THE DILIGENCE OF CREDITORS IN FIFA AND CAS JURISPRUDENCE: A DOCTRINAL AND COMPARATIVE ANALYSIS

Carlos Schneider Salvadores

Attorney at Law

Doctor in Law from University of Salamanca, Spain

Abstract:

This article explores the notion of creditor diligence within the context of FIFA and Court of Arbitration for Sport (CAS) proceedings, especially in cases involving insolvency and sporting succession. Drawing upon leading CAS awards and the amendments decided by the FIFA Council on 9 May 2025, the article systematically addresses the legal obligations of creditors, the procedural alternatives provided by FIFA, and the impact of domestic insolvency proceedings on creditors’ rights. It concludes by offering critical reflections on the balance between procedural diligence and equitable treatment of creditors in the football regulatory framework.

Keywords:

Creditor diligence; insolvency; FIFA Disciplinary Code; CAS jurisprudence; sporting succession; procedural equity; enforcement mechanisms

THE DILIGENCE OF CREDITORS IN FIFA AND CAS JURISPRUDENCE: A DOCTRINAL AND COMPARATIVE ANALYSIS

Carlos Schneider Salvadores

Attorney at Law

Doctor in Law from University of Salamanca, Spain

Summary: 1. Introduction. 2. Swiss Law Approach. 3. Jurisprudential Overview and Trends. 4. The Notion of Diligence of Creditors: Principle and Concept. 5. FIFA Procedure as an Alternative to National Forums. 6. Diligence and the Ability to Register a Claim. 7. Expectation to Recover and Theoretical Possibility. 8. Separation Between Fraudulent Acts and Lack of Diligence. 9. Diligence in Insolvency versus Bankruptcy Proceedings. 10. Debt Origin and Characterization in CAS Jurisprudence. 11. Specific Circumstances of Creditors. 12. The new Article 21(5) of the FIFA Disciplinary Code. 12.1. Introduction. 12.2. Structure and Legal Significance of the Proposed Provision. 13. Conclusion

1. Introduction

The regulation of creditor claims within the international football ecosystem has become increasingly complex, particularly in light of evolving financial practices, legal restructurings, and the transnational nature of the sport. As football has globalized, with players, agents, member associations and clubs operating across multiple jurisdictions, the task of ensuring compliance with financial obligations—such as unpaid wages, transfer fees, or agency commissions—has exposed significant legal and procedural challenges. These challenges are most acute in situations involving insolvent clubs or those that attempt to evade liabilities through successor entities or artificial corporate transformations.

FIFA, through its Disciplinary Committee, has sought to establish a coherent legal framework that can effectively regulate the obligations of clubs toward their creditors. Central to this framework is the current Article 21 of the FIFA Disciplinary Code, which empowers FIFA to impose sanctions—including transfer bans, points deductions, and expulsion from competitions—against clubs that fail to comply with final and binding financial decisions. These sanctions serve as critical enforcement tools in the absence of a centralized, cross-border judicial mechanism that can compel payment or enforce awards across national boundaries.

However, a pivotal issue that continues to generate substantial legal debate is the standard of diligence expected from creditors in pursuing their claims. FIFA’s system, while robust, is not designed to substitute for national insolvency procedures. Consequently, questions arise as to when a creditor may legitimately turn to FIFA for relief, and whether they must first exhaust domestic remedies such as registering a claim in insolvency proceedings. The balance between procedural obligation and equitable access is delicate, particularly when creditors are situated in different legal, economic, and linguistic contexts.

This article dissects the evolving concept and legal consequences of creditor diligence by examining a selection of landmark awards issued by the Court of Arbitration for Sport (CAS) and the amendments approved by FIFA at its Council meeting of 9 May 2025. These include not only foundational cases such as CAS 2011/A/2646 and CAS 2019/A/6461 but also more recent developments reflected in CAS 2020/A/6884 and CAS 2022/A/9345, which have further refined the application of the diligence standard. The analysis highlights how CAS panels assess whether creditors acted with sufficient promptness, persistence, and reasonableness in preserving their financial rights, particularly in light of structural inequalities between actors in the football ecosystem.

2. Swiss Law Approach

Article 21 of the FIFA Disciplinary Code provides the regulatory foundation that links the international football governance framework with principles deeply rooted in Swiss law, particularly in relation to creditor diligence and insolvency proceedings. Given FIFA’s incorporation under Swiss law and its consistent reliance on Swiss legal principles, interpretation and application of FIFA regulations inherently reflect Swiss legal traditions.

The rigorous Swiss approach to creditor diligence in insolvency and bankruptcy proceedings, codified primarily under the Swiss Federal Act on Debt Enforcement and Bankruptcy (DEBA) and the Swiss Code of Obligations1 (CO), aligns closely with the evolving procedural expectations under FIFA’s regulatory framework. While FIFA’s regulations historically emphasized case-by-case judicial interpretations through its own bodies and the Court of Arbitration for Sport (CAS), recent amendments, notably the introduction of Article 21 of the FIFA Disciplinary Code, reflect a convergence towards the structured, legally mandated diligence prescribed by Swiss insolvency laws. Swiss law explicitly mandates timely action, participatory governance, and proactive oversight by creditors—principles increasingly echoed in FIFA’s disciplinary procedures to ensure fairness, efficiency, and predictability in the adjudication of football-related financial disputes, particularly those involving insolvent or bankrupt entities.

