Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 March 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
S tijn Boey kens (Belgium ), member
Tom is lav Kas alo (Croatia), member
Daan de Jong (The Netherlands ), member
Elv is Chetty (S ey chelles ), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the player,
Play er C, Country D
as Respondent 1
and the club,
Club E, Country F
as Respondent 2
and the club,
Club G, Country H
as Respondent 3
and the club,
Club J, Country D
as Respondent 4
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 29 January 2016, the player of Country D, Player C (hereinafter: the player or the
Respondent 1), and the club of Country B, Club A (hereinafter: Club A or the
Claimant), signed an employment contract valid as from 2 February 2016 until 30
June 2018.
2.
In accordance with the contract, the player was entitled to receive, inter alia, the
following remuneration:
a. For the 2015-2016 sporting season, the total amount of EUR 3,975, payable
in “five instalments” of EUR 795 each, as from February 2016 until June
2016;
b. For the 2016-2017 sporting season, the total amount of EUR 9,540, payable
in “eleven instalments” of EUR 795 each, “as from July 2016 until June
2017”;
c. For the 2017-2018 sporting season, the total amount of EUR 9,540, payable
in “eleven instalments” of EUR 795 each, “as from July 2017 until June
2018”;
d. “In addition to the remuneration fixed in the previous numbers, the club is
obliged to guarantee to the player accommodation during the period
between the date of signature of this contract and 05/30/2018”.
3.
On 21 February 2017, Club A lodged a claim against the player, the club of Country
F, Club E (hereinafter: Club E or the Respondent 2), and against the the club of
Country H, Club G (hereinafter: Club G or the Respondent 3), claiming that on 19
August 2016, the player had breached the contract by refusing to train or play with
the team and that he had subsequently signed a contract with Club E and Club G. In
this context, Club A requested that the player and the clubs, Club E and then with
Club G, to be considered jointly and severally liable for said breach, stressing that
the player was contractually bound to Club A as of 2 February 2016 until 30 June
2018. In this respect, Club A affirmed that by signing an employment contract with
Club E and Club G, the player could no longer fulfill his contractual duties with it,
thus constituting a clear breach of contract without just cause.
4.
According to Club A, “after his arrival, the player participated in several games until
the end of the first season and confirmed the expectations that the club had with
respect to his evolution showing to be an added value for the team”. In this respect,
Club A submitted a copy of a player’s report, which indicates that the player
participated in six matches with Club A between 26 March 2016 and 30 April 2016.
5.
Club A further argued that, “the player went on holidays to his country and
returned end of July to train with the team” but that, “as soon as he arrived in
Country B, the player refused to practice with the team saying that he had several
proposals from foreign clubs and that he wanted to leave”. Furthermore, Club A
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 2 of 16
affirmed that the President of the club allegedly warned the player that his refusal
to train with the team constituted a breach of contract.
6.
What is more, Club A declared that, “after several meetings in his Hotel, as the
player refused to go to the club facilities, [the player], by way of a written
statement dated 19 August 2016, stated that he refused to train and play or carry
on any activity for [Club A] because he did not have the psychological conditions to
do so”. In this regard, Club A provided a document in French titled “Declaration”,
which reads “Moi, Player C […] joueur de football professionnel avec un contrat
valide avec Club A […] déclare que je refuse de m’entraîner, et de jouer ou
d’effectuer quelque activité en faveur de Club A pour ne pas avoir des conditions
psychologiques à faire ça”. Moreover, Club A stated that the player’s signature in
said statement had been certified by an official notary and provided FIFA with the
relevant notarial certification.
7.
According to Club A, the player’s statement shows that, “the player wanted to
breach the contract in order to play for another club without respecting the
contract in force and without any previous negotiation between clubs referring to a
possible transfer”.
8.
In this regard, Club A affirmed that, “after having signed and delivered the above
mentioned statement, the player left Country B and the club was unable to contact
him personally or by phone”. Furthermore, Club A stated that it became aware that
the player signed a contract with Club E and sustained that, on 9 October 2016, it
sent a default notice addressed to both the player and Club E, in which Club A
requested the player and Club E to pay compensation for breach of contract in the
amount of EUR 190,000.
