Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 January 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Theo van Seggelen (Netherlands), member
on the claim presented by the club,
Club A, country B
as Claimant
against the player,
Player C, country D
as Respondent I
and the club,
Club E, country D
as Respondent II
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 30 April 2009, the player from country D, Player C (hereinafter: player or
Respondent I), born on 8 February 1994, the player’s father and the club from
country D, Club E (hereinafter: Club E or Respondent II) concluded a contract
entitled “development contract in the language of country D” [free
translation: development contract] (hereinafter: development contract), and
an annex, both valid as of 1 July 2009 until 30 June 2012, which included an
extension option.
2.
The extension option reads as follows: “extract of the contract in the language
of country D“ [free translation: Club and player commit to continue this
contract with the current contractual terms for one more year (maximum two),
if the other party wishes to do so. Club and player must declare in writing if
they wish to exercise the option before 30 April of the year of the expiry of the
contract. If neither the club nor the player declares said will within the time
limit the contract ends on the date mentioned-above in point 2].
3.
According to the development contract, Club E undertook to pay to the player,
inter alia, the following amounts:
- EUR 250 as monthly salary for the season 2009/2010;
- EUR 300 as monthly salary for the seasons 2010/2011 and 2011/2012;
- EUR 400 as monthly salary for the season 2012/2013 in case the option is
exercised;
- EUR 150 monthly for transportation expenses.
In addition, the player was entitled to match bonuses depending on playing
time.
4.
On 30 April 2011, the player, the player’s parents, and the club from country B,
Club A, (hereinafter: Club A or Claimant), signed a document entitled
“Preliminary Agreement” (hereinafter: preliminary agreement), in accordance
with which the “Parties wishes to sign Professional Football Contract with the
Player in order to register him as Club A’s player before the Football
Federation of country B; beginning from 2012-2013 1st Transfer until
31.05.2017”.
5.
According to Art. 2 of the preliminary agreement, Club A undertook to pay to
the player the following amounts:
- EUR 320’000 in total for the season 2012/2013, whereby EUR 100,000 are
payable “in one month after signing of this agreement”, EUR 100,000 “in
June” and EUR 120,000 as salary in 12 instalments between June 2012 and
June 2013;
- EUR 144,000 as salary in 12 instalments during the season 2013/2014;
Club A, country B / Player C, country D / Club E, country D
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- EUR 168,000 as salary in 12 instalments during the season 2014/2015;
- EUR 192,000 as salary in 12 instalments during the season 2015/2016;
- EUR 216,000 as salary in 12 instalments during the season 2016/2017.
6.
According to Art. 3.1 of the preliminary agreement, the validity of said
agreement “shall end when the Professional Football Player’s Contract, which
will define the parties’ all rights and obligations, is registered to the Football
Federation of country B”.
7.
Additionally, Art. 3.3 of the preliminary agreement establishes that: “If the
Player would not sign the agreement which is going to be registered at
Football Federation of country B at the beginning of the 2012-2013 season
and/or signs another employment contract which will register him to another
Club, then the Player accepts and undertakes to pay 1.000.000.-Euro
(onemillion Euro) (The down payment which is going to be paid after signing
of this Preliminary Agreement is also included and this penalty clause is valid
only if this down payment is made) penalty clause and irrevocably declares
that this amount is not excessive.”
8.
Art. 4 of the preliminary agreement defines that: “This contract is in form of a
preliminary agreement, the remuneration which is undertaken to be paid in
this contract shall be valid only if the Player passes through a check-up and the
signature of Professional Football Player Contract in 4 copies to be submitted
and registered to Football Federation of country B”.
9.
On 2 May 2011, Club A and the players’ agent, Agent F (hereinafter: players’
agent), signed a document entitled “Standard contract for players’ agents in
the language of country D” [free translation: Standard contract for players’
agents] to negotiate a transfer of the player to Club A, including the following
clause: “extract of the contract in the language of country D” [free translation:
To be entitled to receive the commission it is sufficient that the talks and
negotiations were conducted by the players’ agent. It is no requirement that
the parties sign a professional footballers contract and that the player will be
registered with Club A].