Under Swiss law, creditor diligence in insolvency and bankruptcy proceedings is not merely encouraged but legally mandated through a well-defined framework governed by the Swiss Federal Act on Debt Enforcement and Bankruptcy (DEBA2) and the Swiss Code of Obligations (CO3). Creditors are expected to actively assert and protect their rights by adhering to strict procedural requirements, the failure of which may result in the loss of recovery opportunities and standing in subsequent enforcement processes, including those before FIFA or CAS.

Central to these obligations is the timely registration of claims following a public call by the bankruptcy office (Art. 232(2) DEBA), generally within a 30-day deadline. Failure to file within this period—unless justified—leads to exclusion from the asset distribution (Art. 251 DEBA). Registration is not simply a formality but a key indicator of diligence, establishing that the creditor has taken steps to participate in collective enforcement. This principle is reinforced through the requirement that creditors participate in creditors’ meetings (Art. 235–236 DEBA), where vital decisions regarding estate administration and asset realization are taken. Lack of participation may compromise the creditor’s ability to influence or contest those decisions.

Swiss law also entrusts creditors with an oversight function in monitoring the estate administration (Art. 241(2) DEBA), including the right to challenge mismanagement before supervisory authorities (Art. 17–18 DEBA). This procedural involvement is both a right and a duty, aligning with broader legal expectations of diligence and accountability. Moreover, in composition proceedings (Nachlassverfahren), creditors must evaluate and vote on restructuring proposals with care (Art. 302 DEBA4), as their decisions shape the legal and financial landscape of the proceedings. Careless abstention or refusal to assess such agreements may later be construed as negligent conduct, particularly if the creditor seeks to invoke alternative enforcement through FIFA mechanisms. Additionally, Swiss law empowers creditors to initiate fraudulent transfer challenges via the Actio Pauliana5 (Art. 285–292 DEBA), allowing them to reverse transactions that disadvantage the collective creditor pool. These remedies must be exercised swiftly, as limitation periods are short and courts expect creditors to act promptly and with evidentiary support.

Swiss cross-border insolvency provisions (Art. 166–175 DEBA6) impose heightened due diligence on foreign creditors, requiring them to seek formal recognition and comply with Swiss procedural rules when attempting to engage in local enforcement or protect their interests in Swiss-based estates. These rules are strictly applied and demand that international creditors adapt to Swiss procedural norms rather than bypass them due to jurisdictional unfamiliarity.

In sum, Swiss insolvency law imposes a multi-layered system of creditor duties that encompass claim registration, participatory governance, supervisory engagement, critical assessment of restructuring plans, and proactive legal remedy when abuse is suspected. These obligations are rooted in principles of fairness, procedural economy, and creditor equality. The Swiss legal framework thus presents a rigorous yet balanced approach to creditor diligence—combining legal certainty with equitable enforcement—to uphold the integrity of insolvency proceedings both domestically and in the transnational sports law context. Consequently, Article 21 of the FIFA Disciplinary Code reflects and reinforces these foundational Swiss legal principles, presenting a rigorous yet balanced approach to creditor diligence—combining legal certainty with equitable enforcement—to uphold the integrity of insolvency proceedings both domestically and within the international sports law context regulated by FIFA.

3. Jurisprudential Overview and Trends

A comprehensive review of the CAS awards indicates a trend towards contextual, equity-based assessments of creditor diligence. Panels consider not only formalistic compliance but also the creditor’s capacity, the debtor’s conduct, and the integrity of the proceedings.

These trends affirm the dual-track approach: FIFA offers a unique enforcement framework that operates in parallel to, and occasionally in substitution for, national legal systems. CAS jurisprudence seeks to maintain coherence between these systems, ensuring that international creditors are neither prejudiced by domestic formalism nor enabled to exploit FIFA’s regulatory mechanisms without due care.

Ultimately, creditor diligence is shaped by the intersection of legal opportunity and practical capacity. Panels are increasingly inclined to assess diligence through a contextual lens, balancing procedural obligations with real-world accessibility and fairness. A comprehensive review of the CAS awards indicates a trend towards contextual, equity-based assessments of creditor diligence. Panels consider not only formalistic compliance but also the creditor’s capacity and the debtor’s conduct.

4. The Notion of Diligence of Creditors: Principle and Concept

Diligence, as construed in CAS jurisprudence, is the standard of care expected from a creditor in asserting and preserving a claim7. It requires the creditor to take timely and reasonable action to recover outstanding debts, including participation in domestic insolvency proceedings and FIFA’s internal mechanisms8. CAS 2011/A/2646 crystallized this principle by denying the imposition of sporting sanctions due to the creditor’s failure to register the claim in the debtor’s bankruptcy proceedings despite a theoretical possibility of recovery9.

