Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2015,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamazaki (Japan), member
Santiago Nebot (Spain), member
Mohamed Mecherara (Algeria), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the club,
Club L, from country B
as Claimant
against the player,
Player J, from country P
as Respondent 1
and the club,
Club M, from country R
as Respondent 2
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 2 January 2009, Club L, from country B (hereinafter: the Claimant or Club L), the
Club M, form country R (hereinafter: the Respondent 2 or Club M) and Player J, form
country P (hereinafter: the Respondent 1 or the player) concluded a loan agreement,
according to which the player would be temporarily transferred from Club M to Club
L, as from 1 January 2009 until 31 December 2009, i.e. for 1 year.
2.
According to art 1.2 of the loan agreement, “The player assumes the obligation to
represent in Club M on January 05, 2010 for the continuity of the execution of the
employment contract Club M, which is now suspended for the period of temporary
transfer (loan). In case the clubs schedule a later date for its player’s group
representation, the player is authorized to accomplish this new date”.
3.
Article 2.1 of the loan agreement further establishes that “The transfer fee for the
temporary transfer (loan) of the player regulated by this agreement is EUR 125,000
net on yearly basis”.
4.
Also art. 4.1.2 stipulates that: “Club L is obliged: […] To sign the employment
agreement with the player for the whole period of temporary transfer (loan), on
terms to be agreed with the player in accordance with the total annual budget as
referred to in article 1 of this agreement”.
5.
Furthermore, according to art. 7.1 of the loan agreement, “Club L shall not, upon
signing the player on loan, transfer him to a 3rd club”.
6.
In addition, art. 7.2 of the loan agreement stipulates that “In case if during the period
of the employment contract with Club L from 1 January 2009 till 31 December 2009
the player received an offer to transfer to any 3rd club and Club M transfers the rights
[…] over the player to third club, Club L will be entitled to 15% of the profit over an
eventual future and definitive transfer of the player from Club M to the third club”.
7.
Finally, art. 7.5 of the loan agreement establishes that “Under no circumstances shall
the loan agreement be extended beyond December 31, 2009”.
8.
On 8 January 2009, the Claimant and the Respondent 1 signed an employment
contract, valid as from 1 January 2009 until 30 June 2009. According to art. 2 of the
contract, the contract may be extended for one more season, namely season
2009/2010, in case the option is exercised until 31 March 2009.
9.
In addition, according to art. 11 and 13 of the contract, the Respondent 1 is entitled
to receive from the Claimant:
- EUR 10,000 as sign-on fee payable in 3 instalments;
Club L, from country B / Player J, from country D / Club M, from country R
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- EUR 3,000 as monthly salary, payable at the latest on the 10th day of the
subsequent month;
- EUR 500 per month for accommodation costs;
- EUR 500 per month for moving costs;
- 2 air tickets per season.
10.
Moreover, art. 21 of the contract provides that the party that prematurely terminates
the contract should pay compensation to the other party corresponding to the salaries
for the residual period of the contract and should not exceed the double of the
amount established in art. 5 par. 2 of the Law of the 24.02.1978.
11.
According to a confirmation of the country B Football-Association, dated 28 January
2010, “On 24th January 2009, we received an ITC from the country R Football
Association. without separate agreement. Therefore, this international transfer was
registered as permanent transfer and not on loan. On 9th April 2009, a notification of
professional player’s contract was entered, signed by our club Club L. and player J.
According to this notification, the player’s contract ends on 30th June 2010”.
12.
On 7 January 2010, the Claimant and the player signed a new transfer agreement,
according to which the Respondent 1 would be loaned from Club M to Club L as from
1 January 2010 until 30 June 2010. This agreement was not signed by Club M, even
though the latter was mentioned as a party in the agreement.
13.
According to art. 1.4 of the new agreement, “The player and Club M agree with a
total annual budget of EUR 75,000 (gross) for the employment contract that is offered
to Club L”.
14.
In addition, as per art. 2.1 of the new agreement, “The transfer fee for the temporary
transfer (loan) of the player regulated by this agreement is EUR 62,500 net of the six
months period”, payable on 1 February 2010.
15.
On 14 January 2010, the Club G, from country G, from country B, Club M and the
player signed another transfer agreement, by means of which Club M temporarily
transferred the player to Club G, for the period ranging from 14 January 2010 until 31
December 2010, for the amount of EUR 140,000 net, payable as follows: EUR 95,000
on 30 January 2010 and EUR 45,000 on 30 June 2010.
16.
Furthermore, according to art. 7 of said agreement, “The parties agree that Club G
shall be granted the definitive transfer option at the following terms and conditions:
The fee for the definitive transfer of the player is fixed by Club M at net amount of
EUR 1,000,000 (One million EUR). The parties agree that if Club G wishes to acquire
the definitive transfer of the rights over the player, Club G shall send a written notice
of this option to Club M till 30 November 2010”.
