Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 14 June 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Tom is lav Kas alo (Croatia), member
Wouter Lam brecht (Belgium ), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the player,
Play er C, Country D
as Respondent 1
the club,
Club E, Country F
as Respondent 2
and the club,
Club G, Country H
as Respondent 3
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
In January 2016, the player of Country D, Player C (hereinafter: the player or the
Respondent 1) signed an employment contract with the club of Country F, Club E
(hereinafter: Club E or the Respondent 2) which was renewed on 13 February 2018 and
valid until 31 December 2020.
2.
On 31 July 2018, the club of Country B, Club A (hereinafter: Club A or the Claimant)
contacted an intermediary, Mr X, to forward an offer to Club E for the transfer of the
player.
3.
On 2 August 2018, Club E replied to Mr X with a counter-offer. On 5 August 2018, Club
A contacted Club E directly with a reply to the counter-offer. On 6 August 2018, the
exchange of offers and counter-offers went back and forth between the two clubs.
4.
Following negotiations, on 7 August 2018, Club A provided Club E with a final offer
(hereinafter: the offer).
5.
The offer which was set to be valid until 9 August 2018, provided the following:
The transfer of the player against payment of the amount of EUR 3,000,000
20% as sell-on fee.
6.
On 7 August 2018, Club E replied to Club A via email stating: “the offer is ok. Can you
please draft an agreement contract?”. To which Club A replied the same day by sending
a draft of the transfer agreement (hereinafter: the draft).
7.
In accordance with the draft, “its validity is subject to the following conditions:
Club A reaches an agreement with the player and becomes ready to sign the
employment contract;
Club E sends the ITC and prepare and submit the necessary documents to the
relevant federation,
Club A pays the first instalment to Club E.”
8.
The draft further provides that Club A is to pay to Club E a transfer fee of EUR
2,300,000.
9.
On 7 August 2018, Club A and the player signed an employment contract (hereinafter:
the contract) valid as from the date of signature until 30 June 2022.
10.
In accordance with the contract, the player shall pass a medical examination 15 days
following the signature of the contract. The annex of the contract stipulates the
following: “Both parties recognize each other with the necessary capacity and
competence to contract, in the respective capacities in which they intervene, the rights
and obligations regulated in this agreement, and to that effect.” (free translation from
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 2 of 20
Spanish, original reads as follows: “Ambas partes se reconocen con la capacitad y
competencia necesarias para contraer, en las respectivas calidades en que intervienen,
los derechos y obligaciones que en este acuerdo se regulan, y a tal efecto.”)
11.
On the same day, the player and Club A signed an annex to the contract (hereinafter:
the annex) in accordance with which the player was entitled to the following
remuneration:
For the season 2018/2019: the total amount of EUR 600,000 payable in 11
instalments of EUR 6,000 from August 2018 until June 2019 and EUR 534,000
payable in December 2018;
For the season 2019/2020: the total amount of EUR 600,000 payable in 12
instalments of EUR 6,000 from July 2019 until June 2020 and EUR 528,000 payable
in two installments of EUR 264,000 each, on December 2019 and June 2020;
For the season 2020/2021: the total amount of EUR 600,000 payable in 12
instalments of EUR 6,000 from July 2020 until June 2021 and EUR 528,000 payable
in two installments of EUR 264,000 each, on December 2020 and June 2021;
For the season 2021/2022: the total amount of EUR 600,000 payable in 12
instalments of EUR 6,000 from July 2021 until June 2022 and EUR 528,000 payable
in two installments of EUR 264,000 each, on December 2021 and June 2022.
12.
The annex provides the following:
“1.2. By mutual agreement of the parties: Both parties may agree on the early
termination of the contract and its consequences.
1.3. By unilateral decision of the PLAYER to be able to render services to another Club,
Federation or sports entity The international federative rules, as well as community and
international customs and practices, prevent that during the validity of the contract a
player can terminate in advance his contract to render services for another Club,
Federation or sports entity in the temporary terms contained in its regulatory rules such
as the FIFA Regulations on the status and transfer of players. However, article 16 of RD
1006/85 empowers the parties to agree on compensation in the event that the player
decides to terminate the contract early and unilaterally. FIFA admits the application of
the aforementioned Royal Decree as it is a matter of public order. Consequently, the
PLAYER may terminate this employment contract without being subject to stability or
binding terms ("protected period" or "free period" in FIFA terminology), as long as he
indemnifies the CLUB in the amount and terms established below by mutual agreement
between the parties and absolute freedom. Thus, by mutual agreement, the parties
establish that, for this reason of termination, the PLAYER and/or the subsidiary
responsible, as the case may be, in accordance with art. 16 of RD 1006/85, or the jointly
and severally liable party in accordance with FIFA regulations, must pay as
compensation to Club A on the date of termination and in cash, the amount of FORTY
MILLION EUROS (EUR 40,000,000.), plus the corresponding taxes. This amount will be
updated with the increase in the CPI for the national group, referring to the period
between the first day of the month in which this contract commences and the last day
of the penultimate month prior to the termination. The PLAYER will not be able to
cancel the present contract, nor will the CLUB authorize the transfer of his Federative
File, nor will the PLAYER be able to be contracted by Club or sports entity of any kind, if
previously the indemnifying payment agreed here plus the corresponding taxes has not
been materialized in full. The player's failure to start "de facto" to this contract by his
refusal to extend his effective relationship with the CLUB after this signing today or by
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 3 of 20
having signed a contract with another Club prior to this act or subsequent to it, will
automatically grant the same right to compensation in favor of the CLUB, plus taxes.