From a comparative insolvency law perspective, this expectation of creditor diligence mirrors the general legal principle known as the “duty to mitigate” or “procedural diligence” in creditor-debtor relations. In many jurisdictions, creditors are expected to engage with insolvency proceedings through registration of claims with the insolvency practitioner or court. Failure to do so can lead to the forfeiture of rights in distribution, regardless of the underlying merit of the claim. The CAS adopts a similar approach, requiring evidence that the creditor made an effort to engage with the debtor’s legal or administrative process.

However, the application of diligence by CAS panels has not been uniform. In CAS 2019/A/6461, the panel took a pragmatic approach, noting that the creditor club could not have reasonably registered its claim during the liquidation period, as the decision confirming the debt came after liquidation had already commenced. Similarly, CAS 2020/A/6884 reflects a contextual analysis where the player’s inability to intervene in insolvency proceedings abroad was not held against him, but still requiring a certain degree to explore this option.

CAS jurisprudence thus balances legal formalism with equitable considerations. While diligence includes an expectation of procedural initiative—such as timely filings, responses, and appeals—it is also interpreted with an eye toward fairness, particularly where legal, geographical, or financial constraints are involved.

The notion incorporates both subjective and objective elements. Objectively, creditors must adhere to established timelines and utilize available procedures. Subjectively, however, panels consider the creditor’s circumstances—such as financial capacity, legal literacy, and access to representation—when assessing whether the level of diligence exercised was sufficient.

This dual-layered interpretation aligns FIFA enforcement mechanisms with broader insolvency principles, while also safeguarding less-resourced stakeholders in global football. It underscores the evolving nature of “diligence” as more than mere procedural compliance—it is a benchmark of reasonable conduct evaluated against the backdrop of an increasingly complex transnational legal environment.

5. FIFA Procedure as an Alternative to National Forums

FIFA’s legal system is designed to provide a coherent and uniform mechanism for resolving football-related disputes across jurisdictions10. FIFA’s Dispute Resolution Chamber (DRC) and Disciplinary Committee (DC) constitute essential components of this system. Particularly in international transfers and labor relations, FIFA’s jurisdiction acts as a transnational safety net that often complements, and sometimes supersedes, national legal recourse.

In CAS 2019/A/6461, despite the debtor club being liquidated under Estonian law, FIFA continued proceedings based on the principle that FIFA bodies do not enforce decisions through national means but impose disciplinary sanctions for non-compliance. This case underscores the role of FIFA’s disciplinary apparatus as an alternative enforcement mechanism, not tied to the debtor’s existence as a corporate entity, but rather to the continuation of its sporting identity11.

The procedural interaction between FIFA and national courts has prompted debate on jurisdictional primacy. While FIFA cannot override domestic insolvency laws, it maintains its regulatory autonomy by sanctioning clubs at the sporting level12. This creates a bifurcated system: national forums handle asset distribution and liquidation, whereas FIFA enforces sporting consequences like transfer bans or relegation for not respecting a FIFA or a CAS Decision in accordance with Article 21 FDC. CAS 2011/A/264613 and CAS 2020/A/742314 both demonstrate this dual-track enforcement, showing how FIFA procedures persist despite formal insolvency barriers in national systems.14

Furthermore, CAS panels have acknowledged the preferential utility of FIFA procedures in cross-border disputes. In many cases, especially those involving small or foreign creditors, national forums are practically inaccessible due to linguistic, legal, or procedural obstacles. FIFA provides a unified regulatory space where such claims can be pursued efficiently. This was highlighted in CAS 2020/A/6884, where the creditor—a football player—relied on FIFA processes after facing insurmountable procedural difficulties in the national system15.

Nonetheless, FIFA’s system is not a full substitute. While it allows for enforcement through transfer bans and other sanctions, it lacks the coercive powers typical of national courts—such as asset seizure or liquidation control. Consequently, FIFA proceedings are most effective when used in tandem with national procedures, especially where a claim’s enforceability depends on financial recovery, not just sporting pressure16.

In conclusion, FIFA’s procedural framework functions as a vital alternative, particularly in international contexts where national remedies are limited or ineffective. However, its effectiveness depends on its integration within the broader legal ecosystem, highlighting the need for coordination rather than conflict between FIFA’s disciplinary machinery and national insolvency regimes. FIFA’s legal system is designed to provide a coherent and uniform mechanism for resolving football-related disputes across jurisdictions. FIFA’s Dispute Resolution Chamber (DRC) and Disciplinary Committee (DC) constitute essential components of this system. Particularly in international transfers and labor relations, FIFA’s jurisdiction acts as a transnational safety net.

6. Diligence and the Ability to Register a Claim

The creditor’s diligence is intrinsically tied to the ability to register claims, especially in bankruptcy or liquidation proceedings. CAS 2011/A/264617 underscores that failure to register a claim—even when informed of the bankruptcy—may undermine subsequent reliance on FIFA mechanisms. The assumption is that registration, even if unsuccessful, manifests a baseline diligence.

