I'm not sure it does pass the "balance of probabilities" burden of proof. It would be pretty easy for Nantes lawyer to challenge that by stats on Sala's goalscoring, possibility of injury, unproven in Prem, etc.

However, your points on whether Sala was a Cardiff player and/or the duty of care that Nantes/their agent had to deliver him are certainly pretty strong in my eyes, particularly since the criminal trial outcomes. They are certainly points that need a tribunal to decide upon. What I haven't seen is the detailed judgment of the last hearing that we are appealing. I'd like to see the reasons they gave for not upholding our claims at that stage, are they publicly available anywhere ?

Let's hope we get a decision sooner rather than later.

Here is the report of the FIFA DRC which decided that Cardiff had to pay Nantes FC the first instalment of the transfer fee.

https://digitalhub.fifa.com/m/5ca26906b ... dw-pdf.pdf

It's heavy reading but basically FIFA decided the transfer had been completed because the Welsh FA had acknowledged receipt of the ITC at 17.30pm on the evening of the fateful flight. This besides the Welsh FA having NO governance over the player or club and that the contract stated the ITC should be issued between between the FA & FFF.

As the OP has indicated there is likely a civil case between Cardiff and Nantes pending should Cardiff lose the CAS appeal it told Nantes as much in paragraph 24.

This still has a long way to go in my opinion.

This is a good piece to refresh your memory of the Sala case. Some very dodgy dealings going on both by Nantes owners and the five agents involved all set to get a cut of the transfer fee. Some new info too, like the 'backdated' cheque to Sala' s mother on the day he disappeared, McKay artificially inflating Sala's worth and him threatening Ken Choo and City staff with violence.

Cardiff's lawyers call the case file "The Onion", as the more layers you peel back, the more it stinks.

You may have to click the link headline to access the piece for some reason.

https://en.m.wikipedia.org/wiki/Transfe ... f_City_F.C.

On sky sports news club deny making the offer... the claim came from an undated version of a book written by harry harris and was published on Monday.... looks like the story published by sun ect was done before checking facts with club

On sky sports news club deny making the offer... the claim came from an undated version of a book written by harry harris and was published on Monday.... looks like the story published by sun ect was done before checking facts with club

I was told the original article was done over a year ago?

On sky sports news club deny making the offer... the claim came from an undated version of a book written by harry harris and was published on Monday.... looks like the story published by sun ect was done before checking facts with club

I was told the original article was done over a year ago?

Yes that's when book was originally published chris.... Why it was updated this week no idea , but even more baffling us why did Williams and sun ect decided to run the story without doing due diligence.... unless its attempt to embarrass club again?

Morning All

Sorry, I have not replied earlier but there are some very interesting replies to what is a very emotive subject.

I do want to agree firstly with "Taff on the Mersey" in that a person's life was lost here. Actually, two, because ESala's father died shortly afterward, it can appear a little heartless to talk about money in such circumstances. I personally lost my dad, who was killed in a car accident, when I was a child - so I do know firsthand the effect it has. But in the legal world, when there is a loss, financially is the main way a loss is restored - and that unfortunately is just fact.

And "Grange End Star" - thank you for sharing the FIFA document. I had not previously seen that but, in paragraph 34, it does confirm there being two separate issues here:

1) Was ES a CCFC player and therefore we owe Nantes £15m
2) Did Nantes breach their duty of care to CCFC causing (a) an immediate loss of a £15m player and (b) Loss of Revenue

And "Piledriver" I do note your comments about the "Balance of Probabilities" and I will comment on that below.

Yesterday the club issued a statement confirming that no claim has presently been made. That is not to say they will not be making a claim. if the conditions turn out to be what many of us expect them to be.

CCFC can only make a claim if it has been decided, by CAS, that the player was ours. Once that has been established then the club will have to pay the £15m to Nantes but, should it so wish, it can then pursue a Civil Action for (a) The loss of an asset in the sum of £15m and (b) Loss of Revenue which has been quoted at £80m

Turning to the "Balance of Probabilities" this is a very interesting point in itself because it cannot be guaranteed that ES would have even scored 1 goal never mind scoring enough goals to take us out of the relegation zone. Indeed he could have picked up an injury in his first few games and not played at all.

