HSV professional Mario Vuskovic, who tested positive for Epo, faces serious consequences. What options does the Croatian have? Can Hamburger SV hope for compensation? And how long does it all take? Answers to the sports law questions in the “Vuskovic case”.
What options does the Vuskovic side have?
Mario Vuskovic, who maintains his innocence, has hired several lawyers who, in principle, have two defense options in the pending DFB sports court proceedings.
On the one hand there would be an “attack” on the test procedure. If the Vuskovic side can prove that a procedural or formal error occurred during the sampling and/or analysis, an acquittal would be possible.
Secondly, the legal counsel can try to prove that the 21-year-old did not intentionally, i.e. unknowingly, take the doping substance. This could at least reduce the penalty, which is usually four years.
However, when it comes to Epo, which is administered intravenously or by injection into the skin, doping experts are not aware of any history of mixing the substance with food or unknowingly ingesting it with medications used to treat any medical condition.
In any case, the burden of proof lies with the athlete.
What options does HSV have?
The club is currently operating on two tracks. HSV claims to support Vuskovic, but has also sought expert advice itself.
If Vuskovic is convicted by the DFB, the second division soccer club can terminate the Croatian’s contract, which runs until June 30, 2025, without notice. In terms of sports law, the defender would have canceled his contract “without good reason”, i.e. broken it. In this way, HSV could initially save the defender’s salary.
Could HSV get compensation?
According to German law, the club’s options under civil law are not very promising, but the FIFA regulations offer a starting point under sports law.
Article 17 of the “Regulations on the Status and Transfer of Players” stipulates that “the defaulting party is obliged to pay compensation”. Unless otherwise contractually agreed. This also includes “the amount of fees and expenses for which the former club has paid”.
HSV could therefore file a lawsuit against Vuskovic with FIFA and demand compensation for the transfer fee paid. The amount of damage to the club would be based on FIFA law and corresponding judgments of the International Court of Arbitration for Sport CAS (the last instance of sports law) based on the transfer fee that has not yet been amortized. For the calculation, the transfer fee is spread over the entire contract period.
In March 2022, HSV Vuskovic signed Hajduk Split after an initial loan, gave the Croatian a three-year contract until 2025 and, according to media reports, paid a transfer fee of around three million euros. In the event of a contract termination by HSV after Vuskovic’s probable conviction and suspension by the DFB in January 2023, two and a half years would not have paid off – i.e. around 2.5 million euros of the transfer fee.
The catch: If HSV wins millions in damages – possibly also before the CAS, where the proceedings would end up in the event of a Vuskovic objection – it is anyone’s guess whether the Croatian would then be financially able to pay off the club.
Are there any comparable examples?
In a way yes. In October 2004, Chelsea FC had released Adrian Mutu and sued for damages. The Romanian tested positive for cocaine (a doping offense) and was banned for seven months.
It was not until 2003 that Chelsea signed the exceptional kicker for around 20 million euros from AC Parma. FIFA upheld the English Premier League club’s lawsuit and ordered Mutu to pay 17.2 million euros in damages for breach of contract.
The Romanian resisted the verdict for years through all instances. However, the International Sports Court, the Swiss Federal Supreme Court as the CAS’s appeals chamber and, in 2018, even the European Court of Human Rights in Strasbourg (ECtHR) rejected Mutu’s appeal.
However, it is unclear whether Chelsea have received money from Mutu so far or whether both parties have reached an out-of-court settlement.
Could HSV also get compensation for lost resale?
Theoretically this is also possible. The so-called “positive interest” can be set in court. All benefits that the contracting party would have had if the contract had been properly executed are recorded. In Vuskovic’s case, it would be about what the club could have earned if the player hadn’t been infringed on a resale.
However, only specific offers, if possible in writing, would be legally binding. It is documented that the defender has aroused the desires of other clubs through his good performances. It is questionable whether HSV already had a correspondingly concrete million-dollar offer on the table before Vuskovic’s positive A sample became public in mid-November.
Even if it were, it would also be questionable whether the court would possibly still accept written offers from July 2022.
How long can the whole “Vuskovic case” and the proceedings last?
A possible compensation procedure at FIFA lasts around six months at best. If Vuskovic were to appeal to the CAS, the review of the judgment there should take a good year. At the International Sports Court, a panel of three judges would take care of the case – one each from HSV, the player and CAS. The verdicts are usually unanimous.
In this way, years quickly come together before the last word is spoken. In the case of Adrian Mutu, 14 years passed between Chelsea FC’s FIFA complaint and the European Court of Justice’s final verdict.
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Sports current | 05.01.2023 | 09:17 am