This procedural requirement involves engaging with formal mechanisms under domestic insolvency law. Creditors are generally expected to submit a proof of debt within a legally defined window, often shortly after the declaration of bankruptcy. Failure to adhere to these timelines can result in the exclusion of the claim from any distribution of assets. FIFA and CAS, while acknowledging these constraints, examine whether creditors made reasonable efforts within the procedural timeframe available18.

Yet, the jurisprudence also recognizes that timelines often make registration impracticable. In CAS 2019/A/646119, the creditor was effectively unable to register the claim because the liquidation occurred before the FIFA decision became final. The CAS panel accordingly held that the creditor’s conduct was not negligent, and FIFA was entitled to continue disciplinary proceedings against the successor entity.

Importantly, the duty to register is not absolute. Panels have introduced a reasonableness test, considering whether a creditor could, realistically and timely, act given procedural constraints and international barriers20.

This comparative overview reveals that panels place significant weight on factual context, nature of the claim, and procedural feasibility when assessing creditor diligence. While registration is generally advisable, its absence is not automatically fatal to a claim, particularly where procedural obstacles are well-documented or where the creditor acted with reasonable speed and intent.

Thus, while the ability to register a claim is a foundational element in assessing diligence, it is ultimately evaluated within a broader context of access to justice, equity, and procedural integrity. The creditor’s diligence is intrinsically tied to the ability to register claims, especially in bankruptcy or liquidation proceedings.

7. Expectation to Recover and Theoretical Possibility

Another recurrent theme in CAS jurisprudence is the differentiation between practical recovery and theoretical recovery. The principle of ‘theoretical possibility’ appears in several awards, suggesting that where there exists a legal route for claim satisfaction, a creditor may be expected to pursue it.

In CAS 2011/A/264621, the panel held that the creditor’s failure to file in bankruptcy proceedings constituted a lack of diligence, given the theoretical availability of legal recourse. The tribunal emphasized that even a low chance of success does not relieve a creditor from the duty to engage with available legal procedures.

However, this strict interpretation has evolved. In CAS 2019/A/646122, the panel considered the timeline of proceedings and noted that the creditor had no realistic opportunity to intervene in the liquidation, as the FIFA decision confirming the debt came after the national process had closed. Thus, the expectation to pursue the claim was considered unreasonable in that context23.

Similarly, CAS 2020/A/688424 demonstrated how practical obstacles—such as foreign jurisdiction complexity, linguistic and procedural barriers—can render the theoretical recovery argument moot.

Another relevant case is CAS 2020/A/742325, where the creditor registered the claim during insolvency, but no actual recovery was possible. The CAS recognized the effort as sufficient to demonstrate diligence, even though it yielded no financial result. Conversely, in CAS 2020/A/7481, a lack of timely engagement with either FIFA or national procedures was fatal to the claim.

From these comparisons, it is clear that CAS panels weigh the following factors heavily when evaluating the ‘theoretical possibility’:

• Timing of the national insolvency in relation to FIFA decisions;

• Accessibility and transparency of domestic proceedings;

• Nature of the claim (labor vs. commercial);

• Resources and legal sophistication of the creditor;

• Evidence of creditor intent and attempts to recover.

Thus, while theoretical recovery remains a relevant benchmark, CAS jurisprudence increasingly emphasizes feasibility and reasonableness, aligning the legal expectation with the practical realities facing international creditors in the global football economy26.

The line of jurisprudence reflects a realistic understanding that theoretical legal remedies are not always accessible or feasible for international creditors. Accordingly, the expectation to recover must be evaluated in practical terms, considering language, costs, representation, and the openness of insolvency proceedings.

8. Separation Between Fraudulent Acts and Lack
of Diligence

A critical legal and ethical dimension in the analysis of creditor diligence under FIFA and CAS jurisprudence is the imperative to distinguish between a creditor’s procedural inaction and the debtor club’s fraudulent conduct. This distinction is central to ensure that the regulatory and disciplinary mechanisms of international football are not manipulated by clubs seeking to evade obligations through strategic restructuring, artificial liquidation, or rebranding27.

Several cases —most notably CAS 2020/A/688428 and CAS 2019/A/646129—demonstrate this principle. In both instances, the clubs involved underwent transformations in their legal identity while maintaining operational continuity. These cases involved tactics such as the dissolution of a financially distressed entity, followed by the registration of a new club under a different legal name but with the same assets, management, staff, and sporting license. The panels emphasized that such actions, even if lawful under domestic corporate law, did not immunize the successor entity from liability under FIFA regulations, particularly if there was evidence of continuity and intention to avoid financial obligations30.

CAS jurisprudence has developed a robust analytical framework for assessing such situations. It considers elements like continuity in management, legal and operational succession, use of the same stadium and infrastructure, and inheritance of players and technical staff. If a sufficient nexus is found, the successor club may be held liable under the doctrine of sporting succession, even if the original legal entity is no longer in existence. This framework was effectively applied in CAS 2019/A/646131, where the successor entity was sanctioned under Article 21 FDC for failing to honor a debt inherited through its sporting lineage.

