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, country B
as Claimant
against the player,
Player C, country B & country D
as first Respondent
and the club,
Club E, country D
as second Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
According to the club from country B, Club A (hereinafter: Club A or the
Claimant), it signed the following three employment contracts with the player
Player C (hereinafter: the player or the first Respondent):
Date of signature
25 May 2009
26 May 2010
31 December 2011
Duration contract
1 June 2009 – 30 May 2010
1 June 2010 – 31 May 2011
31 December 2011 –
30 May 2016
Salary
5,000 per month
8,000 per month
8,000 per month, i.e. for a
total value of 424,000 (53 x
8,000).
2.
The contract dated 31 December 2011 further states that the player “gets bonuses
in the form of: housing allowance, transportation allowance, rewards, flight
tickets and other bonuses (settled by the two parties.)”
3.
On 26 January 2012, the player signed an employment contract with the club
from country D, Club E (hereinafter: Club E or the second Respondent) valid for 4
months in accordance with which he would earn a gross monthly salary of 15,248
as well as 1,749 per point, limited to a maximum of 20 points.
4.
On 26 April 2012, Club A lodged a claim against the player and Club E in front of
FIFA alleging that the player had terminated the contract signed on 31 December
2011 without just cause by concluding a contract with Club E on 26 January 2012.
As a result, Club A requested the payment of 1,272,736 as compensation for
breach of contract plus interest as well as sporting sanctions and CHF 45,000 as
legal costs.
5.
In its claim, Club A explained that it had paid the player:
- 7,675 “in advance” in cash between 13 November 2011 and 13 January 2012;
- USD 9,500 as rent on 15 January 2012;
- 5,700 “in advance” by check on 20 January 2012.
6.
Club A further explained that, prior to the signing of his first contract with Club A
in May 2009, the player was registered with the amateur club from country D,
Club F. According to Club A, due to the political situation between country B and
country D there are no official relations between the Football Association from
country D and the Football Association from country B, reason for which, as is
allegedly common, no International Transfer Certificate (ITC) was issued between
said associations. Club A stressed that it did however receive the Football
Association from country B’s approval for the registration and consequently
registered the player with the Football Association from country B in May 2009.
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 2 of 13
7.
Also, Club A stressed that despite the fact that 32 months had passed since the
player’s last game within Football Association from country D and
notwithstanding that according to the FIFA Regulations after 30 months a player’s
registration is terminated, Club E claimed in the media in country D, and in bad
faith, that for the last 32 months the player was registered with the club from
country D, Club G.
8.
Furthermore, according to Club A, the player played 3 matches under the contract
dated 31 December 2011, after which he left to Club E claiming that he never
signed said contract.
9.
Finally, Club A claimed that on 25 January 2012, it informed Club E about its
contract with the player.
10.
In reply to the claim, the player and Club E (hereinafter together: the
respondents) emphasized that the player never signed the contract dated 31
December 2011 and that his signature on said contract is forged. The player
questioned why he would breach a contract of 4,5 years to sign a contract with
another club for only 4 months. Equally, the player stressed that the first two
contracts were valid for 1 year only, that after the expiry of the second contract
the club did not offer him an extension and that it would thus be illogical to
believe that, after Club A did not want him anymore in May 2011, it suddenly
wanted to sign a contract with him for 4,5 years in December 2011.
11.
Upon request, the alleged original version of the contract dated 31 December
2011 was sent by the Football Association from country B to FIFA. Also, Club A
provided pictures of the player apparently signing a contract and wearing its shirt,
allegedly taken on 31 December 2011.
12.
In this context, the respondents organized a handwriting examination in Zurich
following which the expert appointed by them concluded that the player’s
signature on the contract dated 31 December 2011 was forged.
13.