10.
On an unknown date, the player and Club A signed a document entitled
“Contract” (hereinafter: Club A contract), valid as of 1 July 2012 until 31 May
2017, which includes the salary arrangements of the preliminary agreement
(cf. point I./5. above).
11.
The Club A contract includes, inter alia, the following clause: “In case the
player signs a contract in order to be registered in any other club before the 1 st
transfer period of 2012-2013 season or in this period, he unconditionally and
Club A, country B / Player C, country D / Club E, country D
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irrevocably accepts and agrees to pay a penal sum of 1.000.000.- € to Club A.
Moreover he also accepts and agrees that this is not an excessive penalty.”
12.
On 10 March 2012, the player and Club E concluded an employment contract
(hereinafter: Club E contract) valid as of 1 July 2012 until 30 June 2016.
13.
On 13 August 2012, Club E and the club from country D, Club G, concluded a
transfer agreement for the definitive transfer of the player. On the same date,
these two clubs also concluded a loan agreement, whereby the player was
loaned back from Club G to Club E as of 13 August 2012 until 31 December
2012, with an option to extend the loan until 30 June 2013.
14.
On 13 August 2012, the player signed a new employment contract with Club E,
valid as of 13 August 2012 until 30 June 2013, including a monthly salary of
EUR 250 plus bonuses as follows:
- EUR 2,500 for every victory;
- EUR 750 for every draw.
15.
On 13 August 2012, the player signed an employment contract with the club
from country D Club G, which was suspended for the period of the loan of the
player to Club E, valid as of 13 August 2012 until 30 June 2016, including a
monthly salary of EUR 35,000.
16.
On 4 July 2014, the player signed an employment contract with Club H, valid as
of 1 July 2014 until 30 June 2019, including the following monthly salaries:
- EUR 180,000 for the period of 1 July 2014 until 30 June 2016;
- EUR 200,000 for the period of 1 July 2016 until 30 June 2019.
Claim of Club A against the player and Club E:
17.
On 2 April 2013, Club A lodged a claim against the player and Club E in front
of FIFA for breach of contract without just cause and inducement to breach,
respectively, with the following requests:
- to order the player to refund EUR 100,000 corresponding to a “down
payment” made by Club A to the player on 2 June 2011, plus 5% interest p.a.
as of 2 June 2011;
- to order the player to pay EUR 1,000,000 corresponding to the “penalty
clause” agreed upon in the preliminary agreement and in the Club A
contract;
- to declare that Club E is jointly and severally liable for the payment;
- to impose “a six-months sporting sanction” on the player;
- to impose a ban on Club E to register players for two registration periods;
- to condemn both Respondents to bear the costs of the proceedings.
Club A, country B / Player C, country D / Club E, country D
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18.
In its arguments, Club A held that it was interested in signing the player and
that it was informed by the players’ agent that the player was playing as an
amateur for Club E. Subsequently, the player and Club A signed the
preliminary agreement and the Club A contract. On this occasion, Club A made
a “down payment” in the amount of EUR 100,000 to the player on 2 June
2011.
19.
According to Club A, in June 2012, it tried to make contact with the player in
order to finalize registration formalities, however, the player did not answer
its calls. Subsequently, the player declared he would not join Club A and he
signed a contract with the club from country D, Club G, instead.
20.
Club A argued that the player lost his interest in a transfer to Club A, even
though he had signed a contract with and received a “down payment” of EUR
100,000 from Club A.
21.
Moreover, Club A held that Club E induced the player to breach his contract
with Club A by offering him a new contract, allegedly on 16 December 2011.
The reply of the player:
22.
In his reply, the player requested that the claim of Club A be rejected.
23.