1.4. By unilateral decision of the Club A. In the event that the Club A unilaterally
decides to dismiss the PLAYER, basing its termination on a very serious breach of
contract, the PLAYER shall not be entitled to any compensation. If, on the contrary, and
for the purposes set out in art. 15.1 of Royal Decree 1006/1985, of 26 June, the dismissal
proceeded unilaterally by the Club, is qualified as inappropriate, it is expressly agreed
that only in such a case, the Club will be obliged to pay the player the full outstanding
salary amounts provided for until the end of this contract.”
(free translation from Country B, original text reads as follows: “Recisión del contrato
[…] 1.2. Por mutuo acuerdo de las partes: Ambas partes podrán pactar la resolución
anticipada del contrato y sus consecuencias.
1.3. Por decisión unilateral del JUGADOR para poder prestar sus servicios a otro Club,
Federación o entidad deportiva Las normas federativas internacionales, así como los
usos y costumbres comunitarios e internacionales, impiden que durante la vigencia del
contrato un jugador pueda rescindir anticipadamente su contrato para prestar sus
servicios a otro Club, Federación o entidad deportiva en los términos temporales
contenidos en sus normas reguladoras como el Reglamento FIFA sobre el estatuto y la
transferencia de jugadores. Sin embargo, El RD 1006/85, en su artículo 16, faculta a las
partes a pactar una indemnización para el caso que el jugador decida resolver
anticipada y unilateralmente el contrato. El organismo FIFA admite la aplicación del
reseñado Real Decreto por tratarse de normativa de orden público. En consecuencia, el
JUGADOR puede rescindir el presente contrato de trabajo sin sujeción a plazos de
estabilidad o vinculación ("periodo protegido" o periodo "libre" en terminología FIFA),
siempre y cuando indemnice al CLUB en la cuantía y términos que más adelante se
establecen de mutuo acuerdo entre las partes y absoluta libertad. Así, de común
acuerdo, las partes establecen que, por esta causa de rescisión, el JUGADOR y/o el
responsable subsidiario, en su caso, de acuerdo con el art. 16 del RD 1006/85, o el
responsable solidario conforme a la normativa FIFA, deberá abonar en concepto de
indemnización a la Club A a la fecha de cese y al contado, la cantidad de CUARENTA
MILLONES DE EUROS (EUR 40.000.000.) todo ello más los impuestos correspondientes.
Este importe se actualizará con el incremento del IPC para el conjunto nacional, referido
al periodo comprendido entre el primer día del mes de inicio de este contrato y el
ultimo día del mes penúltimo anterior al cese. El JUGADOR no podrá rescindir el
presente contrato, ni el CLUB autorizará la transferencia de su Ficha Federativa, ni
podrá el JUGADOR ser contratado per Club o entidad deportiva de ninguna clase, si
previamente no se ha materializado, íntegramente, el pago indemnizatorio aquí
convenido más los impuestos correspondientes. El incumplimiento del jugador a dar
inicio de "facto" al presente contrato por su negativa a prorrogar su vinculación
efectiva con El CLUB tras la presente firma en el día de hoy o por haber firmado
contrato con otro Club con anterioridad a este acto o posterior al mismo, otorgará
automáticamente el mismo derecho indemnizatorio a favor del CLUB, más los impuestos
correspondientes.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 4 of 20
1.4. Por decisión unilateral de la Club A. En el supuesto de que la Club A decidiera de
forma unilateral el despido del JUGADOR, fundando mencionada rescisión en un
incumplimiento laboral muy grave del mismo, el JUGADOR no tendrá derecho a
indemnización alguna. Si, por el contrario, y a los efectos preceptuados en el art. 15.1
del Real Decreto 1006/1985, de 26 de junio, el despido procedido de forma unilateral
por parte del Club, fuere calificado como improcedente, se pacta expresamente que
únicamente en tal caso, el Club estará obligado a abonar al jugador la totalidad de las
cantidades salariales pendientes de pago previstas hasta la finalización del presente
contrato.)