So this is where I do think a Court would show some discretion.

A possible outcome could be that the Court decide that there was a 70% chance that ES would have scored enough goals to ensure that CCFC finished above Brighton and remained in the Premiership. If this were the case (assuming £80m to be correct for this purpose only) then the Court may award the club £15m for the loss of the Asset (the player) and also award £56m (£80m x 70%) for the potential loss of Revenue.

This is one potential outcome.

No matter what people think of clubs stance on this the more comes out the more it appears club was right to withhold the transfer fee and challenge things in court.

No matter what people think of clubs stance on this the more comes out the more it appears club was right to withhold the transfer fee and challenge things in court.

Definately.

In regards to stage 1 I definitely think we have a duty to pay Nantes £15m as he was our player

But stage 2, for the reasons above, I honestly believe we will get our money back and then some on top

No matter what people think of clubs stance on this the more comes out the more it appears club was right to withhold the transfer fee and challenge things in court.

Definately.

In regards to stage 1 I definitely think we have a duty to pay Nantes £15m as he was our player

But stage 2, for the reasons above, I honestly believe we will get our money back and then some on top

Unfortunately think 2nd part is going to take considerable time to settle through courts as so many people involved or liable ...unless nante pays up outside court.

Excuse my ignorance but isn’t this £80m compensation claim a load of bollocks?

The daily mail and Wales online both use the Sun as their source. The Sun article uses a (Judging by the Amazon reviews poorly researched and poorly written) book published in January 2020 as their source, was this not before any court cases had occurred? Secondly the club have come out and said it’s nonsense anyways.

Excuse my ignorance but isn’t this £80m compensation claim a load of bollocks?

The daily mail and Wales online both use the Sun as their source. The Sun article uses a (Judging by the Amazon reviews poorly researched and poorly written) book published in January 2020 as their source, was this not before any court cases had occurred? Secondly the club have come out and said it’s nonsense anyways.

I think it was the Mail first then the others followed, but yes. I think an updated version of the book was recently published but I agree its purely speculation and probably a load of rubbish.
My thoughts are that why would the club include a provision in the club accounts for £20m if they intend to claim £80m afterwards.

I’m not interested in newspaper articles. The actual value of the loss week be quantified by lawyers and accountants

What I would say is that if getting promoted is worth £200m then I am sure it can be said that getting relegated could lose you £200m

£80m might just be a conservative estimate

This is something I have posted several times over the years. I have a legal background and it is a subject I have even discussed with Mehmet. Who knows I made have even given him the idea?

The way I see it and have always seen it, is this.

1) If we win the CAS case - We cannot sue Nantes because he was not our player.

2) If we lose the CAS case - It will be judged that he was our player and we can sue Nantes (See Below)

The rationale is as follows:

In the UK Civil Courts for a Claim in negligence to succeed it must be proved that:

(a) A defendant has a duty of care to the Claimant - (i.e. Nantes had a duty of care to CCFC)
(b) That the duty of care was breached - (i.e Nantes allowed an unauthorized pilot/agent to deliver CCFC assets to Wales)
(c) As a result of that breach financial loss occurred - (i.e loss of a player worth £15m & Loss of Revenue)

Also remember that the burden of proof in the Civil Courts is less than in the Criminal Courts

In the Criminal Courts the burden of proof is - "Beyond reasonable doubt"
In the Civil Courts the burden of proof is "On the balance of probabilities"

We all have (a) a duty of care to each other and Nantes certainly had a duty of care to CCFC.

So we need to prove (b) did Nantes allow an unauthorized pilot/agent to deliver one of CCFC assets to Wales?

Let me put a slightly different spin on this. Let us say CCFC purchased £1m worth of clothing items from Nantes and the Nantes management chose to use an agent W.McKay to organize a flight to send those goods to us - we would be able to claim compensation for those goods - Do you agree?

In the same way, subject to CAS, we have an asset (E.Sala) who was worth £15m. Nantes used an agent to send those goods to us and did so via an unlicenced route. W.McKay has already been found guilty and, in the legal system, if you are found guilty of a Criminal Act then you are automatically liable under Civil Proceedings.