9.
In this context, Club A also stated that it eventually discovered in the media that the
player was playing for Club G and consequently put the player and Club G in default
on 23 January 2017, asking to be paid compensation for breach of contract in the
amount of EUR 190,000.
10.
On the basis of the above-mentioned facts, Club A requested the total payment of
EUR 176,080 as compensation for the alleged breach of contract incurred by the
player, plus 5% interest p.a. “as from the date of the breach until full payment”. In
this respect, Club A presented the following breakdown:
a. EUR 26,080 “regarding salaries and benefits under the employment
contract”. In this context, Club A affirmed that in the hypothetical case the
player had respected the contract, he would have been entitled to receive
the total amount of EUR 19,080 (i.e. 2 x EUR 9,540), corresponding to his
remuneration for the 2016/2017 and 2017/2018 sporting seasons, as well as
the total amount of EUR 7,000, allegedly corresponding to his “house rent”
for two sporting seasons;
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 3 of 16
b. EUR 150,000 for the “estimated loss generated by the breach of the
contract”, considering that “a young forward like [the player] with several
appearances for the national team has a safe transfer value” and taking into
account “the specificity of the sport”.
11.
Furthermore, Club A referred to art. 17.2 of the Regulation and held that the clubs,
Club E and Club G, should be jointly and severally liable for said breach. In addition,
Club A requested sporting sanctions to be imposed on the player and the clubs, Club
E and Club G, due to the alleged breach of contract which “occurred during the
protected period”, as prescribed in art. 17.3 and 17.4 of the Regulations.
12.
In his reply, the player stated that he allegedly signed a contract with Club A
establishing a monthly remuneration of EUR 8,000, in presence of Mr. Y, who
allegedly represented Club A. What is more, the player affirmed that, upon his
arrival in Country B, he never received a counter-signed copy of said contract. In this
regard, the player provided a copy of the alleged contract dated 26 February 2015,
valid as from 1 March 2015 until 31 May 2017, which bears only the player’s
signature and which stipulates that the player would be entitled to receive a
monthly remuneration of EUR 8,000 as from 1 July 2015 until 30 June 2017.
13.
Furthermore, the player sustained that he “started playing with Club A” for six
months, despite the alleged contract being not respected as Club A “did not want
to hear about my salary of EUR 8,000”.
14.
Moreover, the player affirmed that he “reached out to the real director of Club A,
who told him that the contract he signed was fake and that Club A had never
appointed a person for his transfer and that he should go home”. In this regard, the
player held that he decided to go home without formally terminating the contract
because “it was fake and not counter-signed by the President of Club A”.
15.
Furthermore, the player affirmed that, “after three weeks”, he has been asked by
Mr XX, who allegedly “has been presented by Mr Y as the director of Club A
although he was not”, to come back in Country B and find an amicable solution.
What is more, the player affirmed that, upon his arrival in Country B, the player’s
passport was confiscated by Mr XX and he was asked by the latter to sign the
statement dated 19 August 2016 in exchange of his passport (cf. point I./6. above).
16.
The player further stated that, after leaving Country B, he joined the club of
Country D, Club J (hereinafter: Club J or the Respondent 4), “as an amateur”, since,
according to the player, the Football Association of Country B “refused to issue the
ITC”.
17.
The player also affirmed that, “Club A’s use of forged documents is damaging his
carrier”.
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 4 of 16
18.
Equally, the player confirmed that he never signed any contract with Club G.
19.
In its reply, Club E explained having been informed that, “Club J wanted to transfer
a good international Country D player” and affirmed that both parties started
negotiating for the possible transfer of the player at the beginning of September
2016.
20.
In this context, Club E stated that on 16 September 2016, it concluded a transfer
agreement (hereinafter: the transfer agreement) with Club J for the definitive
transfer of the player, from Club J to Club E. In this regard, Club E submitted the
relevant transfer agreement dated 16 September 2016 and signed by Club J, Club E
and the player.
