Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 June 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (Netherlands), member
Zola Majav u (South Africa), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the player,
Play er 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 cas e
1.
On 19 August 2010, the Player of Country B, Player C (hereinafter: the Respondent 1 or
the player) and the Club of Country B, Club A (hereinafter: the Claimant or Club A)
concluded an employment contract (hereinafter: the first employment contract), valid as
from 19 August 2010 until 19 August 2015, as per which the player was entitled to
receive a monthly salary of 150,000.
2.
On 7 November 2011, the player and Club A concluded a new employment contract
(hereinafter: the second employment contract), valid as from 1 November 2011 to 13
July 2014, which replaced the first employment contract.
3.
In accordance with the second employment contract, the player was entitled to a
monthly salary of 200,000.
4.
Furthermore, art. 3.1.2. of the second employment contract stipulated that in case of its
early termination by the player, the latter had to pay to Club A an amount in Currency
of Country B equivalent to EUR 65,000,000 if the termination was followed by a transfer
of the player to a non-Club of Country B. Art. 3.3. of the second employment contract
further specified that the new club of the player was jointly responsible to pay the
relevant sum to Club A. As per the English translation of the “special sports
employment agreement / extra-clauses or explanation for the existing clauses”, dated
22 December 2011, “In case, during the agreement in force, there is a transaction that
aims at the negotiation by joint agreement between the club and the athlete for
definite transfer of the sport relationship of the athlete to other club, the economic
rights arising from the business will be paid to Club A, in the amount of 55%, TEISA, in
the amount of 5% and the remaining 40% to D.I.S. […]”.
5.
On 24 May 2013, Club A, the Club of Country E, Club D (hereinafter: the Respondent 2
or Club D), the player and the company, Company F represented by the Player’s Father
G (hereinafter: the father of the player) concluded a Memorandum of Understanding
(hereinafter: MoU) concerning the transfer of the player from Club A to Club D for the
sum of EUR 17,100,000.
6.
On 31 May 2013, Club A, Club D, the player and the father of the player, acting as
representative of the player and of the company, Company H, signed an agreement for
the transfer of the player from Club A to Club D (hereinafter: the transfer agreement)
with effect as from 29 July 2013, by means of which the latter undertook to pay to Club
A EUR 17,100,000, on 7 June 2013, as transfer fee.
7.
According to clause 3.3. of the transfer agreement, the transfer fee was to be
understood as the entire compensation payable to Club A for 100% of the player´s
federative and economic rights, including both those owned by Club A and those
owned by third parties (NB the original document is in Language J and Language K).
8.
In accordance with clause 4.2. of the transfer agreement, the player agreed not to
receive any payment in connection with his transfer to Club D and both Club A and Club
D undertook not to pay him any amount in this regard.
Club A, Country B / Player C, Country B / Club D, Country E
2
9.
Similarly, Company H agreed not to receive any payment in connection with the
transfer of the player to Club D and both Club A and Club D undertook not to pay to it
any amount in this regard (cf. clause 5 of the transfer agreement).
10.
Clause 8 of the transfer agreement specified that the parties had to keep its content
confidential. In case of non-compliance, the same clause provided for an unspecified
amount of compensation to be paid by the party at fault.
11.
Clause 9 of the transfer agreement (hereinafter: the arbitration clause) included a
jurisdiction clause in favour of FIFA as first instance, in accordance with art. 22 of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations), and
CAS as the appeal body. The same clause provided for FIFA’s Rules and Regulations to
be applied in case of dispute and for English to be used as language of the proceedings.
12.
On 27 May 2015, Club A lodged a claim in front of FIFA against Club D, the player, the
father of the player and Company H (hereinafter: the defendants), requesting the
payment of compensation in the amount of EUR 61,295,000, plus 8% interests p.a.. In
addition, Club A requested the reimbursement of all expenses and fees incurred in
connection with the proceedings.
13.
Club A’ request is addressed to the Players’ Status Committee (PSC) who should
allegedly decide over the entire claim in accordance with the arbitration clause and art.
22 lit. f) in connection with art. 23 of the Regulations and apply Swiss law “to matters
not covered by the FIFA Statutes and Regulations”.
14.
FIFA divided the claim of Club A into several separate claims in reason of the scope of
competence of FIFA’s deciding bodies and of the different respondents. The
proceedings at hand concern only the employment-related claim of Club A against the
player and against Club D as new club of the player.
15.
In general, Club A accused the defendants of having lied to it during the negotiations
that had finally led to the conclusion of the transfer agreement, concealing the fact
that that the transfer in question had already been planned in advance, without its
knowledge. According to Club A, several payments had secretly been made by Club D to
the player and to his father, mainly using third companies as cover up, in order to
secure the transfer.
16.
Club A clarified that a criminal investigation started in Country E against inter alia Club
D had uncovered the aforementioned scheme of the parties and revealed that the total
sum of EUR 78,395,000 was paid by Club D in connection with the transfer of the player
(i.e. the transfer fee in the amount of EUR 17,100,000 plus EUR 61,295,000). The same
investigation had apparently also revealed that some payments were made “even
before the execution of the Transfer Agreement in order to prevent any negotiations
with other football teams (..).”
17.
With regard to the facts of the case, Club A explained having had a contractual
relationship with the player valid until 13 July 2014 which had started on 19 August
2010.