Furthermore, the respondents pointed out that Club A and the Football
Association from country B never requested the player’s ITC and, as such, had
shown a complete disrespect to the FIFA Regulations. The statement that no
official relations exist between the Football Association from country D and the
Football Association from country B is completely groundless and, even if at a
certain moment the Football Association from country B would have decided not
to maintain any relations with the Football Association from country D, this
cannot be considered as a valid reason to derogate from the duty to request the
ITC.
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 3 of 13
14.
The respondents further clarified that the player was in the 2001/2002 season a
player of Club G and thereafter an amateur with Club E until the end of the
2007/2008 season. In the 2008/2009 season, the player was registered as a
professional with Club E and, in the same season, first loaned to Club H as an
amateur and then subloaned to Club F where he played until the end of the
2008/2009 season. Thereafter, the registration returned to Club E and the player
was transferred to Club G on a definitive basis where he was registered on 10
September 2009 as an amateur. The player remained registered with Club G
between the 2008/2009 and 2011/2012 season, until he was duly transferred to
Club E at the end of January 2012.
15.
In this context, the respondents held that in accordance with art. 5.2 of the FIFA
Regulations on the Status and Transfer of Players, a player may only be registered
with one club at the time and outlined that when the player was registered with
the Football Association from country B, he was already registered with the club
from country D, Club G. Therefore, the legal consequence is that Club A had no
legitimate right to register the player and it severely disrespected the FIFA
Regulations. The respondents held that, as a result, the non-validity of the
registration affects the contract between Club A and the player, making it invalid.
16.
While the player acknowledged that he was playing with Club A until the end of
the 2010/2011 season, he underlined that the contract was not extended, reason
for which he started playing in the 2011/2012 season with the club from country
B, Club Q. The player played 8 matches for Club Q, was paid nothing and had no
contract and therefore decided to leave Club Q. Then, the player did not train or
play for two months until Club A asked him to return, however he did not sign
any contract. Around November 2011, he started playing again for Club A under
the clear agreement that if he would find a new club he would be free to leave,
which happened when Club E offered him to return in January 2012. According to
the player, he accepted the offer and immediately informed the coach of Club A
of his intention to join Club E. Finally, the respondents stated that since the player
remained registered with the Football Association from country D, no ITC was
required.
17.
Moreover, the player rejects that he received any amount other than the 5,700,
which was only paid because at the time he joined Club A he was told that he
may be paid some amounts at the discretion of Club A. Equally, the player stated
that he never received the USD 9,500; there is no signature on the document and
the document confirms it was paid to a certain Mr Z.
18.
In the alternative, the respondents argue that Club A’s request for compensation
should either be rejected or limited to 140,000 for the following reasons:
i)
The contract with Club E was only valid for 4 months and no new contract
was offered after those 4 months;
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 4 of 13
ii)
iii)
iv)
v)
vi)
The average basic salary between the two contracts amounts to 11,624;
When the player returned to Club A he only received an amount of 5,700;
Both Club A and Club E are clubs with a similar status;
Club A did not prove any real sportive damages;
The amount claimed is excessive corresponding to 159 salaries of the player.
19.
Finally, Club E argued that it should not be liable to compensate Club A since it
did what it had to do when they contracted the player; Club E checked with the
Football Association from country D about the status of the player and was
informed that he was registered with the Football Association from country D as a
player of Club G. Club E had no reason to believe that the player, apart from
being registered with the Football Association from country D, was also registered
with the Football Association from country B, since this is an impossible situation
as a player cannot be registered with two associations.
20.
In its replica, Club A stressed that the contract with the player is genuine and
organized a handwriting examination in country D following which the expert
appointed by it concluded that “all the signatures were made by the player”.
21.
Moreover, Club A explained that it offered a 5-year contract to the player at the
end of the 2010/2011 season, since the player was the best player in the club, a
new born star of the country B national team and a significant talent. The player
however refused to sign with Club A and instead signed with the wealthier club
Club Q. When the player was at Club Q, the parties decided to split for reasons
unknown to Club A, however, Club A immediately offered the player a contract
and after a short period of negotiations, the contract dated 31 December 2011
was signed. Club A mentioned that Club E’s statement that it had the player
playing with them without a contract is ridiculous, as this is against the law. Club
A reiterated that the player played 3 matches for the club, received remuneration
and by doing so validated the new agreement.
