Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 June 2016,
in the following composition:
Geoff Thompson (England), Chairman
Carlos González Puche (Colombia), 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
as Respondent 1
and the club,
Club D, country E
as Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 17 October 2013, the player from country B, Player C (hereinafter: the
Respondent 1), born on 3 May 1986, and the club from country B, Club A
(hereinafter: the Claimant), signed a document titled “Sports Agreement”
(hereinafter: the Sports Agreement) valid as from 17 October 2013 until 17
October 2018.
2.
In accordance with the Sports Agreement, the Claimant obliged itself, inter
alia:
-
“to provide medical insurance to [the Respondent 1] during the [Sports
Agreement] term;
to pay an amount of USD 10,000 to [the Respondent 1] for each season
during the term of [Sports Agreement];
In addition, [the Claimant] will pay a monthly salary to [the Respondent
1] of USD 1000 during the term of this [Sports Agreement].”.
3.
Moreover, according to the Sports Agreement, the Respondent 1 “irrevocably
acknowledges that it has delegated to [the Claimant] exclusively the right to
negotiate on his behalf any potential transfer whether in country B or abroad
with any club that might be interested in signing the player at any point in
time. In case of breach of the above provision by [the Respondent 1], the latter
will be considered in breach of this entire agreement subjecting [the
Respondent 1] to compensate [the Claimant] financially and morally for the
damages caused”.
4.
According to art. 7 of the Sports Agreement, “The Football Association of
country B will be the only reference to hear any disputes related to the
interpretation or the execution of this agreement”.
5.
According, to the information in the Transfer Matching System (TMS), the
Respondent 1 signed an employment contract with the Club D from country E
(hereinafter: the Respondent 2), valid as from 23 July 2014 until 15 June 2015,
according to which he was entitled to receive a salary of USD 125,000 payable
as follows:
“40% from the total amount of the contract will be paid upon of
completing the contract procedures…;
30% from the total amount will be paid as a monthly salary….;
30% from the total amount of the contract will be paid at the end of
the above mentioned period.”.
Club A, country B / Player C, country B and Club D, country E
2/18
6.
On 27 September 2014, the Claimant lodged a claim in front of FIFA against
the Respondent 1 maintaining that the latter is to be held liable for breach of
contract without just cause, and requesting the payment of compensation in
the following amounts:
-
-
USD 200,000 “for the cost of replacing the player with a player of
similar value for the coming 4 seasons”;
USD 187,500 ”for the fee of permanent transfer of [the Respondent 1]
being 50% of the contractual value of the deal between the player and
[the Respondent 2], based on the value of the loan request made to
[the Claimant] in August;
USD 150,000 for the overall damage suffered…;
CHF 6,000 as legal fees.
7.
The Claimant further claimed that the Respondent 2 shall be held jointly and
severally liable for the payment of compensation, as it induced the Respondent
1 to terminate the Sports Agreement unilaterally.
8.
Moreover, the Claimant requested sporting sanctions to be imposed on the
Respondent 1 and the Respondent 2.
9.
In its claim, the Claimant sustained that at the end of the 2013/2014 season, it
suspected that “something was going on and it had received information that
[the Respondent 2] was inducing [the Respondent 1] amongst other two from
[the Claimant]”.
10.
The Claimant held that, on 1 August 2014, it sent a letter to the Respondent 2
“notifying it that it came to its knowledge that contracts with [the Respondent
1] were already signed and [the Respondent 1] was told to stay with [the
Respondent 2] and not to train nor join [the Claimant] hence induced by [the
Respondent 2] to terminate his valid contract with [the Claimant]”.
Additionally, the Claimant urged the Respondent 2 “to allow [the Respondent
1] to return to his original club with which, an agreement that binds [the
Respondent 1] for further 4 years is still valid”.
11.
In this respect, the Claimant maintained that the Respondent 2 asserted that
“their ITC will be given and they will be able to play in the League of country E
and that [the Claimant] cannot do anything to stop them”.
12.
