The Camilo Affair, the Legality, and the Morality

It remains to be seen whether Camilo’s bolting on his contract will be found legal. But we can tell right now whether we should find it moral.

I’ll admit it, I’m surprised. I thought it was all RUMMOR and hot air but no, it looks like Camilo is off to Mexico after all. ESPN’s Paty Fernández tweeted a photo of Camilo proudly holding his new Querétaro shirtafter, as Marc Weber pointed out, Camilo’s agent Tweeted Fernández from Querétaro asking if they could talk

We don’t know for sure what’s happened, but it looks like Camilo has broken his contract, on which the Whitecaps already announced they were exercising their option[4], and has fled for the border like many a crook before.

There have been questions raised about the legality of team options in soccer. If Camilo is going to try and pull a Jean-Marc Bosman and rewrite contract practice then he’s a brave man; team options are so deeply entrenched a part of MLS that one doubts they’d roll over at a challenge. Yet, and as a Whitecaps fan I hate to admit it, Camilo does have a leg to stand on. There have been issues with “unilateral options” in soccer before, most of which went the player’s way. I am, to an almost unbelievable extent, not a lawyer, but I tried to do some reading. I welcome informed criticism on all these points.

One volume I found partially available online, CAS and Football: Landmark Cases edited by Alexander Wild, a lawyer at the German firm Dr. Falkenstein & Partner, gives some details. I’m going off the Google Books preview here; I hope you’ll understand if I don’t drop $112 for your sake. The authors, at least in Chapter 5 pertaining to “unilateral options”, seem biased in favour of players and I can’t vouch for their accuracy, but they look honest and provide good factual information with informed analysis. The Court of Arbitration of Sport (CAS) “has been relatively hostile to [unilateral option] clauses, though it has not ruled them out completely.”[5] “No unilateral option had ever been declared absolutely void under all circumstances.”[6]. In the case of Sotirios Kyrgiakos of Pananthinaikos, for example, the CAS ruled in Pananthinaikos’s favour, saying that Kyrgiakos’s team option was valid. Kyrgiakos received a significant pay increase in his option year, accepted Pananthinaikos exercising an earlier team option, and had only complained the next time when he had better career prospects. This is reportedly the only case in which the CAS and FIFA Dispute Resolution Committee both ruled in favour of upholding a unilateral option[7]. But, of course, that ignores any unilateral options which never got that far, and isn’t wholly consistent with the Almirón case, discussed below.

There are a few cases of unilateral options being rejected: FIFPro lists some on their website[8], though they obviously have a very vested interest and their seemingly-blanket assurance that “this case is not valid” seems at odds with precedent. The most famous, and most clear cut, example, is the so-called “Bueno-Rodríguez case”. This refers to two Uruguayan players, Carlos Bueno and Cristian Rodríguez, under contract to Club Atlético Peñarol. Peñarol attempted to exercise an option on the two players who wished for higher pay, the players refused to accept this, and after rulings by the FIFA DRC and the CAS the players were found to be free agents (Bueno now plays in Argentina, Rodríguez with Atlético Madrid).

The similarities between the Bueno-Rodríguez case and Camilo’s situation are more than skin deep. According to Wild et al the Uruguayan Football Player’s Statute at the time provided that a contract “may be extended by the club until the second 31 December following the date of termination of the initial contract.”[9]. Such two-year team options, often combined with two-year standard deals and known as “2+2 contracts”, are commonplace in MLS. Bueno and Rodríguez were entitled to a raise corresponding to the rate of inflation; since MLS is so secretive we don’t know what Camilo’s raise would have been in his option year, but if it was marginal that’s a bad sign for MLS. Bueno and Rodríguez refused to report to Peñarol, disputing the validity of the unilateral options. The pair were suspended and put on a list of “rebellious” players but Paris Saint-Germain signed them months later, insisting the pair were free agents[10]. The authorities, eventually, agreed, and Peñarol received no compensation. The Uruguayan player’s statute has now been modified[11]. Camilo is still in his off-season so hadn’t walked out as Bruno and Rodríguez did. Therefore he hasn’t been placed on any “rebellious” list, which was a factor against Peñarol in the Bueno-Rodríguez case[12] but ultimately a side issue. In the words of a later paper by Diego F.R. Compaire, Gerardo Planás, and Stefan-Eric Wildemann in 2009, a masters thesis which received an award from FIFA, “unilateral options are in general terms not recognized by FIFA and the Court of Arbitration for Sport unless they incorporate some specific elements which work for the clear and acceptable advantage of the player.”[13].