22.
As to the reason why the player left, Club A stated that the player would earn
with Club E “145,972” in 4 months which is almost equal to the amounts he
would receive in 2 full seasons with Club A. Also, Club A insisted that 4 months in
the country D league would guarantee his financial future, which turned out to
be correct, since he signed a contract with Club J afterwards.
23.
As to the player’s registration, Club A stressed that the Football Association from
country D’s official online registration system does not mention any club with
which the player was registered during the 2009/2010 and 2010/2011 season; he
never played for Club G and never signed a contract with Club G. Club A also
questioned why the Football Association from country D or Club G never sought
the interference of FIFA if it believed the player belonged to Club G and holds
that the player was playing with Club A under an official TMS registration. Club A
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 5 of 13
states that the player even contradicts himself in his witness statement saying that
he was contacted by Club A when he was playing for Club E and not for Club G.
24.
Furthermore, Club A stated that it followed the FIFA Regulations when it
registered the “released amateur player” within the Football Association from
country B and that FIFA acknowledged the registration of the player in the
Football Association from country B through the TMS. Also, even if the player was
registered with Club G as from the end of the 2008/2009 season, his registration in
the Football Association from country D was terminated 30 months later in
accordance with art. 4.1 of the FIFA Regulations.
25.
As to the financial part, Club A holds that, in accordance with the Football
Association from country D Regulations, Club E received a large amount of
compensation when the player was transferred to Club J and amended its claim to
3,105,692, calculated by adding the player’s salary with Club E to the “minimum
current value” of the player in the amount of 1,500,000.
26.
Finally, Club A insisted that all amounts were paid to the player including the rent
which was paid to the owner of the player’s apartment. In this respect, Club A
submitted a document signed by the Bank A.
27.
In their duplica, the respondents reiterated their previous position, in particular
regarding the player’s status at the end of the 2008/2009 season, and added that
whereas a player can certainly leave a club when there is no contract in place, an
ITC is still irrefutably required in order for a player to register and play in another
association.
28.
Furthermore, Club A’s argument that a player playing without a contract is
against the law is completely at odds with the conduct of the Football Association
from country B and Club A; the player has played with Club Q in precisely that
scenario as evidenced by the lack of contract provided by Club A and also played
in November and December 2011 for Club A without a contract.
29.
As to the arguments why the player would prefer a 4 month contract in country
D, the respondents indicated that these are pure speculations whilst emphasizing
that the amounts earned with Club E are gross meaning that roughly 50% of the
monthly salary would be deducted. Equally, the respondents state that the
allegation that it received 1,500,000 from Club J is baseless.
30.
As to the registration on the Football Association from country D website, the
English version indeed does not show such information, but it does not do so for
any information regarding the 2006/2007 season until the present. The version in
the language of country D however does clearly show the registration of the
player with Club G in the 2009/2010 and 2010/2011 season. Also, the fact that
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 6 of 13
Club G did not seek for interference does not preclude Club A’s severe violation of
the FIFA Regulations.
31.
In addition, Club A’s statement that FIFA acknowledged the player’s registration
through TMS is clearly false, since the registration took place in June 2009 when
TMS did not even exist.
32.
Finally, the respondents disputed the conclusion of Club A’s expert regarding the
handwriting examination.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
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 26 April 2012. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 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 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a club affiliated to the Football Association
from country B, a player with a passport from country B and country D and a club
affiliated to the Football Association from country D.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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 2014) and
considering that the present claim was lodged in front of FIFA on 26 April 2012,
the 2010 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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, from country B / Player C, from country B & from country D / Club E, from country D
page 7 of 13
5.