The player’s main argument is that the signed Club A “documents dated 30
April 2011” represent no valid and binding contracts.
24.
Regarding the development contract concluded with Club E, the player
pointed out that, initially, this contract expired on 30 June 2012, but that there
was an option for both parties to extend the validity of said contract.
According to the player, said option was exercised by Club E.
25.
Moreover, the player held that Club A never requested information about his
contractual situation and that after Club E exercised the aforementioned
option, the players’ agent informed Club A about his contractual situation. The
player pointed out that he was contractually bound to Club E and that Club A
was aware that it needed to negotiate a possible transfer to Club A with Club
E. According to the player, Club A never contacted Club E.
26.
In addition, the player purported that the wording of the players’ agent
contract, concluded on 2 May 2011, indicates that no valid and binding
employment contract was concluded between Club A and the player, since the
clause referring to the players agent’s remuneration literally excluded the
future completion of an employment contract (cf. point I./9. above). The player
Club A, country B / Player C, country D / Club E, country D
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argues that therefore the completion of such an employment contract must
have been uncertain in this moment and that thus Club A knew about the risk
to need to find an agreement with the current club of the player, i.e. Club E.
27.
Subsequently, the player stated that according to the “regulations of the
Football Association of country D in the language of country D” [free
translation: regulations of the Football Association of country D] it is a
requirement for the validity of a contract that future contracts are concluded
for the following season only and that therefore the “documents dated 30
April 2011” cannot represent a valid employment contract since they refer to
the season after the next one.
28.
Moreover, the player held that Club A infringed Art. 18 par. 2 and 3 of the
FIFA regulations by approaching the player more than 6 months in advance
and by trying to bind the player, who was a minor at the time, with a contract
for 5 years with a waiting period of 14 months.
29.
In this context, the player stressed that Club A acted in bad faith by lodging a
claim in front of FIFA based on an agreement that infringes the regulations of
FIFA.
30.
In continuation, the player pointed out that the penalty defined in the Club A
contract (cf. point I./11. above) cannot be applicable since, at least initially, the
player did not sign another contract with Club E, club with which he was
already bound by means of the development contract until 30 June 2013. In
this regard, the player stated that neither he nor Club E breached an
agreement with Club A, but that Club A tried to induce him to breach the
contract with Club E that which in force back then.
31.
Furthermore, the player denied the allegation that he was an amateur player
under the development contract. He referred to his player passport and to the
annex of the development contract, whereby his salary was defined, and
argued that he was a professional player.
32.
In addition, the player asserted that the amount predefined in the penalty
clause of the Club A contract is basically as high as the total remuneration
specified in the Club A contract and therefore clearly is disproportionate.
33.
Finally, the player stated that the “down payment” cannot be reclaimed since
it was included in the preliminary agreement and since Club A, with this
payment, induced a minor player, long before his contract expired, to an
“imprudent signature in the language of country D” [free translation:
imprudent signature].
Club A, country B / Player C, country D / Club E, country D
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The reply of Club E:
34.
In its reply, Club E requested that the claim of Club A be rejected.
35.
In this context, Club E denied that the player was an amateur player during the
period he was registered with Club E.
36.
Furthermore, Club E denied the allegation of Club A that it would have
concluded an employment contract with the player on 16 December 2011 and
explained that the relevant contracts with the player were signed on 30 June
2009, 10 March 2012 and on 13 August 2012.
37.
Moreover, Club E stated that it was not aware of any pre-contract allegedly
concluded between the player and Club A and about a “down-payment” paid
to the player by Club A. Club E argued only having heard of this issue in
August 2012 after media reports in the press of country B. In this respect, Club
E held that it sent a letter to Club A requesting if said reports were true.
According to Club E, Club A never answered its request.
38.
Club E further argued that Club A infringed Art. 18 par. 3 of the FIFA
regulations.
39.
In addition, Club E stated that Club A did not submit any evidence in support
of its allegations.
