I ask for proof because the more I look for information, the more I find saying that you are wrong. The Royal Decree states that if the player does terminate his contract that the club will be owed compensation, and that in cases where the compensation level is not established (ie. if there is no buy-out clause) the Spanish labour courts will decide on the amount. That level of compensation will mostly be based on the wage the player was getting and how long is left on his contract, which will generally be much lower than what the buy-out clauses that are used. The Royal Decree is not that the buy-out clause is mandatory.
https://sennferrero.com/wp-content/...15-Special-Report-Football-and-Identities.pdf
There is a misconception that buy-out clauses are mandatory in Spain. As a result of recent decisions both at the national and international levels, their content has been subject to interpretation, making clear their origin, legal nature and practical effects.
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The first idea is that the Royal Decree does not impose or mandate the insertion of these buy-out clauses in employment contracts - rather, clubs (as the main employers in these circumstances) may elect to insert such clauses in employment contracts in agreement (pacta sunt servanda) with the player (the employee), for example, when they wish to have certainty as to the sum payable should the athlete elect to transfer to another club (i.e. without the need to refer to the Spanish Labour Court), what would also imply a delay on the procedure. The Royal Decree clearly establishes that “in the absence of an agreement in this regard, it shall be established by a body with jurisdiction in labour matters…”. Thus, the Royal Decree admits the possibility of an employment contract being valid too without this clause.
There is a misconception that buy-out clauses are mandatory in Spain. As a result of recent decisions both at the national and international levels, their content has been subject to interpretation, making clear their origin, legal nature and practical effects.
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The first idea is that the Royal Decree does not impose or mandate the insertion of these buy-out clauses in employment contracts - rather, clubs (as the main employers in these circumstances) may elect to insert such clauses in employment contracts in agreement (pacta sunt servanda) with the player (the employee), for example, when they wish to have certainty as to the sum payable should the athlete elect to transfer to another club (i.e. without the need to refer to the Spanish Labour Court), what would also imply a delay on the procedure. The Royal Decree clearly establishes that “in the absence of an agreement in this regard, it shall be established by a body with jurisdiction in labour matters…”. Thus, the Royal Decree admits the possibility of an employment contract being valid too without this clause.
https://www.ruizcrespo.com/wp-content/uploads/2019/01/ruizcrespo-noticia-20190103-abogado-GSLTR9.pdf
“The parties may, however, stipulate in the contract the amount that the player shall pay to the club as compensation in order to unilaterally terminate the contract (a so-called buyout clause). The advantage of this clause is that the parties mutually agree on the amount at the very beginning and fix this in the contract. By paying this amount to the club, the player is entitled to unilaterally terminate the employment contract. With this buyout clause, the parties agree to give the player the opportunity to cancel the contract at any moment and without a valid reason, i.e. also during the protected period, and as such, no sporting sanctions may be imposed on the player as a result of the premature termination.”
The existence of the Spanish buy-out clause, or “cláusula de rescission”, is established by Real Decreto 1006/1985 on the Special Labour Relationship of Players, where art. 16 determines that where a player unilaterally terminates a contract the pre-existing club will be owed compensation. The Real Decreto goes on to say that, in cases where compensation is not established, then the ordinary Spanish labour courts shall retain jurisdiction in order to impose a quantum payable to the previous club.
As a result of this federal labour law, it has since become standard practice for clubs and players to insert such a clause into the employment contract. This gives clubs the certainty of a compensatory amount while it enshrines the fundamental right of an employee to leave his current employer for a new one. It is clear that this standard practice is a reaction to the uncertainty faced when a labour court judge, without specific experience in the football world, could be called upon to assign a value for this compensatory amount.
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This is important within the context of the discussion of buy-out clauses. The club may wish to set the compensatory amount exceedingly high in order to protect its “asset”. An exceedingly high and prohibitive amount would provide a disincentive for prospective clubs from poaching talent.
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A competing interest to the club’s is the player’s interest in ensuring that the compensatory amount is not too high so that if he wishes to leave his existing employer the amount would not be prohibitive. This, naturally, is obvious.