Having considered all the argumentation put forward by the parties, the Chamber
acknowledged that the first issue on which it had to decide was whether the
player and Club A had in fact concluded an employment contract on 31 December
2011. The Chamber observes that whereas Club A holds that such contract had
indeed been concluded with the player, the respondents vehemently deny that
any such contract was concluded and allege that the player’s signature on the
contract submitted by Club A is a forgery.
6.
In this respect, the Chamber underlined that, upon request, it was provided with
the alleged original version of the employment contract dated 31 December 2011.
At this stage, the DRC considered it appropriate to remark that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law,
such as the ones of alleged falsified signatures or documents, and that such affairs
fall into the jurisdiction of the competent national criminal authority.
7.
In this regard, the DRC recalled that all documentation remitted shall be
considered with free discretion and, therefore, it focused its attention on the
alleged original document. The Chamber underlined that it had been provided
with two conflicting expert reports regarding the handwriting examinations,
reason for which the Chamber decided to give no weight to the handwriting
examinations.
8.
After a thorough analysis of the aforementioned documents, in particular,
comparing the relevant signature and contract dated 31 December 2011 to the
previous contracts, the DRC concluded that for a layman the player’s signatures on
the various documents available, including the challenged employment contract
dated 31 December 2011, seem to be alike and genuine.
9.
In this context, the Chamber is well aware that the respondents question why a
player would breach a contract of 4,5 years to sign a contract with another club
for only 4 months and that it would be illogical to believe that, after Club A did
not want the player anymore in May 2011, it suddenly signed a contract with him
for 4,5 years in December 2011. The Chamber finds however that the explanations
given by Club A in reply to these statements are not implausible or completely
inconceivable.
10.
In view of all of the above, and based on the documentation at its disposal, the
DRC came to the conclusion that the employment contract dated 31 December
2011 is to be considered valid and shall, thus, be taken into consideration. As a
result, the DRC concluded that the player and Club A had concluded an
employment contract valid as from 31 December 2011 until 30 May 2016.
11.
The direct consequence of the above-mentioned consideration is that the player,
by signing a contract with Club E on 26 January 2012, signed two employment
contract for an overlapping period of time and therewith breached his contract
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 8 of 13
with Club A. As a result, the Chamber determined that the player terminated the
contract with Club A without just cause on 26 January 2012.
12.
In this framework, the DRC wished to clarify that all arguments raised in relation
to the registration of the player and the ITC of the player do not have any effect
on the validity of the contract between the player and Club A. Although the
Chamber agrees with the respondents that in accordance with art. 9 par. 1 of the
Regulations, a player registered at one association may only be registered at a
new association once the latter has received an ITC from the former association, it
is the well-established jurisprudence of the Chamber that the issuance of the ITC
and the registration of a player are administrative formalities which cannot
invalidate an employment contract. In other words, and bearing in mind art. 18
par. 4 of the Regulations, the Chamber considered that the validity of an
employment contract cannot be made conditional upon the execution of
(administrative) formalities, such as, but not limited to, the registration procedure
in connection with the international transfer of a player.
13.
Thus, the Chamber does not agree with the respondents that the registration
affects the contract between a player and club, yet these circumstances may be
taken into consideration when calculating the amount of compensation for
breach of contract.
14.
Consequently, having determined which party terminated the employment
contract without just cause, the Chamber focused on the financial consequences
of the termination of contract without just cause. The Chamber decided that, by
unilaterally and prematurely terminating the employment contract with Club A
without just cause, in accordance with article 17 par. 1 of the Regulations, the
player is liable to pay compensation for breach of contract to Club A.
15.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless provided for in the contract at the basis of the dispute, with
due consideration for the law of the country concerned, the specificity of sport
and further objective criteria, including, in particular, the remuneration and other
benefits due to the player under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years, the
fees and expenses paid or incurred by the former club (amortised over the term of
the contract) and whether the contractual breach falls within the protected
period.
16.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 9 of 13
compensation payable in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
17.
