Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 May 2014,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club,
Club A, country B
as Claimant
against the player,
Player C, country B
as Respondent 1
and the club,
Club D, country E
as Respondent 2
and the club,
Club F, country E,
as Respondent 3
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 17 November 2009, player from country B, Player C (hereinafter: player or
Respondent 1) and the club from country B, Club A (hereinafter: Club A or
Claimant) signed an employment contract valid for two sporting seasons,
reportedly starting as of 17 November 2009 and valid until 31 July 2011.
2.
According to the contract, the player was inter alia entitled to the following
remuneration:
a signing-on fee in the amount of 5,000 ;
a monthly remuneration of 300;
a monthly training allowance in the amount of 100;
3.
According to the Football Association of country B, the sporting season 2010/11
in country B came to an end on 31 July 2011.
4.
On 12 January 2010, a loan agreement was signed between Club A and the club
from country E, Club D (hereinafter: Club D or Respondent 2). Said agreement
provides that the player is to return to Club A at the end of the sporting season
2009/10.
5.
On 13 January 2010, an employment contract was signed between the player
and Club D, valid for one sporting season.
6.
According to the Football Association of country E, the sporting season 2009/10
in country E came to an end on 15 May 2010.
7.
In this respect, an International Transfer Certificate (ITC) dated 21 January 2010
was issued by the Football Association of country B to the Football Association
of country E.
8.
Club A explained that Club D asked for an extension of the loan of the player
until 31 May 2011.
9.
In this respect, Club A alleged that a loan fee in the amount of USD 40,000 was
orally agreed upon between Club A and Club D and that the player was loaned
for another year.
10. Club A asserted that since Club D did not pay the above-mentioned loan fee, it
sent a letter to the Football Association of country E in which Club A asked it to
ensure that Club D proceeds to the payment of the loan fee and, should Club D
not pay, that the player returns to Club A. Reportedly, Club D did not react to
said letter.
Club A, country B / Player C, country B /
Club D, country E / Club F, country E
2/9
11. On 17 January 2011, the player and the club from country E, Club F (hereinafter:
Club F or Respondent 3), signed an employment contract, entering into force on
the same date and expiring on 31 May 2015.
12. Club A allegedly discovered that the player had been transferred by Club D to
Club F.
13. In view of the above, on 16 February 2011, Club A sent a letter to Club D, Club F
and the player in which it complained that (i) Club D had still not paid the loan
fee, (ii) Club D transferred the player to Club F without having informed Club A
or having obtained Club A’s consent, (iii) the player is still bound by a valid
contract to Club A until 31 July 2011 and (iv) Club F accepted to hire a player
who is (a) in breach of contract during the protected period towards Club A,
and (b) who was transferred from a club that was only benefiting of his services
on a loan basis.
14. Furthermore, Club A referred the clubs and the player to the consequences that
the situation at hand would trigger based on art. 17 of FIFA’s Regulations on
the Status and Transfer of Players and offered to negotiate in view of reaching
an amicable settlement.
15. By means of a letter dated 22 February 2011 addressed to Club A, Club D
rejected Club A’s claim and specified that Club D did not sign any agreement
with Club A in relation to the player.
16. On 3 March 2011, Club A lodged a claim for breach of contract and inducement
to breach of contract before FIFA against the player, Club D, and Club F,
respectively.
17. In its claim, the club held that by joining Club F, the player unilaterally
terminated the employment contract he had with Club A, during the protected
period, and without any just cause.
18. According to Club A, the player is therefore to be sentenced to pay
compensation for breach of contract and Club D and Club F shall be jointly and
severally liable for the payment of said compensation.
19. Equally, Club A held that a four months restriction to play in official matches
has to be imposed on the player.
20. In continuation, Club A addressed Club D’s conduct, referring to art. 41 of the
Swiss Civil Code, which reportedly sets forth that “anyone who caused any illicit
damage to someone, intentionally, with imprudence or negligently, must repair
that damage.”
Club A, country B / Player C, country B /
Club D, country E / Club F, country E
3/9
21. Likewise, Club A stressed that not only Club D acted in bad faith, as it
transferred a player who was registered with it on a loan basis to Club F without
obtaining Club A’s consent, but also received a transfer compensation from Club
F, which entirely should be reallocated to Club A. In this respect, Club A referred
to art. 61 of the Swiss Civil Code, which reportedly stipulates “who, without any
justified cause, is enriched him damaging the asset of a third, I owed to give
back that enrichment.”