A difficulty arises, however, when an agent is negotiating on behalf of the player. Football agents, now referred to as intermediaries, are often paid on a commission basis calculated as a percentage of the amount that is paid for the player’s services. It would appear that the agent is presented with a conflict of interest where it may serve the player best, without considering the financial interests of the agent, to have this compensatory amount set as low as possible. The negotiation of the compensatory amount presents an interesting dynamic, where often agents will promise to give a portion of the commission back to the player, in order to ensure the player may be able to benefit from the insertion of an excessive compensatory amount.
“The parties may, however, stipulate in the contract the amount that the player shall pay to the club as compensation in order to unilaterally terminate the contract (a so-called buyout clause). The advantage of this clause is that the parties mutually agree on the amount at the very beginning and fix this in the contract. By paying this amount to the club, the player is entitled to unilaterally terminate the employment contract. With this buyout clause, the parties agree to give the player the opportunity to cancel the contract at any moment and without a valid reason, i.e. also during the protected period, and as such, no sporting sanctions may be imposed on the player as a result of the premature termination.”
The existence of the Spanish buy-out clause, or “cláusula de rescission”, is established by Real Decreto 1006/1985 on the Special Labour Relationship of Players, where art. 16 determines that where a player unilaterally terminates a contract the pre-existing club will be owed compensation. The Real Decreto goes on to say that, in cases where compensation is not established, then the ordinary Spanish labour courts shall retain jurisdiction in order to impose a quantum payable to the previous club.
As a result of this federal labour law, it has since become standard practice for clubs and players to insert such a clause into the employment contract. This gives clubs the certainty of a compensatory amount while it enshrines the fundamental right of an employee to leave his current employer for a new one. It is clear that this standard practice is a reaction to the uncertainty faced when a labour court judge, without specific experience in the football world, could be called upon to assign a value for this compensatory amount.
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This is important within the context of the discussion of buy-out clauses. The club may wish to set the compensatory amount exceedingly high in order to protect its “asset”. An exceedingly high and prohibitive amount would provide a disincentive for prospective clubs from poaching talent.
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A competing interest to the club’s is the player’s interest in ensuring that the compensatory amount is not too high so that if he wishes to leave his existing employer the amount would not be prohibitive. This, naturally, is obvious.
A difficulty arises, however, when an agent is negotiating on behalf of the player. Football agents, now referred to as intermediaries, are often paid on a commission basis calculated as a percentage of the amount that is paid for the player’s services. It would appear that the agent is presented with a conflict of interest where it may serve the player best, without considering the financial interests of the agent, to have this compensatory amount set as low as possible. The negotiation of the compensatory amount presents an interesting dynamic, where often agents will promise to give a portion of the commission back to the player, in order to ensure the player may be able to benefit from the insertion of an excessive compensatory amount.
Two papers from different Spanish sports lawyers, stating that a) buy-out clauses are not mandatory, and that b) the figure in the buy-out clause is decided in negotiation between the club and the player (and his agent). They are probably the two most legitimate sources I found, but there were numerous others that said the same thing.
The super high buy-out clauses are for players who are extremely happy where they are AND who are getting paid accordingly. To put it simply, they already know they are exactly where they want to be and I'm sure the club boosts their wages up a bit extra for them to agree to the clause. Why wouldn't the players agree to that extra money when they have absolutely no intention of leaving anyway? The way they look at it the only way they might want to leave is if things are going badly, in which case the club themselves will realistically not be holding out for the super high fee in the clause anyway.
As for your last sentence saying that players would refuse to sign a contract if they had to agree to it so therefore they it HAS to be only the club deciding for themselves, that's like saying why doesn't every player in England demand a £10 release clause in their contract. In the real world any player that won't agree to having a buy-out clause (or insists on a massively under-valued one) won't be signed by a Spanish club. Or if they are they would be on absolutely tiny wages. Therefore all players will have a buy-out clause, and in the vast majority of cases I presume it will be a bit above their market value but not excessively so. The higher above their market value the clause is, the higher wage the player and his agent will demand (if they even agree at all).
So please, if you have proof of the opposite then please share. If I'm wrong I would actually like to know. But the more in depth I search the more I find stating that I and the other posters that responded to you are right.
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