13.
On 8 August 2018, Club E wrote to Club A regarding the draft agreement pointing out
that it contained some mistakes “for example in the fee where it said 2,3 Million euro.
Do you want me to change my end or do you change your end?”
14.
On the same day, Club A answered “please change the mistakes and sent us the
contract signed ok? The player has just signed too”.
15.
On 8 August 2018, the player signed the registration request with the Football
Federation of Country B (Football Federation of Country B) for the season 2018/2019.
16.
In accordance with the documentation on file, the player went through a medical
examination with Club A on 8 August 2018.
17.
In accordance with the documentation on file, the player went back to Club E on 8
August 2018.
18.
On 14 August 2018, Club A put Club E in default by means of a letter, requesting that
within 24 hours of receipt, Club E “proceed to formalize in writing the transfer
agreement and introduce in the TMS [Transfer Matching System] both the transfer
order of the player and the information and documents required by the system”.
19.
On 18 August 2018, the player terminated the contract with Club A by means of a
letter, arguing the following:
a) that he was misled into signing the contract by Club A’s intermediary and Club A,
b) that he did not understand Spanish and;
c) that he signed the contract under the belief that “it was a standard template
necessary to be signed with the sole scope to possibly undergo medical visits at a
later stage and for [Club A] to officially starting negotiations with [Club E] for [his]
transfer.”
20.
The player further argued that since Club A and Club E did not agree on a transfer
agreement, he could not be registered with Club A. The player added that Club A did
not request him to come back to the club after he went back to Country F to Club E and
that he kept on playing with the latter.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 5 of 20
21.
On 22 August 2018, Club E and the club of Country H, Club G (hereinafter: Club G or the
Respondent 3) signed a transfer agreement (hereinafter: the final transfer agreement)
for the definitive transfer of the player from the former to the latter.
22.
In accordance with the final transfer agreement, Club G had to pay EUR 4,000,000 to
Club E as transfer compensation for the definitive transfer of the player, amount
payable in 3 instalments as follows:
EUR 2,500,000 following the receipt of the ITC;
EUR 1,000,000 by no later than 10 January 2019;
EUR 500,000 by no later than 10 August 2019.
23.
Club E is further entitled to an additional transfer fee of EUR 250,000 “each time the
player has played in 75% of the official matches during a season […] To have played
one official match the player shall have played at least one minute in the relevant
match”, and to a sell-on fee.
24.
On 23 August 2018, the player and Club G signed an employment contract valid as from
23 August 2018 until the end of the season 2022/2023 according to which he is entitled
to a monthly remuneration of EUR 66,800 for the season 2018/2019 and to a monthly
remuneration of EUR 79,000 for the seasons 2019/2020, 2020/2021, 2021/2022,
2022/2023.
25.
According to the information contained on the Transfer Matching System (TMS), on 24
August 2018, the player was registered with Club G.
26.
On 31 August 2018, Club A lodged a claim against the player, Club E and Club G in front
of FIFA’s Dispute Resolution Chamber (hereinafter: the DRC) for breach of contract
requesting the following:
That FIFA consider the transfer agreement between Club A and Club E as valid and
binding;
That FIFA declare the nullity of the transfer agreement between Club E and Club G
due to fraud;
That FIFA urges Club E to implement the transfer agreement and the delivery of
the ITC of the player to Club A;
“and/or” a compensation for breach of contract in the amount of EUR 40,000,000
corresponding to an amount agreed with the player in the contract, payable jointly
by Club E, Club G and “if applicable” by the player.
27.
In its claim, Club A argued that the transfer agreement between it and Club E was valid
and perfected from the moment the offer was accepted by Club E. Club A considered
that the offer contained all the necessary elements and was sufficient in and of itself to
be considered valid. Club A considered that the acceptation of the offer was explicit
taking into account that a member of the management team of Club E replied to the
offer “the offer is ok; can you draft an agreement contract?”.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 6 of 20
28.
Club A further argued that the player signed the contract, the annex of the contract
and the registration with the Football Federation of Country B. The player submitted
himself to a medical exam with Club A. Club A affirmed that the player wanted to play
in Club A but was influenced by Club E upon his return to Country F. Club A based this
affirmation on a text message received from the player which stated “hello Mr
president […] I just wanted to say that I am talking to my president and trying to calm
the situation down […] to sort things out with him”. In any case, Club A argued that the
player breached the contract, and that should the player have wanted to terminate the
contract before its expiry to sign with another club, he should have proceed with the
payment to Club A of the amount of EUR 40,000,000 as provided by the contract.