18.
Club A also explained that, by means of a document dated 8 November 2011
(hereinafter: the authorization letter), the player, upon his own request and the
Club A, Country B / Player C, Country B / Club D, Country E
3
insistence of his father, was given permission to “engage in discussions – but not
negotiations- with other football clubs (..) subject to following 2 conditions (..) any
transfer should take place after July 13, 2014; and such transfer should respect all terms
and conditions of the 2011 Employment agreement”. The Portuguese terms of the
authorisation letter are the following: “Club A (..) informa expressamente que concorda
e autoriza o Atleta Player C a iniciar, desde já, tratativas com quaisquer entidades de
prática desportiva, nacionais ou internacionais, podendo concretizar eventual
transferencia desde que isso somente ocorra a partir de 2014 e respeite os termos do
contrato mantido com o Club A”.
19.
Club A alleged that the transfer of the player to Club D had occurred under the pressure
of the player and his father and added that other European clubs had allegedly offered
to pay a much higher sum for his transfer. According to Club A “all such proposals
neither satisfied the Player nor his Agent [i.e. the father of the player]. Instead, the
Player and his Agent insisted that Club D was the sole destination intended by the
Player”.
20.
As further alleged by Club A, the player had rejected all offers received, apart from the
one of Club D, and had also declined to remain in its squad.
21.
In support of the allegation that the additional sum of EUR 61,295,000 would have
been paid by Club D in connection with the transfer of the player without its
knowledge, Club A referred to the relevant proceedings pending in Country E (cf. point
I.16 above) and explained that it had unveiled the existence of several agreements
concluded between Club D, the player, his father and two companies “wholly-owned by
the Player’s Family (50% each of the Player’s parents)”, i.e. Company F and Company L
after the issuance of the authorisation letter.
22.
According to such agreements, Club D would have agreed to make the following
additional payments in relation to the transfer of the player:
a)
EUR 40,000,000 to Company F for the economic and federative rights of the
player;
b) EUR 8,500,000 to the player and Company F, as signing on fee “for accepting the
transfer of the Player’s federative rights (..)”;
c)
EUR 1,500,00 to Company L as signing on fee “for accepting the transfer of the
Player’s federative rights (..)”;
d) EUR 2,795,000 to the father of the player and Company F as commission for the
father of the player (5%);
e)
EUR 2,000,000 to Company F for “scouting services”;
f)
EUR 4,000,000 to Company F as “endorsements”;
g) EUR 2,500,000 to “Foundation M”, a “not-for-profit foundation controlled by
Player C”.
23.
From Club A’s point of view, in “light of the dealings between the Defendants it was
not possible (..) to retain the Player, sell him to another club other than Club D, or sell
Club A, Country B / Player C, Country B / Club D, Country E
4
him to Club D for a higher price, (..) any further efforts (..) in this regard would have (..)
been in vain.” “Had Club A known about the concealed dealings among the
Defendants, Club A would have never transferred the Player to Club D, or at least not
for the price agreed in the Transfer Agreement (..)”.
24.
As a result of all the aforementioned, Club A deemed that the defendants had
committed civil fraud in the sense of art. 28 of the Swiss Code of Obligations
(hereinafter: SCO) and art. 3.2.5. of the UNIDROIT Principles “in order to obtain the
execution of the Transfer Agreement on highly favourable terms” and had therefore to
“jointly and severally” pay compensation for the damages caused.
25.
According to Club A, compensation was also be due, in accordance with art. 97 and 98
of the SCO as well as art. 7.4.1 of the UNIDROIT Principles, as consequence of having
breached art. 4.2. and art. 5 of the agreement (cf. point I.8 and I.9 above), i.e. of the
provisions which “were intended to ensure that Club A would receive the full market
price for the player”. In the alternative, Club A argued that compensation would also
be payable under art. 17 of the Regulations.
26.
Club A further pointed out that Company F and Company L were to be considered “for
all purposes as the Player and/or his Agent [i.e. the father of the player]” in line with
art. 2 par. 1 of the Swiss Civil Code (hereinafter: SCC) and art. 1.7 of the UNIDROIT
Principles.
27.
In continuation, Club A explained that, from its point of view, EUR 78,395,000, i.e. the
total sum allegedly paid by Club D for the player, was to be considered as the value that
the player had on the market at the time of his transfer to Club D and was the sum that
had to be taken into account in the present proceedings in order to calculate the
compensation due by the parties at fault.
28.
Pursuant to Club A, without the “wrongful acts or breached” of the defendants, it
“would have been able to sell the Player for his market price”. Therefore, the damage
incurred consisted in “the difference of the price of the Player under the Transfer
Agreement (..) and the market price that Club A would have received at the time of the
Transfer Agreement (..) for the Player”.
29.
Accordingly, Club A calculated the damages suffered “by subtracting the amount
effectively received (..) from the Player’s market value” and determined that such
damage amounted to EUR 61,295,000 (i.e. EUR 78,395,000 – EUR 17,100,000).
30.
Thus, Club A requested from Club D, the player, his father and Company H the payment
of EUR 61,295,000 as compensation for their wrongful behaviour.
31.
In addition, Club A requested, in accordance with Swiss law, for interest in the amount
of 8% p.a. to be added on all claimed amounts. The relevant 8% p.a., allegedly
corresponded to the “official interest Rate in Country B on May 31, 2014” and was, in
casu, to be applied as the “amounts due under the Transfer were paid to Club A in
Country B”.