Importantly, these decisions underscore that a creditor’s failure to fully exhaust domestic legal remedies does not absolve a successor club from responsibility when the club has engaged in behavior deemed to be abusive or evasive. The creditor’s procedural shortcomings—such as not registering a claim in time or failing to engage a local lawyer—may inform the diligence analysis but do not automatically shield the club from sanctions if fraud or abuse of process is evident.

This distinction is not merely doctrinal or technical. It goes to the heart of the principles of equity, fairness, and sporting integrity that underpin FIFA’s regulatory architecture. If clubs could freely manipulate their legal identity to escape liabilities, it would erode the rule of law in international sport and undermine trust in the regulatory system. Therefore, CAS panels consistently affirm that while creditor diligence is important, it cannot be wielded as a defense against fraudulent conduct by clubs.

The result is a layered accountability system: creditors must demonstrate reasonable efforts to pursue their claims, but clubs that engage in fraudulent succession or restructuring schemes will not be insulated from liability, regardless of creditor conduct. This approach ensures that the system remains just and dissuades bad-faith actors from exploiting procedural weaknesses to avoid compliance with binding decisions.

In conclusion, the separation between creditor inaction and club malfeasance serves as a cornerstone of the integrity-focused framework upheld by FIFA and CAS. It ensures that procedural imperfections by creditors do not enable systemic abuses by clubs, preserving both creditor rights and the ethical foundations of global football governance.

9. Diligence in Insolvency versus Bankruptcy
Proceedings

The nature of domestic legal proceedings matters. Bankruptcy typically entails total liquidation, while insolvency might permit rehabilitation or restructuring. CAS jurisprudence acknowledges these differences, particularly in assessing what creditors can reasonably do.

In CAS 2011/A/2646, the club was declared bankrupt under Chilean law, and the player failed to register the claim. The CAS panel deemed the claim inadmissible, noting that the Chilean bankruptcy regime provided an accessible route for creditor engagement. The panel found that the creditor’s failure to participate in the local proceedings demonstrated insufficient diligence, even though no actual recovery was guaranteed.

Conversely, in CAS 2019/A/6461, involving Estonian insolvency law, the timing of the FIFA decision and the closure of the liquidation proceedings meant the creditor club had no reasonable opportunity to file its claim. The panel recognized the procedural rigidity of Estonia’s bankruptcy process, where late claims could not be registered, and held that this justified the creditor’s recourse to FIFA’s disciplinary procedures instead32.

A further nuance arises in jurisdictions like Bulgaria, addressed in CAS 2020/A/6884. Bulgarian insolvency law distinguishes between creditors in different procedural categories and imposes formalistic burdens that can hinder foreign claimants33.

These examples illustrate how national bankruptcy regimes differ not only in substance but also in accessibility and transparency. CAS panels have increasingly emphasized the need to assess creditor diligence in light of such legal particularities. A system that excludes foreign or labor-related claims through excessive formality or linguistic hurdles may render a creditor’s failure to register legally excusable34.

The normative tension lies in harmonizing the par conditio creditorum (equal treatment of creditors) principle with FIFA’s independent disciplinary jurisdiction. On one hand, domestic systems emphasize procedural equality and discourage external enforcement. On the other hand, FIFA aims to ensure accountability and fairness, particularly in safeguarding the rights of players and smaller clubs within the global football economy.

CAS jurisprudence thus plays a bridging role, interpreting diligence with sensitivity to the constraints of national systems. This ensures that the creditor’s conduct is not evaluated in a vacuum, but in a comparative legal context that recognizes the variability—and at times, the inaccessibility—of domestic insolvency remedies.

10. Debt Origin and Characterization in CAS Jurisprudence: A Comparative

The classification of financial claims within insolvency proceedings is central to evaluating creditor diligence in the context of sporting disputes governed by FIFA’s regulatory framework. Two CAS awards—CAS 2022/A/9345 (Pavlovic v. FC Astra Giurgiu & FIFA) and CAS 2020/A/7543 (FC Rapid 1923 SA v. Julio Cesar da Silva & FIFA)—offer valuable comparative insights into how arbitral panels distinguish between different categories of debts and the implications of such characterizations for procedural obligations under insolvency law.

In CAS 2022/A/9345, Pavlovic case, the amount at issue originated from a 2015 decision of the FIFA Dispute Resolution Chamber (DRC), which awarded the player contractual damages for breach of contract following his termination in 2014. At the time the claim was filed, the club, FC Astra Giurgiu, was already subject to insolvency proceedings. Importantly, the claim did not concern unpaid salaries accrued during the employment relationship but rather compensation for early termination—a debt that was both post-insolvency in timing and compensatory in nature35.

By contrast, CAS 2020/A/7543, Julio Cesar case, dealt with a 2012 DRC decision awarding EUR 400,000 in unpaid salaries to the player Julio Cesar. The contract had been signed in 2008, and the salary claim was initiated that same year—well before the insolvency of the original club, SC FC Rapid SA. The Panel unequivocally characterized the amount as employment-related remuneration, derived from a concluded labor relationship and clearly predating the commencement of the insolvency proceedings36.

