Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the claim presented by the club,
Club A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 January 2008, the club from country B, Club A and the club from country E,
Club F, concluded a loan agreement regarding the loan of the player from
country D, Player X (hereinafter: the player) for the period from 1 January 2008
until 30 June 2008 for a loan compensation of USD 250,000.
2.
According to Club A, it then entered into an employment contract with the
player valid from 3 January 2008 until 30 June 2008.
3.
Art. 8.1 of the schedule 2 of the contract provided for a weekly remuneration of
15,000. According to art. 8.3.1 of the schedule 2 of the contract, the player was
also entitled to receive a bonus of 5,000 “when selected in the “starting eleven”
of a Premier League match” and a bonus of 3,500 “when selected as a
nominated substitute who takes to the field of play in a Premier League match”.
Furthermore, the parties agreed in art. 10 of the schedule 2 of the contract that
the player should receive, until 18 March 2008, 1,500 per month as
“accommodation / car allowance”, as well as a flight allowance of 4,000.
4.
On 17 January 2008, Club A lodged a complaint before FIFA against the player
and the club from country D, Club C, claiming that the player, induced by Club C,
unilaterally breached the contract he had signed with Club A without just cause.
5.
In this respect, Club A held that on 3 January 2008 it received an email of the
player’s representative informing Club A that the player decided not to follow
the contract, but to join Club C. Furthermore, Club A provided FIFA with a
communication of Club F dated 14 January 2008, by means of which it assured
having tried to convince the player to register with the club from country B,
however, without success. Therefore, Club F allegedly cancelled its own
employment contract with the player.
6.
On 15 June 2011, the Dispute Resolution Chamber (DRC) concluded that the
player terminated the contract without just cause and held that the player had to
pay Club A compensation for breach of contract in the amount of 400,000 and
that Club C was jointly and severally liable for the aforementioned payment.
7.
On 31 August 2012, the player lodged an appeal against the decision of the DRC
in front of the Court of Arbitration for Sport (CAS), which procedure was
eventually terminated.
8.
Also on 31 August 2012, Club C lodged an appeal against the decision of the DRC
in front of CAS.
Club A, from country B / Club C, from country D
Page 2 of 8
9.
On 20 November 2013, CAS set aside the decision of the DRC and referred the
complete file back to the DRC since the Football Association from country D
confirmed to CAS that, despite the instructions of the FIFA administration, it had
failed to forward Club A’s claim to Club C. As such, Club C’s right to be heard had
been violated, reason for which CAS considered the entire DRC proceedings null
and void.
10.
Club A subsequently appealed the CAS award in front of the Swiss Federal
Tribunal.
11.
On 28 August 2014, the Swiss Federal Tribunal concluded that CAS had erred in
deciding to annul the part of the DRC decision between Club A and the player, as
this part had become final and binding since the player had not proceeded with
his appeal of the DRC decision.
12.
On 10 October 2014, Club A requested the reopening of the DRC proceedings to
determine Club C’s liability in the matter. Club A explained that its position
remained unchanged from the previous proceedings, requesting the DRC to
uphold its previous findings and confirm that Club C is jointly and severally liable
to compensate the club as a result of the player’s breach of contract.
13.
Nevertheless, Club A claimed that the DRC is not limited to awarding the same
compensation as previously awarded. Club A held that it was entitled to the
amount of 1,647,639.18, in particular, taking into account the replacement costs
of the player. In the alternative, Club A requested that Club C would be jointly
and severally liable for the payment of the amount of 400,000 as well as for the
interest on any sum of compensation as from the player’s breach in January 2008
until the effective payment. Finally, Club A requested legal costs.
14.
In its reply, Club C firstly stressed that in accordance with the decision of the
Swiss Federal Tribunal, art. 17 of the Regulations “carries a joinder of codefendants”. Hence, in the matter against Club C, the DRC can reach a
completely different decision to the one previously taken against the player as
the DRC must assess again all the evidence, facts and arguments.
15.
As to the substance, Club C claimed that no contract was ever concluded between
the player and Club A, since the latter never provided the former with a
complete copy of said contract.
16.
Furthermore, Club C asserted that even if it was concluded that the player was
negligent by signing an illegible and incomplete document, said negligence
cannot lead to the assumption that a contract was concluded between the
parties when it did not contain the essential requirements needed in order for a
contract to exist.
Club A, from country B / Club C, from country D
Page 3 of 8
17.
In addition, Club C claimed that the amount the player was condemned to pay is
arbitrary and has no legal or factual basis.
18.
Furthermore, Club C alleged that when referring to art. 17 par. 2 of the
Regulations, the first registration must be taken into account. In this line of
reasoning, Club C argued that the player’s new club is jointly and severally liable
to pay the relevant compensation to the player’s former club and emphasised
that, according to the Commentary on the Regulations, any compensation
payable by the new club is only payable to the former club of the player. In this
framework, Club C asserted that Club F, and not Club A, is the player’s former
club since the player was never registered with Club A.
19.
Club C further alleged that any other interpretation would go against the
objectives of the Regulations, which is to protect the principle of contractual
stability. In this respect, Club C asserted that a different interpretation would
mean that if a player signs many contracts and is then transferred, the new club
would be held jointly and severally liable for all the contracts that the player
signed.
20.
Finally, Club C stressed that the contract between Club A and the player was
concluded on 3 January 2008 and that on 14 January 2008, Club F and the player
mutually terminated their labor relationship. On 19 January 2008, Club C and the
player concluded an employment contract and therefore, in any case, the player’s
last contract before joining Club C was the one signed with Club F and not with
Club A.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or DRC) referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension.