21.
Under article 2 of the transfer agreement, Club E undertook to pay Club J the
amount of USD 30,000, which was payable “two to three weeks after the issuance
of the ITC” as well as a sell-on fee amounting to 15% over any subsequent transfer
of the player.
22.
Furthermore, Club E stated that, on 29 November 2016, the parties signed an
addendum to the transfer agreement, whereby they agreed to reduce the amount
due as transfer compensation from USD 30,000 to [currency of Country F] currency
of Country F 160,000. In this regard, Club E provided a copy of the addendum to the
transfer agreement dated 29 November 2016 and signed by Club J, Club E and the
player.
23.
Furthermore, Club E referred to article 2 of the addendum to the transfer
agreement, which stipulates that, “Club J and the player disengage Club E from any
financial or administrative liability in relation with the player’s former club, Club A,
and shall face together all the consequences before the competent bodies” [free
translation from French].
24.
In this context, Club E affirmed that it entered the relevant transfer instruction in
the Transfer Matching System (TMS) and that the ITC was issued by the Football
Federation of Country D (Football Federation of Country D) which, according to
Club E, demonstrates that the player was transferred from Club J to Club E.
25.
Moreover, Club E affirmed that Club J signed on 29 November 2016 a “discharge”,
confirming that it had received the amount of currency of Country F 160,000 and
that [quoting from the discharge] “this money will be used to solve the dispute
between the player and his former club, Club A”. In this regard, Club E provided a
copy of the discharge dated 29 November 2016 and signed by Club J.
26.
Furthermore, Club E affirmed that it never received the correspondence dated 9
October 2016 from Club A (cf. point I./8. above) and that it had been told by the
player, Club J and the TMS Manager of the Football Federation of Country D that
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 5 of 16
“the contract signed by the player with Club A was fake” and that an agreement
had been found with Club A.
27.
In its reply, Club G rejected the claim of Club A and explained that, “Club G is not a
party involved in this dispute, as the club in fact didn’t sign a contract with the
player, in contrary to what has been circulated in media”.
28.
After having been invited by FIFA to comment on the present case, Club J stated
that it was the player who contacted Club J in the first place.
29.
Furthermore, Club J affirmed that, “considering everything that happened in
Country B”, it allegedly requested via the Football Federation of Country D, by
means of a letter dated 26 September 2016, the ITC of the player from the Football
Association of Country B. Moreover, Club J stated that, “in absence of a reply from
the Football Association of Country B, Club J proceeded to provisionally register the
player via the Football Federation of Country D”. In this regard, Club J claimed that
it did not violate art. 17 par. 2 and 4 of the FIFA Regulations.
30.
Moreover, Club J confirmed that the player was indeed transferred to Club E and
affirmed that “Club A provided FIFA with forged documents”.
31.
Subsequently, Club A submitted additional comments on the response of the player,
Club E, Club G and Club J. In this regard, Club A affirmed that the contract signed
with the player “was registered in the Football Association of Country B and in
order to make this possible, the player’s signature must be recognized in person”.
Furthermore, Club A enclosed a document titled “online registration of the acts of
lawyers”, which was executed on 1 February 2016 and stipulates that, “Dr X, lawyer,
recognizes the signature of Player C made by the same in his presence, whose
identity was verified by the display of the identification document referred to
above, signing made on the attached contract”.
32.
Furthermore, Club A reaffirmed that the player’s statement dated 19 August 2016
had also been certified by an official notary (cf. point I./6. above).
33.
Moreover, Club A held that Club J registered the player at the Country D Football
Federation as an amateur and that “the issuance of the ITC for an amateur is made
out of the TMS”. According to Club A, “Club J avoided to send the request via TMS
because it knew that the ITC issuance will be refused as the player was registered
with Club A”.
34.
In this regard, Club A affirmed that the Football Association of Country B never
received the correspondence dated 26 September 2016 allegedly sent by the
Football Federation of Country D and held that “no proof of sending was attached
to this letter because in fact such letter was never sent”. According to Club A, this
information was confirmed by the Football Association of Country B. In this context,
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 6 of 16
the Football Association of Country B sent a correspondence dated 23 November
2017 to FIFA stating that it “did not received the request for the international
transfer certificate of the player C”.