Club L, from country B / Player J, from country D / Club M, from country R
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17.
On 19 January 2010, the Respondent 2 requested the country B Football Association
to return the International Transfer Certificate (ITC) of the Respondent 1 to the
Football Union of country R, “taking into account that the loan period of the above
said player expired on 31st December 2009”, which was denied on the same day by the
country B Football Association.
18.
On 25 January 2010, in view of the country B Football Association’s refusal to return
the player’s ITC, the Respondent 2 requested FIFA to “oblige country B Football
Association to return ITC of Player J to country R Football Association. After that
country R Football Union will be able to resend ITC to country B Football Federation
in order to register player of Club G”.
19.
On the same date, Club G equally requested FIFA to decide upon the matter involving
the country B Football Association, the country U Football Association, the Claimant
and the Respondent 2, with a view to obtain the player’s registration with Club G.
20.
According to the Claimant, in view of the obligation of solidarity among the country
B clubs, it authorized the country B Football Association to deliver the player’s ITC to
the country R Football Association in order to allow the pursuit of his career with Club
G as from 29 January 2010.
21.
On 4 February 2010, the Claimant lodged a claim in front of FIFA against the
Respondent 1 and the Respondent 2, for breach of contract and inducement to
breach, respectively, requesting the payment of compensation in the total amount of
EUR 250,000, estimated in view of the following facts:
- the transfer fee offered by Club L to Club M on 7 January 2010, amounting to
EUR 62,500 (cf. point I.14. above);
- the player’s gross remuneration, corresponding to EUR 100,000;
- the Respondent 2 profited from an increase in the Respondent 1’s value, arising
from the period he played with the Claimant;
- the Claimant should have received 15% of any transfer fee payable for the
Respondent 1 in case of transfer to a third club (cf. point I.6. above);
- the Claimant was deprived of its best forward, in a sudden and incorrect manner.
22.
In case the DRC considers that no loan agreement was concluded between the
Claimant, the Respondent 1 and the Respondent 2, the Claimant requests that no
sporting sanctions should be imposed on it, based on the fact it did not oppose to the
issuance of the Respondent 1’s ITC, allowing him to pursue his career with Club G, and
that the Respondent 2 was responsible for the failure to inform the country B Football
Association that the Respondent 1’s transfer in January 2009 was temporary (cf. point
I.11. above).
23.
In its claim, the Claimant explains that in January 2009, the country R Football Union
failed to provide the country B Football Association with a copy of the loan
Club L, from country B / Player J, from country D / Club M, from country R
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agreement mentioned in point I.1. above and, therefore, the Respondent 1 was
mistakenly registered on a permanent basis with the Claimant. In December 2009, the
Claimant allegedly contacted the Respondent 2 with a view to discuss the extension of
the Respondent 1’s employment with the country B club. In this regard, the
Respondent 2, by means of its e-mail dated 11 January 2010, stated the following: “As
regards the prolongation of the loan of Player J we have reviewed the draft of the
player transfer agreement of 07.01.2010 [cf. point I.12. above] sent to our club and I’d
like to discuss the following. Art. 4.3.1. sets the obligation of Club M to guarantee the
issuance of the ITC by the [country R Football Union] until 10 January 2010. Player J
will return only on 1 of July 2010 and ITC shall be issued when a player returns to his
club of origin, so we propose that now we will not request and re-send ITC for the
player, so it will remain in [country B Football Association] till 01st of July 2010.
Therefore we propose to eliminate from the text of agreement art. 4.3.1. Besides, we
supposed that Player J shall give his consent to this transfer and sign this agreement
before it will be signed by our club […]”.
24.
Consequently, on 12 January 2010, the Claimant provided the Respondent 2 by e-mail
with a copy of the loan agreement of 7 January 2010 (cf. point I.12. above), signed by
the Claimant and the Respondent 1.
25.
According to the Claimant, the Respondent 1 resumed training with it on 7 January
2010. However, on 14 January 2010, he was absent at training and, on the same day,
the Claimant received a letter from the Respondent 2, by means of which the country
R club explained that “[It] would like to inform [the Claimant] that unfortunately we
have to refuse your proposal for the loan of our player J. We had to take a very
difficult decision as you offered us good conditions for the player and Player J was
really happy playing in your team, but we have to accept another offer which is
economically better than yours […]”. In addition, the Respondent 2 requested the
return of the player’s ITC to the country R Union.
26.
By means of its letter dated 18 January 2010, the Claimant contested the Respondent
2’s attitude in view of the fact that an agreement had been previously reached by the
parties for the extension of the Respondent 1’s loan with the Claimant until 30 June
2010. Following such letter, a dispute for the Respondent 1’s ITC was initiated in front
of FIFA, as described in detail in points I.17. to I.20. above, culminating with the
Claimant authorizing the country B Football Association to deliver the player’s ITC to
the country R Football Union, in order to pursue his career with Club G as from 29
January 2010.