Subsequently, the Claimant affirmed that, at the end of August 2014, it
received a request from the Respondent 2 in order to transfer the Respondent
Club A, country B / Player C, country B and Club D, country E
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1 on a loan basis for the 2014/2015 season, which according to the Claimant
stipulated a “yearly value” for the Respondent 1 of USD 125,000.
13.
In this respect, the Claimant argued that after it rejected the Respondent 2’s
offer, the Respondent 2 and the Respondent 1 concluded an employment
contract. The Claimant affirmed that this is a clear breach of art. 17 of FIFA’s
Regulations on the Status and Transfer of Players.
14.
The Claimant stressed that the same situation arose with two other members
of its squad, which has caused a substantial technical damage to it.
15.
In addition, the Claimant maintained that “the time [the Respondent 1]
trained with it, the fact that [the Respondent 1] has 4 years to play for it until
October 2018, and the loss of a potential transfer fee” should be taken into
account in the consideration for the compensation which the Claimant is
claiming.
16.
Moreover, the Claimant asserted that the Respondent 2 played a role in
inducing the Respondent 1 to breach the Sports Agreement, as “there is no
way [the Respondent 2] can deny its knowledge that [the Respondent 1] was
under contractual obligations with [the Claimant],…and cannot pretend [the
Respondent 1] was a free agent, since otherwise why would [the Respondent
2] sent a request for a transfer on loan basis at the end of August…?”.
17.
Furthermore, the Claimant held that sporting sanctions should be imposed on
the Respondent 1 and the Respondent 2, “especially with the aggravating fact
of the “theft” of 3 main players in one go, all induced by [the Respondent 2].”.
18.
In his reply to the Claimant’s claim, the Respondent 1 explained that, in 2001,
he signed a document that registered him with the Claimant “for life” (note:
free translation from French. The Respondent 1 referred to the term
“Signature a Vie”). The Respondent 1 further asserted that in 2008, he was
registered with Club F on the same basis and eventually, in 2012 returned to
the Claimant, which again registered him “for life”. In this respect, the
Respondent 1 stressed that when he started to play with the Claimant’s first
team, he did it based on said registration “for life” but without contract. In
particular, the Respondent 1 questioned how a player can play without a
contract if he is considered as professional.
19.
In continuation, the Respondent 1 alleged that, on 17 October 2013, the
Claimant forced him to sign the “Sports Agreement”, making the transfer of
his brother, Player G, to the Respondent 2 subject to its signature.
Club A, country B / Player C, country B and Club D, country E
4/18
20.
The Respondent 1 further pointed out that the document signed on 17
October 2013 is titled “Sports Agreement” and does not indicate that it is a
“labour contract, a professional contract or a contract as a professional”. In
addition, he questioned whether the remuneration stipulated in the Sports
Agreement is enough for him to be considered a professional in accordance
with art. 2 of the FIFA Regulations on the Status and Transfer of Players. In this
regard, the Respondent 1 submitted a copy of his contract with the
Respondent 2, and argued that the Sports Agreement should have complied
with the formalism the contract signed with the Respondent 2 in order to be
considered as a professional contract.
21.
Furthermore, the Respondent 1 explained that the Claimant accepted to loan
him to the Respondent 2 provided that it would receive 50% of the value of
the contract signed between the Respondent 1 and the Respondent 2. In this
respect, the Respondent 1 sustained that he proposed to give 25% of said
value to the Claimant, but the latter refused, which, according to the
Respondent 1, constituted the reason behind his departure to the Respondent
2.
22.
Moreover, the Respondent 1 alleged that the compensation claimed by the
Claimant is clearly disproportionate.
23.
Finally, the Respondent 1 maintained that his contract with the Respondent 2
was mutually terminated on 12 January 2015 due to the financial difficulties in
country E.
24.
The Claimant submitted its replica, in which it insisted on its previous
arguments and request for relief.
25.
In respect to the Respondent 1’s reply, the Claimant argued that the
Respondent 1’s reference to “Signature a Vie” or “Life time signature”, is
irrelevant to the matter at hand, since the type of signature and/or the
Respondent 1’s registration is an activity regulated by the Football Association
of country B, to which neither the Claimant, nor the Respondent 1, “could
have a say therein”.
26.