35.
Club A further affirmed that, “by using this fraudulent strategy, the Football
Federation of Country D was able to issue the ITC without using the TMS nor
requesting it directly from the Federation of Country B”. In this regard, Club A
stated that two months later, “this fraud allowed the issuance by the Football
Federation of Country D of the player’s ITC to the Federation of Country F, this
allowing the transfer of the player to the club of Country F Club E”. In this context,
Club A stated that “Club J in collusion with the player and the Country D Football
Federation did a circumvention of RSTP Annex 3” and stated that “Club J shall be
ordered to pay compensation”.
36.
Finally, Club A asked FIFA to take into consideration the value of the player’s
contract with Club E for the calculation of the compensation allegedly due to Club
A.
37.
In their final comments, the player and Club J reiterated their initial positions.
38.
Despite having been invited to do so, Club E and Club G did not submit any final
comments.
39.
According to the information on file and contained in TMS, the player signed an
employment contract with Club E on 16 September 2016, valid from 17 September
2016 until 30 June 2020, providing for the payment of a monthly salary of currency
of Country F 10,000 as well as signing on fees of i) currency of Country F 650,000 for
the 2016/2017 sporting season ii) currency of Country F 630,000 for the 2017/2018
sporting season iii) currency of Country F 680,000 for the 2018/2019 sporting season
and iv) currency of Country F 680,000 for the 2019/2020 sporting season.
40.
In addition, an addendum to said contract was signed on 12 October 2016, which
stipulates that i) the signing on fee for the 2016/2017 sporting season will be
reduced to the amount of currency of Country F 320,000 ii) the signing on fee for
the 2017/2018 sporting season will be reduced to the amount of currency of Country
F 550,000).
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect,
the Chamber took note that the present matter was submitted to FIFA on 21
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 7 of 16
February 2017. Consequently, the 2017 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. art. 21 of
the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition June 2018), it is
competent to decide on the present litigation, which concerns an employmentrelated dispute with an international dimension between a club of Country B, a
player of Country D, a club of Country F, a club of Country H and a club of Country
D.
3.
Furthermore, the DRC analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition June 2018) and considering that the present matter was submitted to FIFA
on 21 February 2017, the 2016 edition of said Regulations (hereinafter: the
Regulations) is applicable to the present matter as to the substance.
4.
Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence, which it considered for the
assessment of the matter at hand. In particular, the Chamber recalled that, in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the TMS.
5.
From the outset, the DRC noted that, from the allegations and arguments presented
by the parties involved in the present matter, in order to be able to establish
whether, as claimed by Club A, a breach of contract had been committed by the
player, it should first of all pronounce itself on the issue of the validity of the
contract signed by the player with Club A on 29 January 2016, i.e. whether said
document consists in a valid and binding employment contract between Club A and
the player.
6.
In this context, the DRC underlined that the player did not challenge having signed
the contract on 29 January 2016, but rather referred to a different contract dated
26 February 2015, he alleged having concluded with Club A, in accordance with
which he allegedly would have been entitled to a monthly remuneration of EUR
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 8 of 16
8,000. In this regard, the Chamber noted that the player affirmed that he never
received a counter-signed copy of said different contract. Moreover, the Chamber
recalled that, according to the player, the “real Director of Club A” allegedly told
him that said different contract was “fake” and that “he should go home”.
7.
On this point, the DRC noted that Club A argued that the contract dated 29 January
2016 and signed by both parties had been registered with the Football Association
of Country B and had been duly authenticated by a qualified lawyer in Country B
who certified that “[he] recognizes the signature of [the player] made by the same
in his presence, whose identity was verified by the display of the identification
document referred to above, signing made on the attached contract”. In this
regard, the DRC noted that Club A provided a copy of the original certification
drafted in Spanish as well as its translation into English.
8.
Moreover, the members of the DRC pointed out that the copy of the alleged
contract dated 26 February 2015 provided by the player lacks Club A’s signature.