The replica of Club A:
40.
In its replica, Club A disputed both Respondents’ argumentation that the
player was a professional under the development contract since the income of
the player did not cover more than the player’s expenses.
41.
Moreover, Club A argued that it was aware of “the risk of not completing the
transfer” and that this was the reason to insert the “penalty clause”.
42.
Furthermore, Club A held that the preliminary agreement and the Club A
contract are legally binding and even if Club A “acted against the
Regulations”,”this would not affect the validity of the contracts”.
43.
In addition, Club A asserted that the player “did not properly answer our
claims” and “did not mention anything about the 100.000 Euro advance
payment”.
Club A, country B / Player C, country D / Club E, country D
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44.
Finally, Club A reiterated its position and stated that the player acted in bad
faith by signing a new contract with Club E on 10 March 2012 even though he
knew that he already signed “contracts” with Club A.
The duplica of the player:
45.
In his duplica, the player reiterated his position.
46.
In this context, the player insisted that he was a professional player under the
development contract since he was earning more than the expenses effectively
incurred.
47.
Furthermore, the player pointed out that Club A admitted having been aware
of “the risk of not completing the transfer”. Therefore, the player concluded
that Club A must have known that the player was not an amateur player and
that the transfer could fail without an agreement with Club E.
48.
Moreover, the player argued that if Club A was aware of “the risk of not
completing the transfer” the inserted penalty clause must be regarded as
“ineffective in the language of country D” [free translation: ineffective] and
“immoral in the language of country D” [free translation: immoral], since the
completion of the transfer was not in the power of the player but in the
power of the two clubs only, since the player was contractually bound to Club
E.
49.
In addition, the player submitted a witness statement of the players’ agent
that reads as follows: “extract of the statement in the language of country D“
[free translation: Back then I was involved in the talks between Club A and the
Player C. In this respect, I can confirm that Player C had a contract beyond
30.06.2012 with Club E and that I informed Club A about this fact and
especially about the necessity resulting thereof to talk and negotiate with Club
E about a transfer in order to allow a transfer on 01.07.2012. For me it was
clear and I articulated that to Club A, that without an agreement with Club E
[…] the possible transfer would and could certainly not take place].
50.
Further, the player pointed out that he had no other choice but to sign the
contract dated 10 March 2012 with Club E, since Club E wished to exercise the
option and therefore extend the development contract automatically until 30
June 2013.
51.
Finally, the player acknowledged receipt of the down payment of EUR 100,000,
but he argued that Club A cannot reclaim said amount since it knew about the
risk of the uncertain transfer and since this amount represents a “signing fee”
for the “preliminary agreement”. In this context, the player held that it would
Club A, country B / Player C, country D / Club E, country D
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have been the obligation of Club A, as the party that drafted the contract, to
insert a clause about a possible refund in case no employment contract would
be signed at a later stage.
52.
Despite having been invited to do so, Club E has not submitted its duplica.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to
FIFA on 2 April 2013. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par.
2 in combination with art. 22 lit. b of the Regulations on the Status and
Transfer of Players (edition 2015) the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a club from country
B, a player from country D and a club from country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2015), and considering that the present claim was lodged on 2
April 2013, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
Club A, country B / Player C, country D / Club E, country D
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5.
In this respect, the Chamber recalled that the Claimant and the Respondent I,
on 30 April 2011, signed the preliminary agreement valid as from the 2012-13
season until 31 May 2017 and, on an unknown date, the Club A contract, valid
as from 1 July 2012 until 31 May 2017. In addition, on 10 March 2012, the
Respondent I and the Respondent II signed an employment contract valid as
from 1 July 2012 until 30 June 2016.
6.
In view of the allegations and arguments presented by the parties involved in
the present matter, the Chamber underlined that in order to be able to
establish as to whether, as claimed by the Claimant, a breach of contract had
been committed by the Respondent I, it should first of all pronounce itself on
the issue of the validity of the relevant preliminary agreement dated 30 April
2011 and the undated Club A contract, which were submitted by the Claimant.