So Nantes failed to deliver our assets and we are able to sue Nantes for £15m accordingly.

The question as to whether we can sue for Loss of Revenue is an interesting one.

Those who have been involved in Car Accidents or Taxi Claims will appreciate claims for Loss of Earnings. This is quite similar.

CCFC had purchased a striker who was presently leading the French goalscoring charts and therefore "on the balance of probabilities" I believe a Court would accept that he would have scored a reasonable number of goals to keep the club in the Premier League. Remember we only finished 2 points behind Brighton

Accordingly, the loss the club has sustained, since being relegated, could (in my opinion) be recoverable.

I do have a legal background but I would imagine that the club has discussed this point with some seriously high-standing Barristers - QCs probably - and if they believe that the club can prove this loss then they are right to go for it.



The best outcome for Nantes, in my opinion, is for the CAS to determine that the player was still owned by them. Ok they will not receive the £15m (which they have not received anyway to date) but they will not be liable to pay £80m

For CCFC I think the best outcome is for the CAS to say E.Sala was a CCFC player. We owe Nantes £15m and then we can recover that £15m (for failing to deliver the asset) and also get another £80m on top.

Has McKay been found guilty though? I thought it was just Henderson?

This is something I have posted several times over the years. I have a legal background and it is a subject I have even discussed with Mehmet. Who knows I made have even given him the idea?

The way I see it and have always seen it, is this.

1) If we win the CAS case - We cannot sue Nantes because he was not our player.

2) If we lose the CAS case - It will be judged that he was our player and we can sue Nantes (See Below)

The rationale is as follows:

In the UK Civil Courts for a Claim in negligence to succeed it must be proved that:

(a) A defendant has a duty of care to the Claimant - (i.e. Nantes had a duty of care to CCFC)
(b) That the duty of care was breached - (i.e Nantes allowed an unauthorized pilot/agent to deliver CCFC assets to Wales)
(c) As a result of that breach financial loss occurred - (i.e loss of a player worth £15m & Loss of Revenue)

Also remember that the burden of proof in the Civil Courts is less than in the Criminal Courts

In the Criminal Courts the burden of proof is - "Beyond reasonable doubt"
In the Civil Courts the burden of proof is "On the balance of probabilities"

We all have (a) a duty of care to each other and Nantes certainly had a duty of care to CCFC.

So we need to prove (b) did Nantes allow an unauthorized pilot/agent to deliver one of CCFC assets to Wales?

Let me put a slightly different spin on this. Let us say CCFC purchased £1m worth of clothing items from Nantes and the Nantes management chose to use an agent W.McKay to organize a flight to send those goods to us - we would be able to claim compensation for those goods - Do you agree?

In the same way, subject to CAS, we have an asset (E.Sala) who was worth £15m. Nantes used an agent to send those goods to us and did so via an unlicenced route. W.McKay has already been found guilty and, in the legal system, if you are found guilty of a Criminal Act then you are automatically liable under Civil Proceedings.

So Nantes failed to deliver our assets and we are able to sue Nantes for £15m accordingly.

The question as to whether we can sue for Loss of Revenue is an interesting one.

Those who have been involved in Car Accidents or Taxi Claims will appreciate claims for Loss of Earnings. This is quite similar.

CCFC had purchased a striker who was presently leading the French goalscoring charts and therefore "on the balance of probabilities" I believe a Court would accept that he would have scored a reasonable number of goals to keep the club in the Premier League. Remember we only finished 2 points behind Brighton

Accordingly, the loss the club has sustained, since being relegated, could (in my opinion) be recoverable.

I do have a legal background but I would imagine that the club has discussed this point with some seriously high-standing Barristers - QCs probably - and if they believe that the club can prove this loss then they are right to go for it.



The best outcome for Nantes, in my opinion, is for the CAS to determine that the player was still owned by them. Ok they will not receive the £15m (which they have not received anyway to date) but they will not be liable to pay £80m

For CCFC I think the best outcome is for the CAS to say E.Sala was a CCFC player. We owe Nantes £15m and then we can recover that £15m (for failing to deliver the asset) and also get another £80m on top.