2.
Furthermore, the Chamber referred to the previous decision of the DRC rendered
on 15 June 2011 and concluded that the 2008 edition of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations), is applicable to the
matter at hand as to the substance.
3.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started
Club A, from country B / Club C, from country D
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by acknowledging the above-mentioned facts, the documentation contained in
the file as well as the decision rendered by the DRC on 15 June 2011. 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.
4.
In this respect, the Chamber acknowledged that Club A requested the DRC to
uphold its previous findings and to confirm that Club C is jointly and severally
liable to compensate it as a result of the player’s breach of contract. In this
respect, Club A claimed that the DRC is not limited to awarding the same
compensation as previously awarded, claiming an amount for breach of contract
of 1,647,639.18. In the alternative, Club A requested that Club C would be held
jointly and severally liable for the payment of the amount of 400,000, for the
payment of interest and, in addition, for the payment of its legal costs.
5.
The Chamber equally acknowledged that Club C, in its reply, basically put forward
two arguments why it should not be held liable for the payment of any amount: i)
the player did not terminate a contract without just cause, since there was no
contract in existence between the player and Club A, and ii) even if there was a
contract in existence between the player and Club A, Club C cannot be held jointly
and severally liable for the termination of such contract by the player, since Club
A was not the player’s former club, therewith also implying that Club C was not
the player’s new club in the sense of art. 17 par. 2 of the Regulations.
6.
In relation to Club C’s first argument, the members of the DRC referred in full to
the previous decision rendered by the DRC on 15 June 2011 and did not see any
reason to differ from the conclusion reached in said decision. The Chamber
concurred that Club C had not provided any new argumentation or
documentation that would justify a different conclusion than the one reached by
the members of the DRC on 15 June 2011. As a result, the Chamber fully endorsed
the conclusion that Club A and the player had concluded a valid employment
contract for the period from 3 January 2008 until 30 June 2008 and that, by not
joining Club A and by entering into an employment contract with Club C, the
player had terminated his employment contract with Club A without just cause. In
view of the foregoing, the Chamber decided to reject the first argument of Club
C.
7.
Following the same reasoning, the Chamber determined that the request of Club
A for a higher amount of compensation for breach of contract is rejected. Again
referring in full to the reasoning of the Chamber on 15 June 2011, the members
of the DRC held that no new elements had been provided which would justify
another conclusion in relation to the amount of compensation to be awarded to
Club A. In view of the foregoing, the Chamber agreed that the sum of 400,000 is
Club A, from country B / Club C, from country D
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the appropriate and justified amount of compensation for breach of contract
without just cause to be awarded to Club A.
8.
In continuation, the Chamber analysed the argumentation of Club C in relation to
Chapter IV of the Regulations.
9.
In this respect, the Chamber recalled that art. 17 par. 2 of the Regulations reads as
follows: “Entitlement to compensation cannot be assigned to a third party. If a
professional is required to pay compensation, the professional and his new club
shall be jointly and severally liable for its payment. The amount may be stipulated
in the contract or agreed between the parties.”
10.
With due consideration to the above, and in accordance with the unambiguous
content of art. 17 par. 2 of the Regulations, the Chamber reiterated that a
player’s new club shall be jointly and severally liable for the payment of
compensation if a player is required to pay such compensation and underlined
that the joint liability of the player’s new club is independent from the question
as to whether the new club has committed an inducement to the contractual
breach. This conclusion is in line with the well-established jurisprudence of the
Chamber and has been repeatedly confirmed by CAS.
11.
In this context, the Chamber observed that Club C argued that Club A was not the
player’s former club, since the player was never registered with Club A. Therefore,
the last club with which the player was registered and had a contract with before
joining Club C was in fact Club F. The Chamber is however unanimous in its
conclusion that in the present matter, which involves the loan of a player and the
non-execution of said loan, Club A should undoubtedly be considered the former
club of the player in the sense of Chapter IV of the Regulations, since it was
clearly the club that suffered damages from the decision of the player to
unilaterally terminate the contract. Indeed, it is evident from the content of the email dated 3 January 2008 that the reason for which the player decided not to
join Club A was his wish to join Club C instead. It follows from said e-mail that it
was therefore also not the intention of the player to return to Club F, i.e. his club
of origin which had just agreed with Club A to loan the player. What is more, the
player never actually returned to Club F to render his services to said club. The
Chamber is of the firm opinion that the circumstances of the present matter, in
particular the fact that a loan was contemplated but eventually never executed
due to the player’s decision to join Club C, can lead to no other conclusion than
that Club A is the player’s former club, i.e. the club that suffered damages from
the early termination of the contract by the player, and that Club C needs to be
considered as the player’s new club in the sense of art. 17 par. 2 of the
Regulations.
Club A, from country B / Club C, from country D
Page 6 of 8
12.
Hence, the Chamber decided that Club C is jointly and severally liable for the
payment of the amount of compensation for breach of contract that the player
has been ordered to pay to Club A in accordance with the decision rendered by
the Dispute Resolution Chamber on 15 June 2011.
13.
Finally, the Dispute Resolution Chamber decided to reject Club A’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
14.
The Chamber concluded its deliberations by rejecting any further claim lodged by
Club A.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club C, is jointly and severally liable for the payment of the
amount of compensation for breach of contract that the Player X has been
ordered to pay to the Claimant in accordance with the decision rendered by the
Dispute Resolution Chamber on 15 June 2011.
3.
If the relevant amount is not paid within 30 days as from the notification of this
decision, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly, of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Club A, from country B / Club C, from country D
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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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Club A, from country B / Club C, from country D
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