For example, in the case of Javier Alejandro Almirón vs. Club Atlético Janus, Almirón not only received a 15% per year raise in his contract if the unilateral team option was exercised, he was paid $18,000 in exchange for the club having the right of unilateral extension. When Almirón attempted to break his contract with Janus and join Spain’s Polideportivo Ejido SAD, the FIFA DRC found in favour of Janus and awarded the club $68,000 compensation, as it was clear Almirón knew and understood that he had given Janus the right to extend his contract unilaterally and accepted compensation for that right[14]. Even in this case, Almirón did not return to Janus (which is perhaps why FIFPro lists the Almirón case as an example of an invalid unilateral option; like I said, they have a strong interest in the matter).

So did Camilo receive “specific elements which work for the clear and acceptable advantage of the player” in his contract? If Camilo’s option years were at or near the same pay as his initial contract, MLS might be in trouble under the Bueno-Rodríguez precedent and other, less closely-related cases. But if he received a big raise then the Almirón and Kyrgiakos precedents look promising, though not clear-cut, and it’s unlikely in any event Camilo will ever wear a Whitecaps kit again.

Above all this stands the sheer exceptionality of MLS: it is a soccer league like no other in the world. There is a widely accepted principle in FIFA contract precedent that their rulings apply internationally, even in the face of domestic contract law: this is called lex sportiva. Yet MLS is a very odd bear, with many aspects (players signing contracts with the league rather than teams, drafting, salary cap and contract restrictions, non-guaranteed contracts, etc. etc. ad nauseum) completely at odds with world practice. MLS has a certified players union and signed collective bargaining agreements with the MLSPU in 2004 and 2010. This is, to my knowledge, unique in world soccer, though in line with other North American professional sports, and all told MLS’s characteristics can’t help but mean an unpredictable result.

If Camilo winds up knocking down the whole rotten structure of MLS contract practice then some good will come of this sordid affair after all. To my knowledge MLS’s contract practices have not yet been challenged in arbitration. But that’s a massive “if”, and by keeping quiet until he could bolt in the night, Camilo has done the Whitecaps a serious injury when he should have been negotiating in good faith.

Possibly the Whitecaps, or somebody at the league, failed to exercise Camilo’s team option correctly. Such things do happen: see the 2009 NHL example where Chicago Blackhawks general manager Dale Tallon forgot to send qualifying offers to his marquee restricted free agents[15]. In that case, because the NHL is a cartel, the Blackhawks more-or-less got away with Tallon’s potentially-franchise-killing blunder. MLS is not so lucky and if the Whitecaps or the league screwed this up then we can expect FIFA to tell them where to shove that contract of theirs. Absent any evidence that is the case, though, any idiotic forum members or Twitterers who blame the Whitecaps for having a star player under contract and not preventing him from dishonouring it with magic mind control rays are invited to stick their faces into a wood chipper.

If things are all as they appear to be then, as a fan, regardless of all legal aspects, I would no longer piss on Camilo if he was on fire. Whether he signed his contract in bad faith, or simply decided to break his word to his club, his fans, and his former comrades when he saw a financial advantage is irrelevant: it is the act of a scoundrel. The Whitecaps have problems, and I’ve written about them at some length. The Alain Rochat debacle, to name just one, is a stain on Whitecaps honour that will not be erased for some time. They need to straighten themselves out in more ways than one; I’m not so naïve to deny that. But that would never excuse Camilo’s lies. Integrity is not optional. A decent human being is not honest only to people he likes or when he isn’t hurt by it. The fact that Camilo is receiving a big payday for his deceit is not justification, it’s further condemnation: in any walk of life we scorn people who lie, dissemble, and betray just to make millions and sports should be no exception. It’s a disgusting attitude from a player who, frankly, I expected better from. If Camilo’s six-digit salary wasn’t enough for him then he was welcome to ask for a transfer or to renegotiate his contract, as he did before the 2012 season. Instead he bolted like a thief in the night, which is an alarmingly appropriate simile.

Suffice to say that, even if legal muscle comes down entirely in the Whitecaps’ favour and Camilo is forced to play out his contract I hope Vancouver pays him to sit at home and eat cheeseburgers, because I don’t want people like that on my team.

At least we don’t have to deal with the argument over whether he should play for Canada anymore.