27.
Based on the foregoing, the Claimant points out that the Respondent 1 agreed to the
extension of his loan with the latter club, by signing the agreement of 7 January 2010
(cf. point I.12. above), and that the Respondent 2 never expressed its disagreement
with such prolongation, when consulted about it. Thus, the Claimant requests to be
Club L, from country B / Player J, from country D / Club M, from country R
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compensated for the damage caused by the Respondent 1’s and the Respondent 2’s
disrespect of their agreement.
28.
In his reply, the Respondent 1 states that in January 2009 he signed an employment
contract with the Claimant, which was to expire in December 2009 (cf. point I.1.
above). On 5 January 2010, he claims to have returned to the Respondent 2 to
continue to execute his employment contract with such club. By then, he was
informed by the Respondent 2 that several clubs were interested in his services,
among which the Claimant, which envisaged a prolongation of the loan. As per the
Respondent 1, “At the same time another Club G proposed to Club M and to me
better financial terms than Club L. And what is more important this club is higher in
championship ranking and therefore has more chances to participate in the European
club competitions than Club L”. Thus, the Respondent 1 and the Respondent 2
decided to conclude a new transfer contract with Club G.
29.
Based on the foregoing, the Respondent 1 states that “[he] cannot agree with the
claim of Club L regarding a compensation for breach of the contract as the
prolongation of loan for 2010 was not finalized without consent of Club M”.
30.
In reply to the Claimant’s claim, the Respondent 2 first referred to art. 7.5 of the loan
contract of 2 January 2009 (cf. point I.7. above) and stated that the Respondent 1’s
loan with the Claimant could not be extended beyond 31 December 2009. The
Respondent 2 also pointed out that, in spite of the clear wording of said art. 7.5, the
Claimant signed an employment contract with the player on 8 January 2009,
extendable until 30 June 2010. Following their negotiations in December 2009, the
Respondent 2 decided to decline the Claimant’s offer for the extension of the
Respondent 1’s loan and, consequently, did not sign the documentation provided to it
by the Claimant in this regard. Moreover, the Respondent 2 informed the Claimant on
14 January 2010 that it had not accepted the prolongation of the Respondent 1’s loan
with that club (cf. point I.25. above).
31.
The Respondent 2 then refers to the ITC dispute (cf. points I.17. to I.20. above) and
claims that only later on it was informed that the Respondent 1 was able to play his
first match with Club G on 29 January 2010, as the matter was dealt by the Claimant
and Club G as an internal transfer. In this respect, the Respondent 2 deems that the
Claimant breached art. 10 par. 3 of the FIFA regulations by internally transferring a
player, who was contractually bound to the Respondent 2. Furthermore, the
Respondent 2 deems that the Claimant also breached art. 7.1 of the loan agreement
of 2 January 2009 (cf. point I.5. above), by transferring him to a third club, namely
Club G. Finally, the Respondent 2 deems that the Claimant equally breached art. 4 of
the Annex 3 of the FIFA regulations, by not enclosing the terms of the loan
agreement to its registration request in front of the country B Football Association in
January 2009. Thus, the Respondent 2 rejects Claimant’s claim.
Club L, from country B / Player J, from country D / Club M, from country R
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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 4 February
2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (editions 2009, 2010,
2012, 2014 and 2015) 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 country B club, a country P player and a country R club.
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 (editions 2009,
2010, 2012, 2014 and 2015), and considering that the present claim was lodged on 4
February 2010, the 2009 edition of said regulations (hereinafter: the 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 DRC 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 DRC
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.
5.
In this respect, the Chamber first acknowledged that it was undisputed by the parties
that, on 2 January 2009, the Claimant, the Respondent 1 and the Respondent 2 had
signed an agreement for the loan of the Respondent 1 to the Claimant, for the period
of 1 January 2009 until 31 December 2009.
6.
Subsequently, the Chamber also noted that the parties did not dispute that, on 8
January 2009, following the signing of the aforementioned loan agreement, the
Claimant and the Respondent 1 signed an employment contract valid as from 1
January 2009 until 30 June 2009 and extendable for season 2009/2010.
Club L, from country B / Player J, from country D / Club M, from country R
7/10
7.
The Chamber also noted that it remained undisputed by the parties that, on 14
January 2010, the Respondent 1, the Respondent 2 and the country B club, Club G,
concluded a new agreement for the loan of the Respondent 1 to Club G, valid as from
the date of signature until 31 December 2010.
8.