The Claimant sustained that the Sports Agreement signed between the
Respondent 1 and the Claimant should be considered an employment contract.
In this respect, the Claimant argued the following:
-
In the preamble of the Sports Agreement, the Respondent 1 declared
his intention to be engaged as a football player;
Club A, country B / Player C, country B and Club D, country E
5/18
-
-
The Respondent 1 signed a written contract, with a validity of 5 years,
therefore in line with applicable regulations;
The contract contains a remuneration of or around USD 22,000 p.a.,
therefore, the amounts are superior to the reasonable cost the
Respondent 1 would incur, considering that the Claimant is providing
medical insurance throughout the validity of the contract;
The remuneration of the contract is considered a high remuneration. In
this respect, the Claimant argued that the minimum salary in country B
is not more than USD 500 per month.
27.
Moreover, the Claimant held that the Respondent 1’s argument in respect to
him signing the contract under pressure and/or duress has to be rejected, as
the Respondent 1 failed to submit any proof of his allegations. The Claimant
further argued that every country and every league has its own dynamics and
economics, and in consequence, the Respondent 1’s argument that his contract
with the Claimant is not a professional one, while the one with the
Respondent 2 is, based on the difference in the remuneration, should also be
rejected.
28.
Furthermore, the Claimant stressed that:
-
“It never agreed to an extension of the loan agreement;
…It was clear that at the end of it [the Respondent 1] is to return to his
original club;
The ITC request does not mean [the Respondent 1] is free to terminate
his agreement during the protected period without consequences;
The grant of a temporary ITC…does not release [the Respondent 1]
from its liabilities towards [the Claimant];
The grant of a temporary ITC does not mean in any case that [the
Respondent 2] did not “steal” [the Respondent 1]…;
The fact remains that [the Respondent 1] breached his contract with
[the Claimant] and [the Respondent 2] clearly induced [the Respondent
1] to terminating the contract…”.
29.
In his duplica, the Respondent 1 argued that the fact that the Football
Association of country B recognised the possibility to register a player “for
life” evidences that football in country B has to be deemed amateur and not
professional.
30.
In addition, the Respondent 1 sustained that the Claimant failed to carry the
burden of proof regarding its assertion that he was entitled to a “high
remuneration”.
Club A, country B / Player C, country B and Club D, country E
6/18
31.
In continuation, the Respondent 1 pointed out that he did not leave the club
on a loan basis and therefore rejected the Claimant’s assertion regarding an
alleged extension of the loan.
32.
Even though invited to submit its position as to the Claimant’s claim, the
Respondent 2 failed to do so although being informed that in the absence of a
reply, a decision would be taken on the basis of the documentation and
information on file.
33.
According to the information in the Transfer Matching System (TMS), on 19
September 2014, the Respondent 2 was authorized by FIFA to provisionally
register the Respondent 1, after the decision taken by the Single Judge of
FIFA’s Players’ Status Committee on 16 September 2014.
II. Considerations of the Dispute Resolution Chamber
1.
First, 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
27 September 2014. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the 2014 and 2015 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. a) of the Regulations on the Status and Transfer
of Players, edition 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 club from country B, a player from
country B and a club from country E and where there has been an ITC request
and a claim from an interested party in relation to said ITC request.
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 (editions 2014, 2015
and 2016), and considering that the present claim was lodged on 27
September 2014, the 2014 edition of the Regulations on the Status and
Transfer of Players (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
Club A, country B / Player C, country B and Club D, country E
7/18
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 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. 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 the Respondent 2 had been given the
opportunity to reply to the claim submitted by the Claimant, but that the
Respondent 2 had failed to present its response in this respect. In this way, so
the Chamber deemed, the Respondent 2 renounced to its right of defence and,
thus, accepted the allegations of the Claimant.
6.
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, a breach of contract had been
committed by the Respondent 1, it should first of all pronounce itself on the
issue of the validity of the Sports Agreement, i.e. whether said document
consists in a valid and binding employment contract between the Claimant and
Respondent 1. In this regard, the Chamber took note that the Sports
Agreement was signed by and between the Claimant and the Respondent 1 on
17 October 2013.
7.