32.
Similarly, Club A accused Club D, the player and his father of having breached several
FIFA regulations and requested for the appropriate sanctions to be applied by the PSC,
the FIFA Disciplinary Committee or the relevant association.
Club A, Country B / Player C, Country B / Club D, Country E
5
33.
Specifically with regard to the labour dispute, Club A accused the player of having
breached art. 17 par. 3 and art. 18 par. 3 of the Regulations, as well as art. 62 par. 4 of
the Disciplinary Code, and Club D of having breached art. 17 par. 4 and 5, as well as art.
18 par. 3 of the Regulations and art. 62 of the Disciplinary Code. Thus, Club A requests
that the player is sanctioned with a “six-month restriction on playing any official
matches, and confiscation of all the amounts – directly or indirectly – received as part of
the transfer of his federative and economic rights” and that Club D be sanctioned with
a “ban from registering any new players, either nationally or internationally, for three
entire and consecutive registration periods” and “Confiscation of all the amounts –
directly or indirectly – paid to the Player and his entourage as part of the transfer of his
federative and economic rights (other than those paid under the Transfer Agreement)”,
in accordance with art. 40 and 41 of the Disciplinary Code.
34.
In his reply to the claim of Club A, dated 15 and 30 October 2015, the player first
requested for the relevant proceedings to be suspended “until the competent Courts of
Country E and Country B have rendered final, binding and enforceable decisions”.
35.
According to the player “tax and criminal proceedings were opened (..) in Country B”
concerning the same matter as the one pending in Country E, i.e. the legal qualification
of certain payments made by Club D. As “the question of whether the mentioned
payments should be treated as salary (..) exclusively pertains to the jurisdiction of the
local criminal and tax authorities”, the player deemed that FIFA should “stay the
present proceedings in order to see what the outcome of the proceedings with the
Courts of Country E and Country B will be”, in order to avoid taking a contradictory
decision on the same topic.
36.
Equally, the player contested FIFA’s competence to take a decision in the matter at
stake arguing that Club A’ requests were based on the Swiss Code of Obligations and
not on the Regulations of FIFA, whereas FIFA is “only entitled to hear disputes arising
from the application of the FIFA regulations”.
37.
Similarly, the player recalled that Club A was not basing its request on their
employment relationship and added that he was not even a party to the transfer
agreement. In this respect, the player clarified having only signed the relevant
document “for the purpose of agreeing with the provisions stipulated by the Parties (..)
at clause four (..).” Consequently, the player was not bound by the arbitration clause.
38.
In addition, the player mentioned that, in any case, such clause was “only limited” to
art. 22 lit. f) of the Regulations and could therefore solely be applied between clubs.
39.
Furthermore, the player claimed the prescription of Club A’ request alleging that the
conclusion on 24 May 2013 of the MoU was in casu to be considered as the event giving
rise to the dispute in the sense of art. 25 par. 5 of the Regulations and not the
execution of the transfer agreement, as the MoU contained “all the substantial
elements (..) for the transfer (..) which were later incorporated in the Transfer
Agreement”.
40.
In continuation, the player contested the claim of Club A as to its substance for being
groundless and accused the latter of having submitted it in bad faith and against the
fundamental principle of venire contra factum proprium.
Club A, Country B / Player C, Country B / Club D, Country E
6
41.
In this respect, the player contested having breached art. 13-17 of the Regulations
pointing out that his contractual relationship with Club A was terminated by mutual
agreement.
42.
Furthermore, the player referred to the authorization letter and elucidated that he had
been “expressly authorized by this employer to negotiate with other football clubs”
and was “entitled to concretize the transfer provided that it takes place after 2014 and
respects all the terms of the contract executed with Club A”. As he had “always acted
within the limits of the authorisation letter”, no breach of the terms of his employment
nor of art. 18 par. 3 of the Regulations had occurred.
43.
Equally, the player contested having committed any kind of civil fraud. According to
him, “without prejudice to the fact that the remaining constituent elements of the
fraud are also not met, Club A was never deceived (..) but rather always followed the
course of action which best suited it in the given circumstances, a course of action
where (..) Club A never suffered any damage or loss”.
44.
In this context, the player further explained that after the conclusion of the transfer
agreement, Club A and Club D had entered into “Friendly match agreements” and a
“Cooperation agreement” entitling Club A to receive from Club D the total additional
amount of EUR 21,805,000. Thus, the player considered that, by means of his transfer to
Club D, Club A had de facto received from Club D much more than the amount of the
transfer fee. Such value was, in the player’s opinion, comparable to what Club A would
have obtained if he had activated his buy-out clause contained in the second
employment contract (cf. point I.4 above).
45.
As to the allegation that he would have breached the transfer agreement, the player
pointed out once again that he had never been part to such contract and could
therefore not have breached it.
46.
In addition, the player was eager to emphasize that Club A had received the entire
transfer fee due from Club D and contested Club A’s request for the “Companies of the
Player’s Family” to be considered as his alter ego.
47.
The player also drew the Chamber’s attention to the fact that, in any case, “neither of
the payments received by any of the so-called “Player C companies”(..) has the nature of
consideration for the Player’s transfer fee” and, if at all, those payments “may be
considered “amolumentos pactados” with Club D, which, “as common practice”, he had
no obligation of disclosing to Club A.