7.
In this respect, the DRC duly noted that whereas the Respondent I has not
contested that he signed the preliminary agreement and the Club A contract,
the Respondent I held that these documents cannot be considered valid
employment contracts due to various reasons that have been exposed herein
before.
8.
Having stated the aforementioned, the Chamber first wished to highlight that,
in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it should
contain the essentialia negotii of an employment contract, such as the parties
to the contract and their role, the duration of the employment relationship
and the remuneration payable by the employer to the employee.
9.
After careful study of the relevant documents , the Chamber concluded that all
such essential elements are included in the preliminary agreement and the
Club A contract, in particular, the facts that the contracts establish that the
Respondent I has to render his services as a player to the Claimant during a
fixed period of time, who, in exchange therefor, has to pay to the Respondent
I a monthly remuneration.
10.
In continuation, the DRC reverted to the argument of the Respondent I that
the contracts at stake are invalid, as the Claimant infringed the Regulations by
approaching him more than 6 months before the expiration of his contract
with Club E and by trying to bind him for more than 5 years including a
waiting period of 14 months. In this respect, the members of the Chamber
unanimously agreed that an infringement of art. 18 par. 3 of the Regulations
has no effect on the validity of employment contracts at issue. Consequently,
the Chamber concluded that the player’s respective argument is to be
dismissed.
Club A, country B / Player C, country D / Club E, country D
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11.
Likewise, the Chamber concurred that the argument of the Respondent I that
he was obliged to sign the employment contract with the Respondent II on 10
March 2012 must be rejected.
12.
On account of the above, the Chamber came to the firm conclusion that the
arguments of the Respondent I cannot be upheld and that the preliminary
agreement and the Club A contract signed by and between the Claimant and
the Respondent I were valid employment contracts.
13.
Having so found, the DRC continued its analysis and turned its attention to the
question of the alleged breach of contract without just cause by the
Respondent I.
14.
In this respect, the Chamber was eager to highlight that based on the parties’
respective statements and the documentation available on file, it was
undisputed that the Respondent I never joined the Claimant in order to offer
his services to the Claimant in accordance with the aforementioned
employment contracts. Also, it is undisputed that, on 10 March 2012, the
Respondent I signed an employment contract with the Respondent II covering
partially the same period of time as the employment contracts that the
Respondent I signed with the Claimant. By acting as such, the Chamber
concurred that the Respondent I had acted in breach of the employment
contracts concluded with the Claimant and is therefore to be held liable for
breach of contract without just cause.
15.
Given the above circumstances, the Chamber recalled that, according to art. 18
par. 5 of the Regulations, if a player enters into an employment contract with
different clubs for the same period of time, the provisions of Chapter IV of the
Regulations regarding the maintenance of contractual stability between
professionals and clubs shall apply.
16.
In continuation, the members of the Chamber referred to item 7. of the
“Definitions” section of the Regulations, which stipulates inter alia that the
protected period comprises “three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a
contract, where such contract is concluded after the 28th birthday of the
professional”. In this regard, the Dispute Resolution Chamber pointed out that
given the facts of the present case, the unjustified breach of contract by the
Respondent I had obviously occurred within the applicable protected period.
Club A, country B / Player C, country D / Club E, country D
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17.
Having stated the above, the members of the Chamber turned their attention
to the question of the consequences of such unjustified breach of contract
committed by the Respondent I during the protected period.
18.
In doing so, the Dispute Resolution Chamber first of all referred to the
provisions of art. 17 par. 1 of the Regulations, in accordance with which a
consequence of terminating a contract without just cause is the payment of
compensation by the party in breach to the counterparty. In this respect, the
members of the Chamber recalled that the Claimant’s claim includes a request
for compensation for breach of contract in the total amount of EUR 1,000,000
corresponding to the amount set in the preliminary agreement and the Club A
contract.