In this context, the DRC took note that the Respondent 1 did not challenge
having signed the document titled “Sports Agreement” on 17 October 2013.
However, the Chamber also noted that the Respondent 1 argued that the
Sports Agreement cannot be considered an employment contract, as according
to him, the remuneration stipulated therein is not enough for him to be
considered a professional. Moreover, the Respondent 1 further sustained that
the Sports Agreement does not indicate that it consists in a professional
contract.
8.
In this respect, the Chamber firstly deemed it important to examine the Sports
Agreement that the Claimant had submitted in the present proceedings, and
which was not contested by the Respondent 1.
9.
In this regard, the members of the Chamber duly noted that the Sports
Agreement contained a provision stipulating that the Respondent 1 was
Club A, country B / Player C, country B and Club D, country E
8/18
entitled to receive from the Claimant an amount of USD 10,000 per season as
well as a monthly salary of USD 1,000 and medical insurance. Thus, the
Respondent 1 was entitled to receive at least USD 22,000 per year.
10.
The DRC also noted that the Claimant sustained that the minimum wage in
country B amounts to “not more than USD 500 per months”, which remained
uncontested by the Respondent 1.
11.
In this context, the Chamber referred to art. 2 par. 2 of the Regulations, which
stipulates that “A professional is a player who has a written contract with a
club and is paid more for his footballing activity than the expenses he
effectively incurs. All other players are considered to be amateurs”.
12.
Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations
as well as the amounts payable to the player on the basis of the
aforementioned Sports Agreement, the members of the Chamber unanimously
concluded that it was beyond a doubt that the Respondent 1 was in fact paid
more for his footballing activity than the expenses he effectively incurred.
Equally, the second element contained in the relevant provision, i.e. the
existence of a written contract, is met as established in point II.8 above.
13.
The Chamber considered it opportune to stress that a player’s remuneration as
per the criteria set out in the above-mentioned art. 2 of the Regulations
constitutes the decisive factor in the determination of the status of the player
and that the legal nature or the designation or classification of the contract is
of no relevance in this regard. This has been confirmed by the CAS in its
decision CAS 2006/A/1177, whereby the Panel also emphasised that the
definition contained in the mentioned provision is the only ground to establish
a player’s status. For the sake of completeness, the Chamber pointed out that
according to the said decision the classification of a player made by the
association of his club is not decisive to determine the status of a player. And,
finally, that the remuneration in question may well fall short of a living wage,
but as long as it exceeds the expenses effectively incurred by the player, the
criterion of art. 2 of the Regulations is met.
14.
On account of the above, the Chamber decided to reject the argument of the
Respondent 1 that the Sports Agreement cannot be considered to be a
professional employment contract.
15.
The Chamber then reviewed the argument of the Respondent 1, who
maintained that he was coerced to sign the Sports Agreement, by making the
transfer of his brother to the Respondent 2 subject to the signature of the
Sports Agreement.
Club A, country B / Player C, country B and Club D, country E
9/18
16.
In this respect, the Chamber recalled the contents of art. 12 par. 3 of the
Procedural rules, according to which any party claiming a right on the basis of
an alleged fact shall carry the burden of proof. In this regard, the Chamber
deemed that the Respondent 1 had not presented any conclusive evidence,
which would demonstrate the coercion to sign the Sports Agreement.
Moreover, the Chamber was eager to refer to its longstanding and wellestablished jurisprudence and emphasised that a party signing a document of
legal importance without knowledge of its precise contents, as a general rule,
does so on its own responsibility.
17.
Subsequently, the Chamber noted that the Respondent 1 held that the Sports
Agreement cannot be considered an employment contract. In this regard, the
DRC noted that the Respondent 1 argued that the Sports Agreement lacks the
formalities of an employment contract, as opposed to the contract signed with
the Respondent 2.
18.
Having stated the aforementioned, the Chamber highlighted that, in order for
an employment contract to be considered as valid and binding, apart from the
signature of both the employer and the employee, it should contain the
essentialia negotii of an employment contract, such as the parties to the
contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee, i.e. respectively, the
Claimant and the Respondent 1.
19.