48.
The player further contested Club A’s request to be indemnified for not having received
his market value and inter alia recalled that the “Court of Arbitration for Sports [CAS]
has already made very clear the concept that there is no economic, moral or legal
justification for a club to be able to claim the market value of a player as lost profit. (..)
Club A encountered no acquisition costs for Player C () [and] was rewarded for the
training of Player C. with values far beyond those to which it would have been entitled
pursuant to the provisions established by the FIFA RSPT in connection with training
compensation. What is more, as the CAS said, there is no reason to believe that a
player’s value on the market owes more to training by a club than to a player’s own
efforts, discipline and natural talent”. In addition, the player pointed out that “even
Club A, Country B / Player C, Country B / Club D, Country E
7
admitting that in May 2013 Player C’s “market value” was higher than the amount paid
by Club D to Club A, which is denied, such a higher value would “owe more” to Player
C’s own efforts, discipline and natural talent than to the training provided to him by
Club A (..)”.
49.
Nevertheless, the player elucidated that Club A had not suffered “or has anyway failed
to prove that it has suffered” any damage deriving from his transfer to Club D.
50.
With regard to the above, the player accused Club A of having failed to prove that it
would have been able to transfer him for a value higher than the one agreed in the
transfer agreement.
51.
What is more, the player underlined that if Club A had not transferred him to Club D
had it known of their allegedly wrongful behavior, he would “most likely have
respected his employment agreement until its natural expiry without Club A being
entitled to collect any transfer amount at all.” From the player’s point of view, Club A
had “freely decided to negotiate the Player in exchange for the maximum amount it
was able to receive in a free negotiation, as it otherwise would have run the risk of
losing him as a free agent only one year later”. In view of all the above, the player
contested having breached their employment contract or caused any harm to Club A.
52.
Furthermore, the player contested Club A’s request for sporting sanctions to be applied
in connection with an alleged violation of art. 17 par. 3 of the Regulations as he had
not breached his employment contract and their contractual relationship was
terminated by mutual agreement pursuant to art. 13 of the Regulations.
53.
Similarly, the player contested the allegation that he would have breached art. 17 par. 5
of the Regulations as he had “never acted in a manner designed to induce a breach of
contract between a professional and a club (..) in order to facilitated his or another
player’s transfer”.
54.
Lastly, the player invited Club A to “immediately withdraw” its allegation that he
would have breached art. 62 par. 4 of the Disciplinary Code “given the seriousness of
such accusation” which he considered to be a “baseless perjury”.
55.
In conclusion, the player requested to be reimbursed for all legal expenses incurred.
56.
In its response on 15 October 2015, Club D equally rejected the claim of Club A in its
entirety.
57.
Preliminarily, Club D contested FIFA’s competence to take a decision in the dispute at
stake arguing that it could prejudicially affect the proceedings pending in Country E.
58.
In addition, Club D also argued the prescription of the claim on the basis of art. 25 par.
5 of the Regulations.
59.
As to the substance of Club A’ claim, Club D contested having interfered with the
contractual relationship between Club A and the player in the sense of art. 18 par. 3
and 18bis of the Regulations.
60.
From Club D’s point of view, considering the existence of the authorisation letter, no
breach of art. 18 par. 3 and of art. 18bis of the Regulations could have been committed
Club A, Country B / Player C, Country B / Club D, Country E
8
as the player was duly authorized to negotiate with other clubs his transfer after the
end of his contract with Club A.
61.
In Club D’s understanding, the authorization letter did not prevent the player from
entering into an agreement with a third club nor obliged the latter to inform Club A of
the existence of such an agreement.
62.
In addition, Club D contested the allegation that the agreements concluded before the
player’s move to Club D would have interfered with his transfer and pointed out that
such agreements were originally supposed to enter into force after the termination of
the contractual relationship between the player and Club A.
63.
Similarly, Club D contested the allegation that the player would have pressured Club A
into concluding the transfer agreement due to a pre-existent contractual relationship
between the player and Club D, and clarified that the player’s dream had always been
to be part of Club D’s squad and to play with Player N.
64.
Club D added that other clubs interested in engaging the player had agreed to pay the
penalty fee of EUR 40,000,000 to Club D on behalf of the company, Company L in
accordance with the 2011 agreement had the player been transferred to them instead
of Club D. Therefore, the 2011 agreement was not an obstacle to the transfer of the
player to one of those clubs.
65.
Club D further contested having breached art. 17 par. 5 of the Regulations on the basis
of the authorization letter.
66.
In its replica submitted on 24 November 2015 and 7 March 2016, Club A reiterated the
content of its previous submission.
67.
Furthermore, Club A insisted on FIFA being competent to take a decision in the dispute
at stake and rejected the player’s and Club D’s request to suspend the proceedings in
view of the criminal proceedings pending in Country E and Country B. Club A inter alia
asserted that, in accordance with Swiss law and jurisprudence, “criminal proceedings,
whether domestic or international” could not “take precedence over or (..) suspend
current civil or arbitral proceedings”. Similarly, Club A alleged that “the way in which
the payments made by Club D to Player C. and his entourage are classified under the
Laws of Country B or E is irrelevant under the Transfer Agreement’s choice of law” and
“FIFA adjudicating bodies are not in risk of making a decision that would contradict a
decision by the Court of Country B or Country E”. Club A also deemed that a “stay on
the proceeding would violate” its right to be heard.