Consequently, the Chamber decided not to take into account this document and
rejected the player’s argumentation in this regard.
9.
At this stage, the members of the Chamber deemed appropriate to remark that the
validity of the contract at the basis of the present claim (i.e. the contract dated 29
January 2016), which was signed by the player and by Club A, and which is also
available in the Transfer Matching System (TMS) had never been disputed by the
player. In fact, the members of the Chamber wished to emphasise that the player
admitted having played for six months for the club without challenging the
authenticity of said contract.
10.
On account of all of the above, the members of the Chamber unanimously
concluded that a valid and binding employment contract had been entered into by
and between the player and Club A on 29 January 2016.
11.
Having established that a valid and legally binding employment contract had been
in force between the player and Club A, the Chamber went on to analyse as to
whether such contract had been breached and, in the affirmative, which party is to
be held liable for such breach.
12.
In this context, the Chamber deemed fit to recall the legal principle of the burden
of proof contained in art. 12 par. 3 of the Procedural Rules, in accordance with
which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof.
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 9 of 16
13.
Applying the aforementioned legal principle to the situation at hand, the Chamber
reverted to the facts at the origin of the matter at hand and carefully analysed the
documentation submitted by the parties.
14.
In this respect, the DRC first started by recalling that the player and Club A had
signed an employment contract valid as from 2 February 2016 until 30 June 2018, in
accordance with which the player was entitled to receive a remuneration of EUR
3,975 for the 2015-2016 sporting season, EUR 9,540 for the 2016-2017 sporting
season and EUR 9,540 for the 2017-2018 sporting season.
15.
The members of the Chamber further acknowledged that Club A claimed that, after
having concluded a contract with it and after having played for six months with it,
the player left the club abruptly in August 2016.
16.
Furthermore, the DRC noted that, according to Club A, the player, by means of a
written statement dated 19 August 2016 and certified by an official notary, stated
that he “refused to train and play or carry on any activity for [Club A] because he
did not have the psychological conditions to do so”. In this context, the Chamber
observed that Club A affirmed that the player left the club and Country B after
signing said document.
17.
Moreover, the DRC noted that Club A argued that “it was unable to contact [the
player] personally or by phone” and that it became aware that the player signed a
contract with Club E. What is more, Club A held that it put both the player and Club
E in default of payment of EUR 190,000 as “compensation for breach of contract”,
however, to no avail. In addition, the Chamber noted that Club A alleged that the
player was subsequently transferred to Club G and explained that it had also put
said club in default of payment, to no avail.
18.
In this context, Club A claimed that the player breached the contract by leaving the
club without any valid reason and, subsequently, by signing an employment
contract with Club E and, allegedly, with Club G. On such basis, Club A deemed that
the player shall be sentenced to pay compensation for breach of contract to Club A
in the total amount of EUR 176,080, as described in point I./10 above. The members
of the Chamber further acknowledged that Club A submitted that the player’s
alleged new clubs, i.e. Club E and Club G, shall be jointly liable for the payment of
the compensation for breach of contract to be paid by the player to Club A.
19.
In continuation, the Chamber duly took note of the player’s reply to the claim
lodged against him and, in particular, that the player explained that he left Country
B in August 2016 as he believed that no valid contract had been signed with the
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 10 of 16
club of Country B since the “real Director of Club A” allegedly told him that said
contract was “fake” and that “he should go home”.
20.
Furthermore, the DRC observed that the player stated that he indeed started
playing with Club A for six months, despite the alleged contract not being respected
as Club A “did not want to hear about my salary of EUR 8,000”.
21.
In addition, the members of the DRC equally noted that the player affirmed that he
was forced to sign the statement dated 19 August 2016 and that he left Country B
and subsequently joined as an amateur the Country D club Club J. Moreover, the
player stated that he never signed any contract with Club G.
22.
In continuation, the Chamber duly took note of Club E’s reply to the claim, in
particular, that Club E stated that on 16 September 2016, it concluded a transfer
agreement with Club J for the transfer of the player, in accordance with which Club
E undertook to pay to Club J the amount of USD 30,000, as described in point I./21.
above.