After a careful study of the document titled “Sports Agreement”, the Chamber
concluded that all such essential elements are included in the pertinent
employment contract. In particular, the members of the Chamber referred to
the fact that the contract establishes that the Respondent 1 has to render his
services as a football player to the Claimant during a fixed period of time, and
that, in exchange, the Claimant has to pay to the Respondent 1 a staggered
remuneration.
20.
On account of the above and on the basis of the applicable Regulations, the
Chamber came to the firm conclusion that the arguments of the Respondent 1,
cannot be upheld and that the document titled “Sports Agreement” signed by
and between the Claimant and the Respondent 1, on 17 October 2013, was a
valid employment contract binding the parties as from said date until 17
October 2018.
21.
Having so found, the Chamber followed its analysis and turned its attention to
the question of the alleged breach of contract without just cause by the
Respondent 1.
Club A, country B / Player C, country B and Club D, country E
10/18
22.
In this respect, the Chamber was eager to highlight that based on the parties’
respective statements and the documentation available on file, it was
undisputed that the Respondent 1 signed an employment contract with the
Respondent 2 covering the same period of time as the employment contract
the Respondent I signed with the Claimant. By acting as such, the Chamber
concurred that the Respondent 1 had acted in breach of the employment
contract concluded with the Claimant and is therefore to be held liable for said
breach.
23.
Given these circumstances, the Chamber recalled that, according to art. 18 par.
5 of the Regulations, if a player enters into an employment contract with
different clubs for the same period of time, the provisions of Chapter IV of the
Regulations regarding the maintenance of contractual stability between
professionals and clubs shall apply (cf. art. 18 par. 5 of the Regulations).
24.
In continuation, the members of the Chamber referred to item 7. of the
“Definitions” section of the Regulations, which stipulates inter alia that the
protected period comprises “three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a
contract, where such contract is concluded after the 28th birthday of the
professional”. In this regard, the Chamber pointed out that given the facts of
the present case, the unjustified breach of contract by the Respondent 1 had
obviously occurred within the applicable protected period.
25.
The DRC established that, in accordance with art. 17 par. 1 of the Regulations,
the Respondent 1 is liable to pay compensation to the Claimant. Furthermore,
in accordance with the unambiguous contents of article 17 par. 2 of the
Regulations, the Chamber established that the Respondent 1’s new club, i.e.
the Respondent 2, shall be jointly and severally liable for the payment of
compensation. In this respect, the Chamber was eager to point out that the
joint liability of the Respondent 1’s 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 repeatedly confirmed by the CAS. Notwithstanding the
aforementioned, the Chamber recalled that according to art. 17 par. 4 sent. 2
of the Regulations, it shall be presumed, unless established to the contrary,
that any club signing a professional who has terminated his contract without
just cause has induced that professional to commit a breach. In any event, the
Chamber determined that it would attend to the question of the possible
inducement to breach of contract by the Respondent 2 at a later stage of its
Club A, country B / Player C, country B and Club D, country E
11/18
deliberations, i.e. after having discussed the issue of the compensation due to
the Claimant.
26.
In this context, the Chamber lent emphasis on the primacy of the principle of
the maintenance of contractual stability, which represents the backbone of the
agreement between FIFA/UEFA and the European Commission signed in March
2001. This agreement and its pillars represent the core of the former as well as
of the 2014 edition of the Regulations, which all stakeholders – including
player and club representatives – agreed upon in 2001.
27.
Above all, the Chamber was eager to point out that the measures provided for
by the above Regulations concerning in particular compensation for breach of
contract without just cause serve as a deterrent aimed at discouraging the
early termination of employment contracts by either contractual party and
that a lack of a firm response by the competent deciding authorities would
represent an inappropriate example towards all the football actors.
28.
In this respect, awarding compensation in favour of the damaged party has
proven to be an efficient means and has always found a widespread
acceptance since it guarantees that the fundamental principle of the respect of
the contracts is duly accounted for.
29.
Above all, it was emphasised that the criteria contained in art. 17 of the
Regulations are applied with the principle of reciprocity for clubs and players,
signifying that both clubs and professionals who are seen to have committed a
breach of contract without just cause will in all cases be subject to pay
compensation and, under specific circumstances, also be subject to the
imposition of sporting sanctions.