The Chamber further noted that, on the one hand, the Claimant maintained that, in
the beginning of January 2010, it was negotiating with both the Respondent 1 and
the Respondent 2 an extension of the loan agreement of 2 January 2009. As a result,
on 7 January 2010, the Claimant and the Respondent 1 signed a new agreement, as
per which the Respondent 1 would be loaned to the Claimant as from 1 January 2010
until 30 June 2010. In this context, the Claimant referred to an e-mail of the
Respondent 2, dated 11 January 2010, by means of which it indicated to agree with
the extension of the Respondent 1’s loan with the Claimant, as long as the
Respondent 1 also accepted it. Based on the foregoing, the Claimant deems that, the
Respondent 1 and the Respondent 2, when signing a new transfer contract with Club
G on 14 January 2010, respectively breached and induced the breach of the
employment contract signed with the Claimant.
9.
The Respondent 1 and the Respondent 2, on the other hand, deem that the new
transfer agreement was legally concluded with Club G on 14 January 2010, as by then
they were not anymore legally bound to the Claimant. In this respect, they indicated
that the loan agreement with the Claimant had expired on 31 December 2009 (cf.
point I.1. above) and that the Respondent 2 never signed the agreement of 8 January
2009 for the extension of such period until 30 June 2010.
10.
From all the aforementioned, the members of the Chamber highlighted that the
fundamental disagreement between the parties and the central issue to the present
dispute is whether the loan agreement concluded between the parties on 2 January
2009 was indeed legally extended on 7 January 2010.
11.
In this context, the DRC deemed it appropriate to remind the parties of the basic
elements of a valid and binding contract, namely an offer, consisting of an expression
of willingness to contract on a specific set of terms, with a view that they are accepted
by its counterparty and that all sides involved will become contractually bound, and
an acceptance of said offer, consisting of an expression of absolute and unconditional
agreement to all the terms set out in the offer, by means of a signature.
12.
Bearing in mind the aforementioned principles as well as the particular circumstances
of the present case, the Chamber observed that the agreement for the extension of
the loan period of the Respondent 1 with the Claimant, dated 7 January 2010, a copy
of which was provided by the Claimant, only bears the signatures of the latter and of
the Respondent 1. However, the Chamber noted that the Respondent 2, in spite of
being a party to this agreement, did not sign it. The Respondent 2, in its reply to the
claim, also confirms that, in spite of its initial interest, it decided not to sign the
Club L, from country B / Player J, from country D / Club M, from country R
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extension of the Respondent 1’s loan with the Claimant. Therefore, an essential
element for the validity of a contract, i.e. the acceptance of the offer by the
counterparty, concretely expressed by the signature, is missing in the document of 7
January 2010, signed only by two of the three parties.
13.
For the sake of completeness, the DRC also referred to the e-mail of the Respondent 2
dated 11 January 2010, provided by the Claimant, which the latter considers to be the
proof of the Respondent 2’s agreement with the extension of the Respondent 1’s loan
period. In this respect, the members of the Chamber were eager to emphasize that
the expression of a possible future intention of the Respondent 2, via a rather
informal means of communication, cannot be considered as the ultimate acceptance
of that party to the extension of the Respondent 1’s loan and has, in the present case,
no legal value in the absence of a confirmation of such intention through the actual
signature of the agreement of 7 January 2010.
14.
In view of the foregoing, the DRC concluded that the document of 7 January 2010,
regarding the extension of the Respondent 1’s loan with the Claimant, cannot be
considered as a valid and binding agreement, generating legal consequences for the
parties, as it was not signed by the Respondent 2 and, consequently, lacks an essential
element of validity, i.e. the unambiguous manifestation of assent to the terms thereof
from one of the parties.
15.
In this context, the DRC also pointed out that the loan agreement validly concluded
between all parties on 2 January 2009 (cf. point I.1. above) was due to expire on 31
December 2009. Furthermore, art. 7.5. of said agreement stipulated that “Under no
circumstances shall the loan agreement be extended beyond December 31, 2009”.
Finally, the DRC also deemed it appropriate to point out that the Claimant was only
allowed to sign an employment contract with the Respondent 1 for the duration
agreed upon with the Respondent 2 on 2 January 2009, i.e. until 31 December 2009,
and, thus, the Claimant’s decision to extend the player’s employment contract until 30
June 2010 without the consent of Club M was in violation of the loan agreement
signed between all parties.
16.
Therefore, on 14 January 2010, when the Respondent 1 established a new contractual
relationship with Club G, he was a free player and was no longer contractually bound
to the Claimant. Consequently, the DRC concluded that the Respondent 1 did not
breach any contract with the Claimant and also no inducement to breach had been
committed by the Respondent 2.
17.
Based on the foregoing, the members of the DRC decided to entirely reject the claim
of the Claimant.
***
Club L, from country B / Player J, from country D / Club M, from country R
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club L, is rejected.
*****
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 L, from country B / Player J, from country D / Club M, from country R
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