23.
Furthermore, the Chamber noted that Club E stated that an addendum to the
transfer agreement had also been signed, which provided in its art. 2 that “Club J
and the player disengage Club E from any financial or administrative liability in
relation with the player’s former club, Club A, and shall face together all the
consequences before the competent bodies”.
24.
Moreover, Club E further affirmed that Club J signed on 29 November 2016 a
“discharge”, confirming that it had received the amount of currency of Country F
160,000 and that [quoting from the discharge] “this money will be used to solve the
dispute between the player and his former club, Club A”.
25.
In continuation, the members of the DRC took note that Club G rejected the claim
of Club A and explained that it “is not a party involved in this dispute as the club in
fact did not sign a contract with the player, [contrary to] what has been circulated
in the media”.
26.
Furthermore, the Chamber observed that Club J, for its part, alleged that it was the
player who contacted Club J in the first place and that “considering everything that
happened in Country B”, it allegedly requested from the Football Association of
Country B the ITC of the player but “in absence of a reply from the Football
Association of Country B, Club J proceeded to provisionally register the player via
the Football Federation of Country D” as an amateur. Furthermore, the DRC noted
that Club J affirmed that the player was indeed transferred to Club E in September
2016 and affirmed that “Club A provided FIFA with forged documents”.
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 11 of 16
27.
With the above in mind, the DRC considered that it had remained uncontested that
the player was under contract with Club A and played with it for six months and
that, in August 2016, he left Club A and went to Club J.
28.
Taking all of the above into account, the Chamber held that the player had failed to
prove that Club A had authorised him to definitely leave the club and subsequently
sign an employment contract with a new club. As a consequence thereof, the
Chamber concluded that the player had breached the employment contract without
just cause in August 2016, by leaving Club A without authorisation. What is more,
the Chamber deemed that the player did not provide any valid reason which could
justify the termination of the contract.
29.
On account of the above, the DRC was of the view that the player unilaterally
terminated the contract without any valid reason and, consequently, is to be held
liable for the early termination of the employment contract without just cause.
30.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just
cause by the player.
31.
As a consequence of the aforementioned conclusion, the DRC established that, in
accordance with art. 17 par. 1 of the Regulations, the player is liable to pay
compensation to Club A. Furthermore, in accordance with the unambiguous
contents of art. 17 par. 2 of the Regulations, the Chamber established that the new
club shall be jointly and severally liable for the payment of such compensation. In
this respect, the Chamber was nonetheless eager to point out that the joint liability
of the new club is independent from the question as to whether the new club has
induced the contractual breach. This conclusion is in line with the well-established
jurisprudence of the Chamber and has been confirmed by CAS.
32.
With regard to the identity of the new club, the Chamber duly considered that the
present matter is not straightforward in view of the specific circumstances of the
case and required a thorough examination in order to determine the identity of the
new club for the purpose of art. 17.2 of the Regulations.
33.
Moreover, the DRC recalled that it remained undisputed that, after leaving Club A
in August 2016, the player decided to go back to his home country and joined, as an
amateur, Club J.
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 12 of 16
34.
In this regard, the DRC recalled that Club E argued that it cannot be considered as
the new club since the player was transferred from Club J to Club E for an initial
transfer compensation of USD 30,000 on 16 September 2016.
35.
In addition, the Chamber referred once again to art. 12 par. 3 of the Procedural
Rules and observed that Club J failed to submit any proof of notification of the ITC
request allegedly sent by the Football Federation of Country D to the Football
Association of Country B on 26 September 2016.
36.
In this context, the DRC was of the firm opinion that the registration of the player
as an amateur by Club J was in circumvention of FIFA’s Regulations, in view of the
fact that Club J did not provide convincing evidence that it tried to register the
player as a professional. What is more, based on the documentation on file and
according to the information contained in the TMS, the DRC pointed out that prior
to signing a contract with Club A, the player already had a professional contract
with Club J.
37.