30.
Having stated the above, the Chamber focused 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 reiterated 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 further objective criteria, including in
particular the remuneration and other benefits due to the Respondent 1 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
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
Club A, country B / Player C, country B and Club D, country E
12/18
the broad scope of criteria indicated tends to ensure that a just and fair
amount of compensation is awarded to the prejudiced party.
31.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
compensation payable by the contractual parties 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.
32.
As a consequence, the members of the Chamber determined that the prejudice
suffered by the Claimant in the present matter had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
In this regard, the DRC emphasised 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, as well as the Chamber’s specific knowledge of the world of
football and its experience gained throughout the years.
33.
Consequently, in order to estimate the amount of compensation due to the
Claimant in the present case, the Chamber turned its attention to the
remuneration and other benefits due to the Respondent 1 under the contract
and the new contract(s), which criterion was considered by the Chamber to be
essential. In this context, the members of the Chamber deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC
to take into consideration both the contract and the 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(s).
34.
In this regard, the DRC established, on the one hand, that the employment
contract between the Claimant and the Respondent 1, signed on 17 October
2013, had been set to run as from that date and expire on 17 October 2018.
Since the breach occurred on 23 July 2014, the total value of his employment
agreement with the Claimant for the remaining contractual period, i.e. 51
months, amounts to USD 93,500. On the other hand, the members of the
Chamber established that the value of the new employment contract
concluded between the Respondent 1 and the Respondent 2 amounts to a
total of USD 531,250 for the period from the unilateral termination of the
contract by the Respondent 1 until its contractual expiry, i.e. from August 2014
to October 2018. On the basis of the aforementioned financial contractual
elements, the Chamber concluded that the average of remuneration between
Club A, country B / Player C, country B and Club D, country E
13/18
the contracts concluded by the Respondent 1 respectively with the Claimant
and the Respondent 2 over the relevant period amounted to USD 312,375.
35.
Having stated the above, the DRC recalled that the remuneration paid to him
by the Respondent 1’s new club(s) is particularly relevant insofar as it reflects
the value attributed to his services by his new club at the moment the breach
of contract occurs and possibly also provides an indication towards the
Respondent 1’s market value at that time. In this regard, the DRC took due
note that the Respondent 1 appeared to have increased his income
considerably by concluding an employment contract with the Respondent 2.
36.
Consequently, on account of the above-mentioned considerations, the
Chamber decided that the Respondent 1 must pay the amount of USD 312,375
to the Claimant as compensation for breach of contract. Furthermore, the
Respondent 2 is jointly and severally liable for the payment of the relevant
compensation (cf. point II.25 above).
37.
In continuation, the Chamber focused on the further consequences of the
breach of contract in question and, in this respect, addressed the question of
sporting sanctions against the Respondent 1 in accordance with art. 17 par. 3
of the Regulations. The cited provision stipulates that, in addition to the
obligation to pay compensation, sporting sanctions shall be imposed on any
player found to be in breach of contract during the protected period.
Furthermore, the Chamber recalled, once again, that art. 18 par. 5 of the
Regulations, which deals with the consequences of entering into more than
one contract covering the same time period, clearly states that a player shall be
subject to the provisions of Chapter IV of the Regulations regarding the
maintenance of contractual stability between professionals and clubs.
38.
With regard to the quoted provision, the Chamber emphasised that a
suspension of four months on a player’s eligibility to participate in official
matches is the minimum sporting sanction that can be imposed for breach of
contract during the protected period. This sanction, according to the explicit
wording of the relevant provision, can be extended in case of aggravating
circumstances. In other words, the Regulations intend to guarantee a
restriction on the player’s eligibility of four months as the minimum sanction.
Therefore, the relevant provision does not provide the possibility for the
deciding body to reduce the sanction under the fixed minimum duration in
case of mitigating circumstances.
39.
In this regard, the Chamber recalled that the breach of contract by the
Respondent 1 had occurred during the applicable protected period.