68.
Equally, Club A contested the allegation that its claim would be time-barred as it was
clearly based on the transfer agreement and not on the MoU.
69.
Nevertheless, Club A clarified that art. 25 par. 5 of the Procedural Rules had to be
“ignored pursuant to the well-established jurisprudence of the Swiss supreme court” as
the “ten-year mandatory statute of limitations rule of Article 127 SCO” prevailed over
the Procedural Rules.
70.
Club A also pointed out that the transfer agreement had been co-signed by the player
and that, therefore, the latter had accepted all its conditions. In addition, Club A
Club A, Country B / Player C, Country B / Club D, Country E
9
clarified that even if FIFA believed “that the Player is not a Party to the Transfer
Agreement, which Club A disputes, Swiss Law is clear that a non-contracting party can
be added to an arbitration in circumstances where that third party involves itself in the
performance of the contract and its actions demonstrate a willingness to be bound by
the arbitration agreement. (..) The Player’s actions in effectuating his transfer to Club D
(..) illustrate that the Player considered himself bound by the Transfer Agreement,
including all of the conditions contained therein.” Hence, Club A deemed that the
Player was bound by art. 9 of the agreement and FIFA “must extend its jurisdiction over
him.”
71.
Club A further emphasized that its requests were “based on the FIFA Regulations and
FIFA is the only body capable of adjudicating the claims against the Player. FIFA may
adjudicate any dispute – whether commercial or not – covered under Article 22 RSTP
[i.e. the Regulations]”.
72.
In Club A’ opinion, its right to be heard required “FIFA to extend its jurisdiction over
Defendants because all Parties – namely, Club A, Club D, the Player, the Players Father.
and Company H – expressly submitted their disputes to FIFA in the Transfer Agreement,
and all have a right to be heard by FIFA.”
73.
Subsequently, Club A accused Club D and the player of having violated the
confidentiality of their contractual relationship (i.e. clause 8 of the transfer agreement,
cf. point I.10 above) by disclosing “in the press around the world confidential details
about the Transfer Agreement and the present proceedings”.
74.
As a result, Club A requested from Club D and the player the additional payment of EUR
100,000, as compensation for having breached clause 8 of the transfer agreement, plus
8% interest p.a..
75.
While insisting on claiming that all amounts paid by Club D to the player, his father
“and the Companies of the Players Family” were to be considered as part of the transfer
fee paid in connection with the transfer of the player, Club A additionally provided FIFA
with the agreements mentioned in its statement of claim (cf. point I.22 above).
76.
As to the authorisation letter, Club A pointed out once again that the document in
question “did not grant the Player permission to negotiate with other clubs, execute
agreements with other clubs or receive money from other clubs” and clarified that it
had been a “way of opening up informal communications regarding the transfer of
Player C Nothing more, nothing less.” Club A contested Club D’s and the player’s
translation of such document (cf. point I.18 above) arguing inter alia that if it had
intended to allow the player “to make any binding oral or written commitments to
another football club, this would have been expressly stated”. Additionally, Club A
alleged that for the authorisation letter to “produce the effect” claimed by Club D and
the player, it should have been signed by “at least two members of the Management
Committee” and not only by its president.
77.
From Club A’s point of view, “even if the Player and Club D misinterpreted the
Authorisation letter (..)” they “acted under the Authorisation letter at their own risk. If
they had any doubts (..)” they “should have consulted with Club A”.
Club A, Country B / Player C, Country B / Club D, Country E
10
78.
In addition, Club A stated that, during his testimony before the Criminal Court of
Country E, the father of the player had “recognised that the Authorisation letter was an
express requirement” of Club D “prior to the execution of the agreements” and that
“he stood to receive EUR 40 million from Club D if the Player refused to renew with
Club A or to be transferred to any club other than Club D. Conversely, if the Player
accepted an offer from another club” he would have had to pay a penalty as per the
2011 agreement. The father of the player allegedly also recognized the fact that the
penalty included in the 2011 agreement had influenced the player’s decision to go to
Club D and that he had pressured Club A into concluding the transfer agreement.
79.
Similarly, Club A explained that one of Club D’s representatives had revealed that the
contracts between Club D and the player “began two or three months before the
Authorization letter” and that the 2011 agreement and the 2011 advance agreement
“were implemented in order to avoid the transfer of the player to any club other than
Club D”.
80.
According to Club A, another official of Club D had allegedly admitted that the 2011
agreement and the 2011 advance agreement were “intended to prevent the Player
from renewing his employment agreement with Club A or from being transferred to
any club other than Club D” and that the “handsome “compensation” paid to the
Player under the 2011 Free Agent Agreement and the 2011 Advance Agreement served
to convince the Player and force him to turn down offers from clubs other than Club D”.
81.
With regard to the player’s allegation that Club A would have lost the benefits of the
two friendly matches and of the cooperation agreement concluded with Club D if the
2011 agreement had never existed, Club A clarified that those agreements were not
part of the player’s transfer and “could have existed in the absence of the Transfer
Agreement with great benefit for both clubs”.
82.