Regarding the legal characterization and procedural consequences, the Panel in Pavlovic emphasized that the post-insolvency nature of the claim—as contractual compensation—imposed an obligation on the creditor to actively register the claim within the national insolvency proceedings. The player’s failure to do so constituted a lack of diligence, thereby excluding the possibility of enforcement through FIFA’s disciplinary mechanisms under Article 21 of the Disciplinary Code37.

In contrast, the Sole Arbitrator in Julio Cesar accepted the argument that the wage-based nature of the claim triggered an automatic registration mechanism under Romanian insolvency law. In this framework, the responsibility to include the debt in the insolvency estate fell on the insolvency administrator, not the creditor. The Panel found no evidence of procedural negligence and underlined that salary claims benefit from preferential treatment in insolvency contexts. Accordingly, the claim remained enforceable38 .

Both panels applied Swiss law subsidiarily. However, in assessing procedural obligations tied to insolvency, they applied Romanian law as the lex concursus. In CAS 2022/A/9345, Romanian legislation required creditors to register post-insolvency claims manually. By contrast, in CAS 2020/A/7543, Romanian Law No. 85/2006 provided for the automatic registration of salary claims based on the debtor’s financial records39.

This divergence in domestic legal treatment significantly shaped the outcome of each case: in Pavlovic, the omission to register the debt was decisive; in Julio Cesar, the lack of a registration obligation preserved the validity of the claim.

The diligence standard under Article 21 of the FIFA Disciplinary Code is thus closely linked to the substantive nature of the debt. For contractual damages (CAS 2022/A/9345), creditors are expected to take affirmative procedural steps to assert their rights within the national bankruptcy framework. For salary arrears (CAS 2020/A/7543), procedural inaction may be excused due to the operation of protective domestic rules and the presumption of registration.

These decisions highlight the importance of aligning FIFA’s enforcement mechanisms with the operative principles of national insolvency regimes, particularly in transnational disputes. They confirm that creditor diligence must not be assessed in the abstract, but rather in light of the legal nature of the claim and the procedural obligations imposed by the relevant domestic legal order.

11. Specific Circumstances of Creditors

CAS panels recognize that not all creditors operate from a level playing field. This is particularly true for individual players, smaller clubs, or agents from developing football regions who may lack the legal infrastructure or financial capability to navigate complex cross-border enforcement procedures. Their ability to act with procedural diligence is often constrained by a combination of structural, economic, and jurisdictional barriers.

A recurring theme in CAS jurisprudence is that access to justice is not uniform, and the assessment of diligence must account for asymmetries in resources and legal sophistication. Players often rely on agents or small legal firms with limited international reach. Smaller clubs might not have in-house legal teams or multilingual staff to interpret insolvency notices or understand registration procedures in a foreign jurisdiction. Procedural rules requiring formal notifications or deadlines may therefore disadvantage these creditors even when they act in good faith.

In CAS 2020/A/742340, the creditor’s act of registering the claim in insolvency, even though no recovery followed, was recognized as a significant demonstration of effort. The CAS acknowledged that the action met the diligence standard, emphasizing the value of procedural intent over result. This contrasts with larger institutions, which might have greater ability to act swiftly and efficiently through retained counsel.

In CAS 2019/A/6461 recognized the geographical and practical limitations involved, particularly the fact that the decision confirming the debt came after the liquidation41. The Panel took into account the creditor’s lack of opportunity to register the claim and declined to penalize it for not engaging with the local insolvency framework42.

Furthermore, in CAS 2022/A/9345, although the player (a Serbian national) failed to register part of his claim in Romanian insolvency proceedings, the decision reflects an important distinction: the creditor had previous successful registration of unpaid wages but failed to register additional amounts awarded through a FIFA decision. The CAS underscored that diligence is measured not only by isolated efforts but by the creditor’s overall conduct in the lifecycle of the debt recovery process43. In this case, the Panel held that awareness and capacity were present, making the failure to register the second component of the claim inexcusable. This judgment illustrates that once a creditor has shown procedural awareness, subsequent lapses will be viewed more critically.

Importantly, this approach has parallels in broader legal systems, where courts apply proportionality or reasonableness tests when evaluating a party’s procedural conduct. FIFA’s approach, as reflected in CAS jurisprudence, appears to embrace a similar philosophy. Equity is upheld not by requiring uniform compliance, but by tailoring expectations to the creditor’s specific situation, including their legal sophistication, language access, and familiarity with international procedural standards.

12. The new Article 21 (5) of the FIFA Disciplinary Code:
A Legal and Regulatory Analysis

12.1. Introduction

The international football ecosystem operates within a legally pluralistic and economically unequal environment, in which financial disputes between clubs, players, agents, and intermediaries often intersect with broader issues of insolvency, jurisdiction, and regulatory enforcement. While FIFA and the Court of Arbitration for Sport (CAS) have progressively developed jurisprudence to address creditor claims, the treatment of creditor diligence—particularly in cases involving bankrupt or restructured clubs—has been marked by interpretative uncertainty.