Has McKay been found guilty though? I thought it was just Henderson?

Wasnt he barred from being an agent ... certainly very dodgy character doing very dodgy dealings with very dodgy people.

Interesting thread this (sorry I know thats probably the wrong word given the circumstances).

Thanks for posting Paul, the only thing I dont understand is how is it/was it Nantes responsibility to 'deliver' the player?

Its just not something I cant get my head around even with the clothing analogy as I just see it as completely different.

Like what is being said is say Man Utd bought Rubin Colwill from us and we sold him, job done. Then his agent arranged for him to travel to Manchester on the train but the train driver was drunk, skipped a signal, crashed and Colwill died, how is that Cardiff City's fault?

Or was it part of the deal that Nantes would arrange the safe travel of the player to Wales as part of the deal, if so then obviously they are at fault.

Lastly and most importantly Im sorry that happened to you when you were a child mate, losing your dad likd that , sounds like you have done well in life though and I bet he would be proud of you

Cheers for your comments RV. Yes, at the time it was quite horrific. It happened on the old St Mellons Road near Castleton. Dad was coming back to watch me play for Glyncoed Juniors when a number 30 bus flicked one of those metal cats-eyes out of the ground and it killed him instantly. They weigh 14lb and at a speed of 70mph, you are not going to know much about it.

42 years later I still think of him every day.

But time is a great healer. I don't forget but, like many others who have been through worse, I have lived a normal life.

As to the situation with Nantes you are right to struggle to get your head around that.

It depends solely as to whether W.McKay/Henderson was acting as an agent for Nantes - to deliver the player to us or whether he was acting as an agent for CCFC or indeed whether he was acting as an agent for E.Sala.

If we asked W.McKay to organize the flight then were stuffed. If Emiliano asked W.McKay to organize the flight again we have no claim against Nantes. But if Nantes asked W.McKay to organize the flight (potentially as a parting gift to the player) then yes we have a claim.

Interesting thread this (sorry I know thats probably the wrong word given the circumstances).

Thanks for posting Paul, the only thing I dont understand is how is it/was it Nantes responsibility to 'deliver' the player?

Its just not something I cant get my head around even with the clothing analogy as I just see it as completely different.

Like what is being said is say Man Utd bought Rubin Colwill from us and we sold him, job done. Then his agent arranged for him to travel to Manchester on the train but the train driver was drunk, skipped a signal, crashed and Colwill died, how is that Cardiff City's fault?

Or was it part of the deal that Nantes would arrange the safe travel of the player to Wales as part of the deal, if so then obviously they are at fault.

Lastly and most importantly Im sorry that happened to you when you were a child mate, losing your dad likd that , sounds like you have done well in life though and I bet he would be proud of you

RV, the Law of Agency is (I think) one of the oldest contract laws in place and one of the things it does is to ensure someone can’t sidestep responsibility by saying “he did it” etc. an agent acts on behalf of his employer to carry out his instructions and if he f**ks up the employer is still responsible. McKay is on record many times saying he approached Nantes telling them they could get a high price for ES selling him to PL side. He is also on record as telling CCFC and other clubs he, or his sons firm, had the sole rights to sell ES in the UK. Therefore McKay has repeatedly held himself out to all parties as being the agent responsible for the deal. He organised the flight now proven in court and I hope Paul has hit it right on the nail in his description. The human side of this whole episode is horrendous, but it is also separate from the contractual or legal side of it all. McKay seems right scumbag in amongst it all and I hope there is some justice against him one way or another.

Whilst it is a well argued case, the law relating to purely economic loss in negligence cases is far harder to establish than that relating to personal injury and the club would have a very difficult job establishing that Nantes had a duty to the club as opposed to a duty to Sala himself. And of course the law you are quoting is English Law. Nantes are a French club and the negligent act arguably took place in France so if the club were able to sue on this basis any case would have to be heard in France under French law.

The club probably would have had a better case to defend no payment under English contract law (and possibly even loss of revenue) but that's why FIFA and the Court of Arbitration get involved, because of the different legal jurisdictions and rules relating to contracts in different countries.

One thing is certain, it would be a field day for the lawyers!