As a consequence, the members of the Chamber determined that the amount of
compensation for breach of contract in the present matter had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body. Furthermore, the
Chamber highlighted that each request for compensation for breach of contract
has to be assessed on a case-by-case basis taking into account all specific
circumstances of the respective matter, as well as the Chamber’s specific
knowledge of the world of football and its experience gained throughout the
years.
18.
Having said this, the Chamber turned its attention to the remuneration and other
benefits due to the player under the existing contract and the new contract. The
members of the Chamber deemed it important to emphasise that the wording of
article 17 par. 1 of the Regulations allows the Chamber to take into account both
the existing contract and any new contract(s) in the calculation of the amount of
compensation thus enabling the Chamber to gather indications as to the
economic value attributed to a player by both his former and his new club.
19.
In this respect, the Chamber noted that the remuneration of the player with Club
A under the contract dated 31 December 2011 for the period as from February
2012 until May 2016 amounted to the total amount of 416,000, which
corresponds to 52 monthly payments of 8,000.
20.
Further, the Chamber observed that the player would earn with Club E the
amount of 15,248 per month. Calculating the monthly remuneration of 15,248
over the same period of time that the player had a contract with Club A, i.e. 52
months, this amounts to 792,896. The average of the value of both contracts
therefore amounts to approximately 600,000.
21.
The Chamber continued by underlining that Club A had not provided any further
conclusive evidence that could be taken into consideration by the Chamber when
determining the value of the player.
22.
The DRC therefore came to the conclusion that, in the present matter, the salaries
of the player were the only indication as to the economic value attributed to the
player and, thus, as to the potential market value of the player.
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 10 of 13
23.
Notwithstanding the above, the members of the Chamber, after considering all
the facts of the case, deemed it important to recall that, although it had
considered that the player was to be held responsible for having terminated the
contract without just cause, one should not omit the fact that Club A’s behaviour
had not been without flaws either, in particular since the ITC for the player was
never requested when the player moved for the first time from country D to
country B. The DRC finds that this should serve as a mitigating factor.
24.
On account of all of the above-mentioned considerations, in particular the
attenuating circumstances and the specificities of the case at hand, the Chamber
decided that the player must pay the amount of 450,000 to Club A as
compensation for breach of contract, which is considered by the Chamber as a fair
and adequate amount of compensation in the present matter. In addition,
considering the request of Club A, the Chamber decided to award 5% interest on
said amount as from the date of the claim.
25.
Furthermore, in accordance with the unambiguous content of article 17 par. 2 of
the Regulations, the Chamber established that Club E shall be jointly and severally
liable for the payment of compensation.
26.
In this respect and in relation to Club E’s argumentation, the Chamber was eager
to point out that the joint liability of a player’s new club is independent from the
question as to whether this new club has committed an inducement to
contractual breach. This conclusion is in line with the well-established
jurisprudence of the Chamber that was repeatedly confirmed by the Court of
Arbitration for Sport (CAS). Hence, the Chamber decided that Club E is jointly and
severally liable for the payment of the relevant compensation.
27.
In relation to Club A’s request for legal costs, the Chamber referred to art. 18 par.
4 of the Procedural Rules which stipulates that in proceedings of the DRC no
procedural compensation shall be awarded. As a result, the Chamber decided to
reject this part of Club A’s claim.
28.
The Chamber concluded its deliberation by rejecting any further claim lodged by
Club A.
*****
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 11 of 13
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The first Respondent, Player C, has to pay to the Claimant, within 30 days as
from the date of notification of the present decision, compensation for breach of
contract in the amount of 450,000 plus 5% interest p.a. on said amount as from
26 April 2012 until the date of effective payment.
3.
The second Respondent, Club E, is jointly and severally liable for the payment of
the aforementioned amount.
4.
In the event that the amount due to the Claimant is not paid within the stated
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the first Respondent and the second
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.
*****
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]
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 12 of 13
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Club A, from country B / Player C, from country B & from country D / Club E, from country D
page 13 of 13