Subsequently, Club A held that allegedly according to one of Club D’s officials, the
player had been transferred for a price below his market value and recalled that the
Club of Country E, Club O would have paid EUR 100,000,000 for the player.
83.
Finally and considering the allegation of the player that Club A would not be entitled to
any compensation, Club A clarified that it was “not claiming compensation for losing an
employee to another club” but for the “Defendants’ unlawful actions that ultimately
resulted in Club A selling an asset (namely the Player’s federative and economic rights)
far below the market value. (..) Club A’ contractual claims are not based on the 2011
Employment Agreement; they are based on the Transfer Agreement. (..) Club A’
contractual claims are based on Swiss law and Swiss law principle should be used in
determining Club A’ compensation, not FIFA standards. Club A only expressed ad
cautelam that, if FIFA considers that any compensation is due to Club A under Article 17
of the RSTP instead of under Swiss law, such compensation should follow the principle
of full compensation, which is widely recognized by FIFA jurisprudence.”
84.
Lastly and as to its claim for compensation for breach of clause 8 of the transfer
agreement, Club A requested from Club D and from the player the payment of EUR
50,000 each, plus 8% interest p.a. as “from the date of the first publication of the
information” leaked to the press, allegedly calculated on the basis of Swiss literature.
Club A, Country B / Player C, Country B / Club D, Country E
11
85.
By means of unsolicited correspondence dated 15 April 2016 and 24 May 2016, Club A
provided FIFA with “newly discovered evidence” in the context of one of the criminal
proceedings pending in Country E allegedly confirming the following: “Club D
contacted and negotiated with the Player and his entourage without Club A’
knowledge and consent”; “Club A knew nothing about the 2011 and 2013 concealed
agreements”; “the secret agreements are a charade in order to secure the Player’s
transfer to Club D”; “the EUR 10 million under the 2011 Advance Agreement is not a
loan, but an advance under the 2011 Free Agent Agreement”; “Club D anticipated the
transfer (..) to 2013 for Sports-Related Reasons”; “the player was transferred to Club D
in May 2013 below his market value”; “the Transfer Agreement contains obligations for
all the Defendants, including the player” and “the friendly match agreements and the
cooperation agreement were not part of the transfer price”.
86.
In his final statement on 6 September 2016, the player contested all the latest
allegations of Club A and reiterated the content of his first submission.
87.
In addition, the player alleged that on 11 July 2016, “Public Prosecutor of Country E, the
State Attorney of Country E and Club D acknowledged that certain payments made by
Club D to Player C, Company H and Company L should have been taxed in Country E
according to the tax income regime for non-residents in Country E”.
88.
From the player’s point of view, “with this new fact in mind, the whole (..) claim lodged
by Club A completely loses any even slight foundation. (..) Payments which were
considered by the relevant Tax Authority of Country E as part of the salary paid to the
Player (..) cannot be, at the same time, considered as consideration for federative and
economic rights to which Club A would have allegedly been entitled”.
89.
In view of the above, the player requested FIFA once again to grant a stay in the
present proceedings until the competent Courts of Country E and Country B have
rendered a final and binding decision in the pending proceedings or in the alternative
“to proceed to the immediate termination of the present matter in view of the
qualification given to certain payments made by Club D (..).”
90.
The player insisted on the claim of Club A being time-barred and pointed out that the
latter could have lodged its requests earlier but was not interested in doing so. The
player deemed that Club A’ claim was only a “reaction to the allegations of Company P
against it and in order to shift the burden of such allegation entirely to Club D and
Player C, by showing to Company P that it would be dissociated from the latters and
pose as victim”.
91.
Similarly, the player referred to the Swiss Code of Obligations (art. 21 and 31) and
stressed that it actually provided for a one year time limit to lodge a complaint as the
one of Club A.
92.
In continuation, the player was eager to emphasize that Club A had already authorized
him orally in August 2011 to negotiate with Club D after the latter had contacted Club
A with the purpose of engaging him. According to the player, Club A was therefore
aware that he had been negotiating personal terms with Club D.
Club A, Country B / Player C, Country B / Club D, Country E
12
93.
Finally, the player contested having breached the confidentiality of the transfer
agreement and clarified that Club A itself had “announced the present claim (and
details of it) to the entire world through a public press conference which was streamed
live in youtube.com and is still available”.
94.
In its final statement of 22 July 2016, Club D contested the admissibility of all new
statements of Club A and rejected all allegations included in the relevant submissions.
95.
In accordance with the employment contract concluded between the player and Club D
on 3 June 2013, valid from 29 July 2013 until 30 June 2018, which was uploaded on
TMS, the player was entitled to receive from Club D the following fixed remuneration: a
signing on fee of EUR 8,500,000 on 15 September 2013 as well as the amount of EUR
5,100,000 per season. In accordance with the contract, the player had to receive from
Club D, as total remuneration, no less than EUR 45,900,000 by the end of the fifth
season.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took
note that the present matter was submitted to FIFA on 27 May 2015. Consequently, the
2015 edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the
matter at hand (cf. article 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22
lit. a) of the Regulations on the Status and Transfer of Players (edition 2015), the
Dispute Resolution Chamber would, in principle, be competent to deal with the matter
at stake, which concerns a dispute between a Club of Country B, a Player of Country B
and a Club of Country E, pertaining to the maintenance of contractual stability and
connected with the issuance of an International Transfer Certificate (ITC).