Moreover, the DRC underlined that Club J itself submitted to the file a “discharge”,
which carries the club’s letterheads, signature and official stamp, and which
stipulates that the money received from Club E for the transfer of the player “will
be used to solve the dispute between the player and his former club, Club A”.
38.
In continuation, the DRC was of the firm opinion that, in the sense of art. 17 par. 2
of the Regulations and taking into account the specificity of the case at hand, the
new club should be understood as the club benefitting directly from the breach of
the contract by the player.
39.
With that in mind, the members of the Chamber reached a consensus that Club J
was the club which benefitted directly from the breach of contract of the player.
Moreover, the DRC was comfortably satisfied with this conclusion by the fact that,
one month after the registration of the player, Club J transferred the player to Club
E against an initial transfer compensation of USD 30,000.
40.
Consequently, and in view of the abovementioned considerations, the members of
the DRC concluded that Club J is to be considered the new club of the player in the
sense of art. 17 par. 2 of the Regulations.
Having stated the above, the Chamber focussed its attention to 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 pointed out that, in accordance with art. 17 par.
1 of the Regulations, the amount of compensation shall be calculated, in particular
and unless otherwise 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
41.
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 13 of 16
further objective criteria, including in particular the remuneration and other
benefits due to the player under the existing contract and/or the new contract(s),
the time remaining on the existing contract up to a maximum of five years as well
as the fees and other expenses paid or incurred by the former club (amortised over
the term of the contract) and whether the contractual breach falls within a
protected period. The DRC recalled that the list of objective criteria is not exhaustive
and that the broad scope of criteria indicated tends to ensure that a just and fair
amount of compensation is awarded to the prejudiced party.
42.
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
which the parties had beforehand agreed upon an amount of 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.
43.
As a consequence, the members of the Chamber determined that the amount of
compensation payable in the case at stake had to be assessed in application of 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. In this regard, the
Dispute Resolution Chamber stated beforehand that each request for compensation
for contractual breach has to be assessed by the Chamber on a case-by-case basis
taking into account all specific circumstances of the respective matter.
44.
Consequently, in order to estimate the amount of compensation due to Club A in
the present case, the Chamber determined that an objective criteria is the market
value of the player at the time of termination. In this regard, the DRC recalled that
the player terminated the contract with Club A in August 2016. The DRC further
recalled that, on 16 September 2016, i.e. a month after the termination, the player
was transferred from Club J to Club E for an initial amount of USD 30,000.
45.
In this regard, the members of the Chamber were of the unanimous opinion that
the amount of money a club is committing to pay for the transfer of the player a
month after the breach occurred, can be considered an objective indicator of the
market value of the player at the date of breach.
46.
Taking into account this objective criteria and the specific facts of the matter at
hand, the Dispute Resolution Chamber decided that the total amount of USD 30,000
was to be considered a reasonable and justified compensation for breach of
contract in the case at hand.
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 14 of 16
47.
As a consequence, on account of all of the above-mentioned considerations, the
Chamber decided that the player must pay the amount of USD 30,000 to the
Claimant as compensation for breach of contract. Furthermore, in accordance with
art. 17 par. 2 of the Regulations, Club J is jointly and severally liable for the payment
of the relevant compensation.
48.
In addition, taking into consideration Club A’s request, the Chamber decided that
the player must pay to Club A interest of 5% p.a. on the amount of compensation
as of the date on which the claim was lodged, i.e. 21 February 2017, until the date
of effective payment.
49.
The Chamber concluded its deliberation by rejecting any further claim lodged by
Club A.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent 1, Player C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, compensation for breach of contract in the
amount of USD 30,000, plus 5% interest p.a. on said amount as of 21 February 2017
until the date of effective payment.
3.
The Respondent 4, Club J, is jointly and severally liable for the payment of the
aforementioned amount.
4.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. 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.
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
Page 15 of 16
6.
The Claimant is directed to inform the Respondent 1 and the Respondent 4
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 m otiv ated decis ion (legal remedy):
According to art. 58 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
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl. CAS directives
Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country H / Club J, Country D
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