22. As to the consequences of the situation at hand, Club A highlighted that the
amount of compensation it is entitled to receive shall reflect the gravity of the
facts at hand and take into account the player’s and the clubs’ bad faith as well
as the fact that the breach occurred during the protected period.
23. In view of the above, and subject to the amount of the transfer fee stipulated in
the agreement signed between Club D and Club F in relation to the player’s
transfer, Club A requested to be granted compensation of not less than USD
300,000, plus 5% interest per year calculated as from the date on which Club A
lodged its claim before FIFA.
24. Finally, Club A held that as the clubs induced the player to breach the contract
signed with Club A during the protected period, both clubs shall be banned
from registering any new player, either nationally or internationally, for two
registration periods.
25. Club A explained that no request for the issuance of the player’s International
Transfer Certificate (ITC) was made in relation to the alleged second loan of the
player, allegedly since the player was already registered in country E, with Club
D.
26. On 11 June 2010, the Football Association of country B sent a letter to the
Football Association of country E in which the Football Association of country B
requested the Football Association of country E to “release” the player along
with the ITC, so that the player could return to Club A.
27. In his answer to the claim, the player confirmed that, in 2009, he signed a
contract for two sporting seasons with Club A and that after two months, he
was loaned for six months to Club D for free.
28. The player explained that in June 2010, i.e. after the end of the loan and whilst
the player was back in country B, his agent contacted him and asked him to
return to country E to continue to play for Club D. According to the player, his
agent had spoken with Club A, which agreed to such arrangement. The player
then signed with Club D another contract valid for one season with an
extension option.
Club A, country B / Player C, country B /
Club D, country E / Club F, country E
4/9
29. The player stated in this respect that Club D’s president assured him that he was
in contact with Club A in connection with this arrangement.
30. The player further explained that his agent then informed him of Club F’s
interest. In this respect, the player pointed out that he informed his agent that,
since the formalities between Club A and Club D had not all been finalized, Club
F should rather contact Club A and not discuss with Club D. In particular, the
player stressed that since, to his knowledge, Club D had not yet paid Club A, he
was still bound to Club A.
31. The player stated that when he arrived in Club F, he asked that Club A should
be contacted, which was reportedly done via the player’s agent. Additionally,
Club A’s president would have told the player that the player’s agent had
informed Club A that Club D was ready to exercise the option to transfer the
player from Club A to Club D on a definitive basis.
32. As it appeared to the player that all involved parties, including Club A, had
agreed and that Club F would pay a fee to Club A and Club D in order to
acquire the player’s services, on 17 January 2011, the player signed an
employment contract with Club F valid until 31 May 2015.
33. The player held that he was contacted by Club A after a few matches, who
reproached him having joined Club F whereas Club A allegedly had not agreed
to release him.
34. Club F reportedly told the player that it had paid USD 100,000 to Club D and
USD 40,000 to Club A, i.e. USD 140,000 in total, in connection with his services.
35. In spite of having been invited to do so, Club D did not present any response to
Club A’s claim.
36. In its reply to the claim, Club F asserted that it always acted lawfully and in good
faith.
37. In particular, Club F stressed that the player was transferred to it from Club D
and that it paid the amount of USD 105,000 to Club D, an amount it deemed
reasonable in view of the definitive acquisition of the player’s services. It also
held that the Football Association of country E approved the transfer.
38. In this respect, Club F pointed out that in the relevant transfer contract, it is
stipulated that “Club D declares and undertakes that it holds 100% of the rights
of the player’s player card and/or any other sporting rights and/or federative
rights connected with the player and that there is no third party that holds such
rights as stated.”
Club A, country B / Player C, country B /
Club D, country E / Club F, country E
5/9
39. In continuation, Club F explained that the aforementioned transfer amount was
determined as a result of the fact that Club D would have said that it still had to
pay USD 30,000 to Club A for the player’s transfer and that it wanted to receive
USD 75,000 for itself. Club F further explained that it was agreed that it would
pay the full amount to Club D who, in turn, would transfer the relevant amount
to Club A.
40. Additionally, the club submitted an affidavit from the player’s agent in country
E who, inter alia, confirmed having intervened in the negotiations between
Club D and Club F in relation to the player’s transfer and that throughout said
negotiations, Club D had always claimed to be the sole owner of the “player’s
federative and sportive rights”.
41. In continuation, Club F submitted a copy of a letter dated 21 February 2011
issued by Club D, in which the latter confirmed that “[Club D] received from
[Club F] all of the money set forth between [the clubs]” and that “[Club F] does
not owe any amount to [Club D] or to any other party. Including the team from
country B that is suing [Club F].”