The introduction of the new Article 21(5) into the FIFA Disciplinary Code (FDC) represents a decisive step in codifying creditor obligations and standardizing the conditions under which financial decisions issued by FIFA bodies or CAS may trigger enforcement measures. Specifically, the provision aims to articulate a clearer framework for evaluating when a creditor has—or has not—acted with sufficient diligence in light of domestic insolvency or bankruptcy procedures.

The changes respond directly to a recurring issue in FIFA and CAS practice: the procedural conduct of creditors in the face of debtor insolvency. While FIFA’s enforcement mechanisms—namely Article 64 of the (former) Disciplinary Code—provide for sporting sanctions against non-compliant debtors, the application of these measures is increasingly complicated by the proliferation of insolvent clubs that undergo restructuring, liquidation, or successor transformations.

In several cases, such as CAS 2011/A/2646, CAS 2019/A/6461, and CAS 2022/A/9345, the decisive issue was not the existence of a valid debt, but whether the creditor had acted diligently—particularly by registering their claim in domestic insolvency proceedings or taking reasonable steps to engage with the process. These cases reveal a tension between creditor protection and procedural fairness for clubs that are genuinely undergoing insolvency in compliance with national law.

To date, these questions have largely been answered through case-by-case adjudication. The proposed Article 21(5) introduces long-needed codification, providing all stakeholders with greater predictability and reinforcing the procedural integrity of FIFA’s disciplinary jurisdiction.

a. Structure and Legal Significance of the Proposed Provision

At its meeting held on 9 May 2025, the FIFA Council approved a series of amendments to the FIFA Disciplinary Code, most notably to Article 21, in order to address long-standing legal and procedural uncertainties concerning the conduct expected of creditors in financial disputes involving insolvent or bankrupt clubs44. These amendments, which were formally communicated to stakeholders through a Circular letter45, introduce specific conditions and requirements that creditors must meet to demonstrate diligence in the enforcement of decisions issued by FIFA or the Court of Arbitration for Sport (CAS). By adopting this reform, FIFA has moved decisively to enhance clarity, consistency, and fairness in its regulatory framework, particularly in cases where domestic insolvency proceedings intersect with the international enforcement of football-related financial obligations.

The new paragraph 5 of Article 21 of the FIFA Disciplinary Code introduces a long-overdue and structurally significant normative and procedural framework for evaluating the diligence of creditors in the context of financial disputes involving clubs undergoing insolvency or bankruptcy proceedings. In doing so, it marks a transformative shift in FIFA’s approach to the enforcement of financial decisions—one that moves away from discretionary, jurisprudential interpretation toward a codified, rule-based system. This shift is not merely technical; it is a critical development that brings greater predictability, transparency, and fairness to the global football regulatory landscape, particularly where financial distress intersects with the enforcement of obligations imposed by FIFA bodies or the Court of Arbitration for Sport (CAS).

Historically, the standard of diligence required of creditors has been developed incrementally through case law, with key precedents—such as CAS 2011/A/2646, CAS 2019/A/6461, and CAS 2022/A/9345—offering fragmented guidance on what constitutes sufficient effort to preserve a claim in the face of debtor insolvency. While this jurisprudence has been valuable, it has left important questions unresolved: What constitutes “reasonable effort”? When does creditor inaction cross the line into negligence? And how should the timing of domestic proceedings relative to FIFA or CAS decisions be taken into account?

The new paragraph 5 directly addresses these gaps, articulating a threefold structure that clearly delineates the responsibilities of both debtors and creditors in the context of domestic insolvency proceedings and international enforcement. These three components are:

(a) A debtor notification obligation: This imposes a proactive duty on debtor clubs to inform creditors about the initiation of insolvency or bankruptcy proceedings within a strict 15-day timeframe. This obligation serves multiple functions. First, it eliminates the informational asymmetry that has historically disadvantaged creditors —particularly foreign players, small clubs, or agents. Second, it ensures that the foundation for assessing creditor diligence is built on the creditor’s opportunity to act. Without timely notice, it is inherently unfair to penalize a creditor for procedural inaction. This part of the provision aligns FIFA’s internal disciplinary expectations with core values of good faith, procedural transparency, and creditor equality, as found in Swiss law (see Articles 232(2), 244 DEBA) and broader comparative insolvency norms.

(b) A presumption of creditor negligence: This clause operationalizes FIFA’s expectations of creditor engagement by introducing a rebuttable presumption of negligence when creditors fail to register their claims after receiving valid notice of domestic proceedings. It shifts the burden of proof onto the creditor to demonstrate a valid justification for inaction, such as legal, logistical, or financial barriers. This presumption provides disciplinary bodies with a clear and administrable standard for evaluating cases, while also deterring tactical behavior from creditors who might otherwise bypass domestic remedies in favor of the perceived expediency of FIFA enforcement.