3.
The Chamber, however, acknowledged that the player and Club D contested the
admissibility of Club A’ claim, based on the legal principle of litis pendens, arguing that
several proceedings, involving the same parties, on the same grounds and with the
same request, were already pending in Country E and Country B, in connection with the
transfer of the player.
4.
In this respect, the Chamber deemed it appropriate to briefly recall that on the basis of
the principle of litis pendens, a decision-making body is not in a position to deal with
the substance of a case if the same matter, involving the same parties, has already been
brought before and is still pending with another decision-making body.
5.
With the aforementioned consideration in mind, the Chamber turned its attention to
the fact that, in accordance with the information on file provided by the parties, the
Club A, Country B / Player C, Country B / Club D, Country E
13
proceedings mentioned by the player and Club D appear to be of a purely tax and
criminal nature, whereas the claim lodged by the Claimant in front of FIFA, in particular
the employment-related dispute presently under analysis in accordance with art. 22 lit.
a) of the Regulations, mainly revolves around the question of whether the player and
Club D would have breached or induced the breach, respectively, of the employment
relationship between the player and Club A and, consequently, would be held liable to
pay compensation to the latter.
6.
Based on the foregoing, the Chamber concluded that the present proceedings and the
ones pending in Country B and in Country E do not appear to deal with the same
matter, as the latter seem to be related to tax and criminal issues, while the present
ones – in line with art. 22 lit. a) of the Regulations – are rather employment-related.
Thus, the Chamber rejected the player’s and Club D’s objection to the admissibility of
Club A’s claim based on the principle of litis pendens.
7.
In continuation, the Chamber remarked that the player and Club D also contested the
admissibility of the claim of the Claimant alleging its prescription. In particular, the
Chamber noted that the Respondents deem the starting point for the calculation of the
prescription should be the conclusion of the MoU of 24 May 2013, between the
Claimant and the Respondents, inter alia, in which the terms of the transfer were
agreed upon. Thus, as per the Respondents, Club A’s claim lodged on 27 May 2015
should be considered as prescribed, in line with art. 25 par. 5 of the Regulations.
8.
In this regard, the members of the Chamber referred to art. 25 par. 5 of the FIFA
Regulations on the Status and Transfer of Players (edition 2015), according to which,
inter alia, the Dispute Resolution Chamber shall not hear any case subject to the said
Regulations if more than two years have elapsed since the event giving rise to the
dispute.
9.
In this respect, the Chamber considered that the event giving rise to the present dispute
was, in fact, the transfer of the player from Club A to Club D, effective with the
conclusion of the transfer agreement between the aforementioned parties inter alia on
31 May 2013. Hence, taking into account that the claim of the Claimant was lodged on
27 May 2015 and considering that the transfer agreement – being the legal basis for his
actual transfer to Club D – was concluded on 31 May 2013, the Chamber established
that the claim of the Claimant was lodged within the two years deadline provided for in
art. 25 par. 5 of the Regulations and therefore is not time-barred.
10.
Finally and as to the argument raised by both Respondents that FIFA would not be
competent to hear the present dispute as the claim of the Claimant is mainly based on
Swiss law, the Chamber pointed out once again 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) it is competent to deal with an employment-related dispute between a
player, his former club and his new club, concerning the maintenance of contractual
stability, and in connection with an ITC. Furthermore, the Chamber reminded the
Club A, Country B / Player C, Country B / Club D, Country E
14
parties that, in accordance with the FIFA Statutes, Swiss law is applicable subisdiarily to
the FIFA Regulations.
11.
In view of the aforementioned, the Chamber concluded that it is competent to hear the
claim lodged by Club A against the player and Club D, according to art. 22 lit. a) of the
Regulations and to decide on the substance of the matter at stake. Thus, the claim of
Club A should be admissible.
12. Having established the aforementioned, the Chamber analysed which edition of the
Regulations should be applicable as to the substance of the matter. In this respect,
considering that the present claim was lodged on 27 May 2015, the DRC confirmed that
the 2015 edition of the Regulations is applicable to the matter at hand, in accordance
with its art. 26 par. 1 and 2.
13. 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 the facts of the case as well as the arguments and
the documentation submitted by the parties, within the scope of its competence, as
established in art. 22 of the Regulations. In this respect, the Chamber was eager to
point out that, in the following considerations, it will only refer to the facts, arguments
and documentary evidence which it considered pertinent for the assessment of the
matter at hand.
14. In doing so, the members of the Chamber acknowledged that, on 19 August 2010, the
player and Club A concluded a first employment contract, valid as from 19 August 2010
until 19 August 2015, as per which the player was entitled to receive a monthly salary of
150,000. Furthermore, the Chamber acknowledged that on 7 November 2011, the
player and Club A concluded a second employment contract, valid as from 1 November
2011 to 13 July 2014, replacing the first employment contract and according to which
the player was entitled to a monthly salary of 200,000.
15. Subsequently, the Chamber noted that, on 31 May 2013, Club A, the player, Club D, the
father of the player and Company H signed a transfer agreement related to the transfer
of the player from Club A to Club D, which provided for a transfer fee of EUR
17,100,000 to be paid on 7 June 2013 by Club D to Club A. The Chamber further
acknowledged that the transfer agreement included a clause which inter alia prevented
the player from receiving and Club D from paying to him any amount related to the
transfer in question.