42. Finally, Club F held that should it have to pay compensation to Club A, it would
find itself having to pay twice for the player’s recruitment: a transfer fee on the
one hand and compensation for breach of contract on the other hand, which it
considers to be unjustified, in particular since it did not cause any damages to
Club A.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 3 March 2011. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 1 and 2 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012) 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 from country B, a player from
country B as well as two club from country E.
Club A, country B / Player C, country B /
Club D, country E / Club F, country E
6/9
3.
In continuation, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2012), and considering that the present claim was
lodged on 3 March 2011, 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, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasized 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 particular, the DRC noted that according to the Claimant, inter alia, the
Respondent 1 breached the employment contract he had signed with the
Claimant on 17 November 2009 by having joined the Respondent 3 without its
consent in January 2011.
6.
In this respect, the Chamber recalled that, according to the Claimant, the
Respondent 1 was only registered with the Respondent 2 on a loan basis, on the
basis of an oral agreement between the Claimant and the Respondent 2. Hence,
the three Respondents would not have been in a position to proceed to the
Respondent 1’s transfer from the Respondent 2 to the Respondent 3 without
the Claimant’s approval and, in, particular, the Respondent 1 was not in the
position to sign an employment contract with the Respondent 3 in January
2011.
7.
On the other hand, the DRC noted that for his part, the Respondent 1 inter alia
reported that on various occasions, within the framework of his transfer from
the Respondent 2 to the Respondent 3, the Claimant was informed of the
events that were taking place, to which it had agreed. In addition, the
Respondent 1 highlighted that the Claimant had agreed with his second move
to the Respondent 2.
8.
In addition, the DRC took note that, whereas the Respondent 2 had not replied
to the claim, the Respondent 3, for its part, inter alia claimed having lawfully
registered the Respondent 1 by means of a transfer contract signed with the
Respondents 1 and 2, specifying that the Respondent 2 always presented itself
as the club which was entitled to transfer the Respondent 1.
9.
In view of the allegations and arguments presented by the parties involved in
the present matter, the Chamber underlined that in order to be able to
establish as to whether, as claimed by Claimant, and contested by the
Club A, country B / Player C, country B /
Club D, country E / Club F, country E
7/9
Respondent 1, the Respondent 1 is to be held liable for breach of contract, it
should first focus its attention on the circumstances surrounding the second
registration of the Respondent 1 with the Respondent 2 after the Respondent 1
had returned to the Claimant following the end of the loan period in June 2010.
10. Indeed, the Claimant alleges that the Respondent 1 was registered for the
second time with the Respondent 2 on a loan basis at the time when the
Respondent 1 transferred from the Respondent 2 to the Respondent 3 and the
player signed an employment contract with the Respondent 3.
11. The Respondent 1, for his part, highlighted that he returned to country E to the
Respondent 2, after he had returned to country B following the end of the loan
period in June 2010, with the Claimant’s consent.
12. In continuation, the Chamber noted that according to the Claimant, the
conditions of the Respondent’s 1 alleged second loan to the Respondent 2 were
only agreed orally.
13. In view of the above, the Chamber deemed it relevant to refer to art. 12 par. 3
of the Procedural Rules, which sets forth that any party claiming a right on the
basis of an alleged fact shall carry the burden of proof. After careful study of
the documentation on file, the members of the DRC concluded that there was
no evidence on file demonstrating that the Respondent 1’s second move from
the Claimant to the Respondent 2 was on a loan basis.
14. Additionally, the Chamber highlighted that the Respondent 1, for his part, had
not declared that his returning to country E to join the Respondent 2 for the
second time was on a loan basis.
15. As a result, the Chamber held that in view of the above, it can only be
concluded that the Claimant consented to the Respondent 1’s second move to
the Respondent 2. In addition, the Chamber concurred that the burden of proof
lies with Club A to prove that the Respondent 1’s second move to the
Respondent 2 was on a loan basis, i.e. that the Respondent 1 had to return to
the Claimant.
16. With these considerations in mind, the Chamber found that the Claimant and
the Respondent 1 agreed upon an early termination of the employment
contract and that the Respondent 1 was not bound to the Claimant when he
signed an employment contract with the Respondent 3.
17. On account of all the above, the Chamber decided to fully reject the Claimant’s
claim.
*****
Club A, country B / Player C, country B /
Club D, country E / Club F, country E
8/9
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Club A, 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 A, country B / Player C, country B /
Club D, country E / Club F, country E
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