(c) An exception for procedural impossibility: Perhaps the most equitable component of the provision is the express recognition that creditors cannot be expected to perform the impossible. If a FIFA or CAS decision confirming the creditor’s right is issued after the expiration of the domestic registration window—and if that window cannot legally be reopened—the creditor will not be considered negligent. This clause codifies a principle already acknowledged in CAS jurisprudence (CAS 2019/A/6461) and introduces an essential safeguard against procedural injustice. It protects creditors from being excluded from enforcement mechanisms simply because the timing of decisions fell outside of their control, and it prevents debtor clubs from strategically timing insolvency declarations to frustrate enforcement.

Taken together, these components represent a regulatory innovation within the FIFA legal system. They establish a framework that is not only coherent and principled, but also practical and enforceable. It allows FIFA’s Disciplinary Committee to apply uniform standards when dealing with cases that involve domestic insolvency proceedings, reducing reliance on case-by-case discretion and promoting consistency across decisions. Moreover, by grounding these obligations in a logic that mirrors domestic insolvency law—particularly the Swiss model, which underpins many of FIFA’s legal assumptions—the provision ensures that FIFA’s disciplinary mechanisms remain legally intelligible within the broader architecture of international legal norms.

This development also has wider implications for the global football governance ecosystem. It enhances legal certainty for all parties involved in financial disputes and reinforces FIFA’s position as a sophisticated regulatory body capable of integrating transnational legal principles into its internal processes. By codifying standards of diligence, establishing concrete timelines, and embedding exceptions to preserve fairness, FIFA sets a new benchmark for how international sports governing bodies can balance disciplinary authority with procedural justice in an increasingly complex global environment.

13. Conclusion

The concept of diligence stands as a foundational pillar in the enforcement of financial claims within FIFA’s regulatory and disciplinary architecture. It operates as both a procedural requirement and a normative standard, guiding the behavior of creditors and informing the adjudicative practices of FIFA bodies and the Court of Arbitration for Sport (CAS). In a system where formal enforcement mechanisms are limited by jurisdictional fragmentation and divergent national laws, diligence serves as a common thread that ties together the expectations of fairness, efficiency, and accountability in global football governance.

While creditors are expected to act with responsibility—by taking timely legal steps, engaging with insolvency proceedings when possible, and pursuing their claims through appropriate channels—CAS jurisprudence has repeatedly affirmed that diligence is not to be interpreted as a rigid or punitive standard. Instead, it is a context-sensitive principle, applied with regard to each creditor’s access to legal resources, knowledge of procedural options, and realistic opportunity to act within complex cross-border insolvency frameworks. This means that systemic or procedural limitations, such as lack of notice, linguistic and geographic barriers, and the opacity of foreign legal systems, do not automatically disqualify a diligent creditor from accessing FIFA’s enforcement tools.

The recent evolution of CAS decisions, including CAS 2019/A/6461, CAS 2020/A/6884, and CAS 2022/A/9345, illustrates a jurisprudence that seeks to balance legal certainty with equitable outcomes. These decisions reinforce that FIFA’s disciplinary framework does not operate in a vacuum; it must reflect the structural realities of international football, where asymmetries of power and information are widespread. By adapting the diligence requirement to different creditor profiles—whether they are individual players, agents, or small clubs—CAS has ensured that the principle is applied not only with consistency, but also with fairness and proportionality.

Moreover, the evolving standards of diligence have a broader regulatory function. They promote financial discipline by signaling to clubs that non-compliance with financial obligations—especially through artificial liquidations or successor schemes—will not be tolerated, regardless of procedural gaps in creditor conduct. At the same time, they encourage creditors to remain vigilant, proactive, and engaged with all available remedies, reinforcing the principle that rights must be asserted responsibly to merit protection.

This dual responsibility—on clubs to respect their financial obligations and creditors to pursue their rights with reasonable effort—preserves the integrity of football competitions and supports the sustainability of the sport’s financial ecosystem. It reflects a regulatory vision that prioritizes not only enforcement, but also ethical governance and procedural justice.

In conclusion, diligence is not merely a technical threshold; it is a dynamic and evolving legal standard that encapsulates the core values of FIFA’s dispute resolution system. It represents a commitment to procedural fairness, institutional accountability, and the equitable resolution of disputes in a highly globalized and commercially driven sporting environment. As CAS jurisprudence continues to develop, the standard of diligence will remain central to ensuring that international football remains not only competitive and financially viable, but also just and inclusive for all participants.

The new Article 21(5) of the FIFA Disciplinary Code marks a significant evolution in the regulation of creditor conduct in football-related financial enforcement. By introducing clear obligations for both debtors and creditors, and by defining negligence and its exceptions, the provision brings transparency, legal certainty, and procedural equity to a domain historically governed by fragmented practice.

It reflects a mature regulatory response to the challenges posed by cross-border insolvency, club restructuring, and procedural abuse, while still maintaining flexibility for vulnerable or disadvantaged creditors. Ultimately, Article 21(5) will serve to strengthen the integrity of FIFA’s disciplinary jurisdiction, promote responsible creditor engagement, and ensure that insolvency is not exploited as a shield against just financial obligations.

---