19.
Having recalled the aforementioned, the Chamber strongly affirmed, however,
that the particular circumstances surrounding the breach of contract by the
Respondent I in the present case had to be taken into consideration in order to
determine whether compensation was payable by the Respondent I and, in
joint liability, the Respondent II (cf. art. 17 par. 2 of the Regulations).
20.
In this regard, the Chamber observed that the Claimant asserted that it was
informed by the players’ agent that the player was an amateur under the
development contract with the Respondent II. The DRC further noted that the
Claimant acknowledged having relied on this statement and never mentioned
having contacted the Respondent II in order to assess the actual status of the
Respondent I, i.e. amateur or professional, and the contractual situation of the
player.
21.
In this context, the Chamber referred to art. 2 par. 2 of the Regulations, which
stipulates that “A professional is a player who has a written contract with a
club and is paid more for his footballing activity than the expenses he
effectively incurs. All other players are considered to be amateurs”.
22.
Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations
as well as the amounts payable to the player on the basis of the development
contract, the members of the Chamber unanimously concluded that it was
beyond a doubt that the player was in fact paid more for his footballing
activity than the expenses he effectively incurred. In this regard, the Chamber
was eager to emphasize that a player’s remuneration as per the criteria set out
in art. 2 par. 2 of the Regulations constitutes the decisive factor in the
determination of the status of the player and that the legal nature or the
designation of the contract is of no relevance in this regard. This approach has
been confirmed by the Court of Arbitration for Sport (CAS) in its decision CAS
XXXXXXXXXX, whereby the Panel also emphasized that the definition
contained in the mentioned provision is the only ground to establish a player’s
Club A, country B / Player C, country D / Club E, country D
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status. For the sake of completeness, the Chamber pointed out that according
to the said decision the classification of a player made by the association of his
club is not decisive to determine the status of a player. And, finally, that the
remuneration in question may well fall short of a living wage, but as long as it
exceeds the expenses effectively incurred by the player, the criterion of art. 2
of the Regulations is met.
23.
Equally, the Chamber highlighted that the second element contained in said
art. 2 par. 2 of the Regulations, i.e. the existence of a written contract, is met.
24.
On account of the above, the Chamber concurred that the player was in fact
registered as a professional with and contractually bound to the Respondent II
under the development contract.
25.
Having said this, the Chamber rejected the Claimant’s argument and terms of
the development concluded that prior to signing the preliminary agreement
and the Club A contract with the Respondent I, the Claimant had not taken
the necessary measures in order to establish whether or not the Respondent I
was still contractually bound to Respondent II. What is more, by acting as
stated above, the DRC deemed that the Claimant did not exercise the due
diligence in order to inform itself as to the Respondent I’s status and
contractual situation.
26.
In this respect, the members of the Chamber were eager to emphasise that
prior to starting the relevant negotiations and entering into an employment
contract with the Respondent I, in line with the stipulations set forth in art. 18
par. 3 of the Regulations, the Claimant should have contacted the Respondent
II.
27.
For the sake of completeness, the Chamber wished to highlight that if art. 18
par. 3 of the Regulations reads that a professional shall only be free to
conclude a contract with another club if his contract with his present club has
expired or is due to expire within six months, said particular provision may only
be seen as a right for the player and may by no means be understood as an
exoneration for a potential club from its duty of care consisting of contacting
in writing a player’s current club before entering into contractual negotiations
with a player.
28.
In light of the considerations mentioned above, the Chamber came to the
conclusion that the Claimant had clearly committed a fault by entering into an
employment contract with the Respondent I, who still had a valid contract
with the Respondent II until at least 30 June 2012, without having previously
contacted his current club, and, consequently, had acted in violation of the
Regulations.
Club A, country B / Player C, country D / Club E, country D
13/16
29.