Consequently, the Chamber decided that, by virtue of art. 17 par. 3 of the
Club A, country B / Player C, country B and Club D, country E
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Regulations, the Respondent 1 had to be sanctioned with a restriction of four
months on his eligibility to participate in official matches.
40.
Finally, the members of the Chamber turned their attention to the question of
whether, in view of art. 17 par. 4 of the Regulations, the Respondent 1’s new
club, i.e. the Respondent 2, must be considered to have induced the
Respondent 1 to unilaterally terminate his contract with the Claimant without
just cause during the protected period, and therefore shall be banned from
registering any new players, either nationally or internationally, for two entire
and consecutive registration periods.
41.
In this respect, the Chamber recalled that, in accordance with the
aforementioned provision, it shall be presumed, unless established to the
contrary, that any club signing a professional player who has terminated his
previous contract without just cause has induced that professional to commit a
breach.
42.
Moreover, in consideration of the entire circumstances of the matter at hand,
in particular the timeline of events as well as the difference in remuneration
between the agreement and the contract signed between the Respondent 1
and the Respondent 2, the Chamber deemed that it had no other option but
to consider that the reason for which the Respondent 1 acted in breach of the
agreement was the fact that he had entered into an employment relationship
with the Respondent 2.
43.
In light of the aforementioned and given that Respondent 2 did not provide
any argumentation and documentation as to its possible non-involvement in
the Respondent I’s decision to unilaterally terminate his employment contract
with the Claimant, the DRC concluded that the Respondent 2 had not been
able to reverse the presumption contained in art. 17 par. 4 of the Regulations
and that, accordingly, the latter had induced the Respondent 1 to unilaterally
terminate his employment contract with the Claimant.
44.
In addition, the members of the Chamber wished to point out that in spite of
being aware of the existence of a contract between the Claimant and the
Respondent 1, fact that was confirmed by the loan offer for the Respondent 1
sent by the Respondent 2 to the Claimant at the end of August 2014, the
Respondent I disregarded this information and went ahead with the
Respondent 1’s registration process.
45.
In view of the above, the Chamber decided that in accordance with art. 17 par.
4 of the Regulations, the Respondent 2 shall be banned from registering any
new players, either nationally or internationally, for the two next entire and
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15/18
consecutive registration periods following the notification of the present
decision. On account thereof, in accordance with the fourth sentence of art. 17
par. 4, the club shall be able to register new players, either nationally or
internationally, only as of the next registration period following the complete
serving of the relevant sporting sanction.
46.
In conclusion, the DRC decided that the claim of the Claimant is partially
accepted and that the Respondent 1 has to pay to the Claimant USD 312,375 as
compensation for the unilateral termination of the contract without just cause
during the protected period. In this respect, the DRC also determined that the
Respondent 2 is jointly and severally responsible for the payment of the abovementioned amount of compensation to the Claimant.
47.
Furthermore, the Chamber decided that the Respondent 1 shall be sanctioned
with a restriction of four months on his eligibility to participate in official
matches.
48.
And finally, the Chamber established that the Respondent 2 shall be banned
from registering any new players, either nationally or internationally, for the
two next entire and consecutive registration periods following the notification
of the present decision.
49.
Moreover, as regards the claimed legal fees, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Chamber decided to reject the
Claimant’s request relating to legal fees.
50.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected.
Club A, country B / Player C, country B and Club D, country E
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent I, Player C, is ordered to pay to the Claimant within 30 days as
from the date of notification of this decision, compensation for breach of
contract in the amount of USD 312,375.
3.
The Respondent II, Club D, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
If the aforementioned amount is not paid within the above-mentioned time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
5.
The Claimant is directed to inform the Respondent 1 and the Respondent 2
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.
6.
A restriction of four months on his eligibility to play in official matches is
imposed on the Respondent 1. This sanction applies with immediate effect as of
the date of notification of the present decision. The sporting sanctions shall
remain suspended in the period between the last official match of the season
and the first official match of the next season, in both cases including national
cups and international championships for clubs.
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17/18
7.
The Respondent 2 shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive
registration periods following the notification of the present decision.
8.
Any further claims lodged by the Claimant are rejected.
*****
Note relating to the motivated decision (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
Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
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