16. In continuation, the DRC took note of the allegations of Club A, according to which the
player and Club D would have colluded behind its back in order to obtain a transfer of
the player to Club D in accordance with terms favourable to the latter. Equally, the
Chamber took note of the Claimant’s allegations according to which Club D would have
paid to the player and to his family – also via several companies – the total amount of
EUR 61,295,000, allegedly breaching the terms of the transfer agreement. In the same
context, the Chamber observed that the Claimant considered the behaviour of both
Club A, Country B / Player C, Country B / Club D, Country E
15
Respondents as being fraudulent and accused the latter of having breached not only
the FIFA Regulations but also Swiss law and the UNIDROIT principles.
17. In continuation, the DRC acknowledged that, in its claim to FIFA, Club A had requested
from the Respondents the payment of EUR 61,295,000 as compensation for having
breached the transfer agreement and/or for their fraudulent behavior and of EUR
100,000 for having breached the confidentiality clause included in the Transfer
agreement. Equally, the Chamber remarked that, from the Claimant’s point of view,
FIFA should impose sanctions on both the player and Club D in accordance with art. 17
and 18 of the Regulations and as per art. 62 of the Disciplinary Code.
18. Furthermore, the Chamber noted that, for their part, the player and Club D had
contested all allegations of Club A and had rejected the latter’s claim in its entirety. In
particular with regard to the present labour dispute, the Chamber acknowledged that
the player emphasises that his transfer to Club D was freely agreed between the two
clubs and therefore he could never have breached his employment contract(s) with Club
A.
19.
The DRC equally acknowledged Club A’s argument that its “contractual claims are not
based on the 2011 Employment Agreement; they are based on the Transfer Agreement.
(..) Club A’ contractual claims are based on Swiss law and Swiss law principle should be
used in determining Club A’s compensation, not FIFA standards. Club A only expressed
ad cautelam that, if FIFA considers that any compensation is due to Club A under Article
17 of the RSTP instead of under Swiss law, such compensation should follow the
principle of full compensation, which is widely recognized by FIFA jurisprudence.”
20.
At this point, and before entering the analysis of the parties’ arguments as to their
substance, the Chamber deemed it important to clarify that it took note of the
aforementioned argument of Club A, however, its competence – as well as that of the
Players’ Status Committee – is delimited by art. 22 of the Regulations and, accordingly,
the DRC is only competent to deal with disputes between a club and a player – either
under art. 22 lit. a) or b) – which are employment-related. Therefore, the part of Club A’
claim lodged against the player and his new club, Club D, currently under analysis, shall
be considered under the scope of the employment relationship between the player and
Club A.
21.
Having said that, the Chamber – in the scope of its competence as defined in art. 22 lit.
a) of the Regulations – first referred to art. 13 of the Regulations (“Respect of
contract”) in accordance with which a contract between a player and a club may be
terminated upon expiry of the term of the contract and by mutual agreement.
Furthermore, the Chamber pointed out that the application of art. 17 of the
Regulations (“Consequences of terminating a contract without just cause”) is clearly
limited to cases of breach – or inducement to breach – of an employment contract
concluded between a club and a player, without just cause.
Club A, Country B / Player C, Country B / Club D, Country E
16
22.
Therefore, considering the aforementioned as well as taking into account the fact that
the employment contract concluded between the player and Club A was undisputedly
terminated by mutual agreement, as an agreement for the player’s transfer to Club D
was negotiated and concluded by Club A inter alia on 31 May 2013, the Chamber
determined that no breach of the first or of the second contracts in the sense of the
Regulations had occurred and that therefore art. 17 of the Regulations is in casu not
applicable.
23.
In continuation and as for Club A’s requests for sanctions against both the player and
Club D on the basis on art. 18 of the Regulations and art. 62 of the Disciplinary Code,
the DRC first deemed that, in view of the circumstances of the present case, the
documentation provided by the parties and, in particular, the authorisation letter of 8
November 2011 (cf. point I.18 above), a breach of art. 18 par. 3 of the Regulations by
the player or Club D could not be established. As to Club A’ request for the application
of disciplinary sanctions in accordance with art. 62 of the Disciplinary Code, the
Chamber was eager to clarify that such request falls outside the scope of the present
employment-related dispute and as a result cannot be assessed by the DRC.
24.
Equally and referring to the request of the Claimant related to the payment of
compensation for an alleged breach of the confidentiality clause included in the
transfer agreement, the DRC established that such request lay outside the scope of an
employment-related dispute and can therefore not be assessed by the DRC.
25.
Finally, the DRC referred to art. 18 par. 4 of the Procedural Rules and stressed that no
procedural compensation shall be awarded in proceedings of the Players’ Status
Committee and the Dispute Resolution Chamber. As a result, the Chamber established
that any request for reimbursement of costs in connection with the present proceedings
has to be rejected, for lack of legal basis.
26.
In view of all the aforementioned, the DRC decided that the claim of Club A is rejected.
III. Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is admissible.
2.
The claim of the Claimant, Club A, is rejected.
*****
Club A, Country B / Player C, Country B / Club D, Country E
17
Note relating to the m otiv ated 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:
Omar Ongaro
Football Regulatory Director
Encl.
CAS directives
Club A, Country B / Player C, Country B / Club D, Country E
18