Having stated the above, the members of the Chamber held that, in
accordance with the legal principle of nemo auditur propriam turpitudinem
allegans, it could not enforce the Claimant’s claim for compensation for breach
of contract by the Respondent I, since, as established above, the Claimant was
itself at fault by signing the relevant employment contracts with the
Respondent I. In other words, the Chamber concluded that due to the
Claimant’s own fault, i.e. the disrespect of the Regulations, as established
above, it could not be entitled to receive compensation in the case at hand.
The Chamber highlighted that this is in line with existing jurisprudence of the
Chamber.
30.
Therefore, the Dispute Resolution Chamber decided that the Claimant’s claim
for compensation for breach of contract against the Respondent I and, in joint
liability, the Respondent II, must be rejected.
31.
Any other argument raised by the parties in relation to the payment of
compensation for breach of contract does, therefore, not need to be further
addressed.
32.
In continuation, the DRC addressed the Claimant’s request for reimbursement
of the payment in the amount of EUR 100,000 made to the Respondent I on
the basis of the preliminary agreement. In the light of the Claimant’s abovementioned infringement of the Regulations as well as the Claimant’s
awareness of the risk that the transfer of the player to the Claimant might not
be completed in combination with the lack of a relevant reimbursement clause
in the preliminary agreement, the Chamber decided to reject this request of
the Claimant.
33.
Having established the above, the Chamber focused its attention on the
further consequences of the breach of contract by the Respondent I within the
protected period, and in this respect, addressed the question of sporting
sanctions against the Respondent I in accordance with art. 17 par. 3 of the
Regulations. The cited provision stipulates inter alia that sporting sanctions
shall be imposed on any player found to be in breach of contract during the
protected period. Furthermore, the Chamber recalled, once again, that art. 18
par. 5 of the Regulations, which deals with the consequences of entering into
more than one contract covering the same time period, clearly states that a
player shall be subject to the provisions of Chapter IV of the Regulations
regarding the maintenance of contractual stability between professionals and
clubs.
34.
With regard to the quoted provision, the Chamber emphasised that a
suspension of four months on a player’s eligibility to participate in official
Club A, country B / Player C, country D / Club E, country D
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matches is the minimum sporting sanction that can be imposed for breach of
contract during the protected period. This sanction, according to the explicit
wording of the relevant provision, can be extended in case of aggravating
circumstances. In other words, the Regulations intend to guarantee a
restriction on the player’s eligibility of four months as the minimum sanction.
Therefore, the relevant provision does not provide the possibility for the
deciding body to reduce the sanction under the fixed minimum duration in
case of mitigating circumstances.
35.
In this regard, the Dispute Resolution Chamber recalled that the breach of
contract by the Respondent I had occurred during the applicable protected
period. Consequently, the Chamber decided that, by virtue of art. 17 par. 3 of
the Regulations, the Respondent I shall be sanctioned with a restriction of four
months on his eligibility to participate in official matches.
36.
In continuation, the Chamber agreed that, since the Respondent II held having
been unaware of the preliminary agreement and/or the Club A contract before
August 2012 and given the fact that there is no evidence on file indicating the
contrary, in this context the DRC also referred to the fact that the Claimant
had not performed the required due diligence when approaching the
Respondent I, the issue of inducement as regards the Respondent II is not to be
further considered.
37.
The Chamber concluded its deliberations in the present matter by establishing that
any further claims of the Claimant are rejected.
Club A, country B / Player C, country D / Club E, country D
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
2.
The Respondent I, Player C, is found to have terminated the employment
contract with the Claimant without just cause within the protected period.
3.
A restriction of four months on his eligibility to play in official matches is
imposed on the Respondent I. This sanction applies with immediate effect as of
the date of notification of the present decision. The sporting sanctions shall
remain suspended in the period between the last official match of the season
and the first official match of the next season, in both cases including national
cups and international championships for clubs.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne, Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Club A, country B / Player C, country D / Club E, country D
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