29.
Club A put forward that several clubs were interested in acquiring the player, but
stopped when they got knowledge that he had already signed a contract with Club A.
Club A argued that Club G was aware of the player’s situation and still signed a contract
with him. Club A provided an exchange of correspondence between Club A and a
member of Club G’ staff in which Club G requested the transfer agreement between
Club A and Club E, and Club A refused to provide it, invoking that it was confidential.
30.
In reply to the claim of Club A, the player underlined that no transfer agreement had
been signed between Club A and Club E and that for an employment contract to be
valid, a valid transfer agreement between the former club and the new club must exist
beforehand and it must have been executed. Moreover, no ITC was issued and the
player was not registered in Country B with Club A.
31.
In reply to the claim of Club A, Club E argued that most of the requests of the Claimant
are declaratory requests and should be disregarded. Regarding the pecuniary request of
EUR 40,000,000, Club E deemed that it was not a party to the negotiations leading to
the employment contract, and that it does not bear any joint liability on the basis of the
RSTP.
32.
Club E asserted that during the summer 2018, it started negotiating with several clubs,
including Club A, regarding the international transfer of the player. According to Club
E, the player requested on 6 August 2018 to be allowed to travel to Club A to visit it,
which Club E agreed to, allegedly, with the player’s guarantee that he would not sign
any employment contracts.
33.
According to Club E, the player informed them on 8 August 2018 that he had signed
with the Claimant but only “so that [he] could do the medical exam”.
34.
According to Club E, the offer between Club E and Club A does not respect the form of
a transfer agreement, as it was not written and signed by both parties. Moreover, Club
E argued that not all the essentialia negotii had been agreed by the parties, for
example the exact date of the transfer. Club E also invoked art. 18 par. 3 and 5 of the
RSTP arguing that as Club A did not have the consent of Club E when it made the player
sign the contract, it cannot be valid and binding.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 7 of 20
35.
Regarding the contract between Club A and the player, Club E considered that since the
contract was in Spanish, a language that the player allegedly does not understand, it
should not be valid and binding. Club E also pointed out that the fact Club A made the
player sign the contract before formalizing the transfer agreement also meant that the
contract is not valid and binding.
36.
Regarding the compensation, Club E deemed that it should not be held liable as it is not
bound by the player’s contract, Club E contested the validity of the transfer agreement
as it has not been formalized. Regarding joint liability, Club E considered that it is not
the “new club” for the purpose of art. 17 par. 2 of the RSTP. Club E argued that it
already had a valid employment contract with the player by the time he signed with
Club A, and that if the DRC was to find a breach of contract by the player, the contract
that would have led to that breach would have been the one between the player and
Club G.
37.
In reply to the claim of Club A, Club G underlined that its alleged liability is directly
linked to the existence of a valid employment contract between the player and Club A
and a breach by the player of such contract. Club G argued that there is no valid
transfer agreement between Club E and Club A as no transfer agreement was signed
and no TMS instructions entered. Consequently, Club G affirmed that without a valid
transfer agreement, no valid employment contract could have been entered between
the player and Club A and that in any case, the player could not understand what he
was signing due to a language issue. Club G argued that the player would not have
signed the contract had he known that no transfer agreement had been signed prior.
38.
If a breach of contract was to be recognized by the DRC, Club G rejected any liability on
its part, arguing that it never induced the player into the alleged breach. In any case,
Club G considered that it would be up to Club A to demonstrate any inducement on its
part. Moreover Club G argued that it had been in contact with Club E since 20 July 2018
regarding the transfer of the player, as it sent to Club E several offers between then
and the signature of the transfer agreement. Club G considered that it did not directly
profit from the alleged breach of contract since the player left Club A not to go to Club
G, but first returned to Club E and played an official match on 12 August 2018 with Club
E. The player notified his termination on 18 August 2018, and was transferred to Club G
on 23 August 2018, meaning that he was still with Club E during 5 days before going to
Club G.
39.
Moreover, Club G denied having had any influence on the player’s decisions regarding
Club A, as Club G held not having had any contact with the player before the alleged
breach. Club G argued that it had acted cautiously when it became aware of the issues
between Club A and Club E. Before signing with the player, Club G requested from Club
E documents regarding the termination by the player of the contract with Club A, such
as an attestation from Club E signed by the player. Club G argued that it had waited to
see if any transfer had been formalized between Club A and Club E for the player in the
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 8 of 20
TMS. Club G further alleged that it had waited 11 days before starting the negotiations
again. Club G argued that it was only contacted by Club A after signing the transfer
agreement with Club E, and that Club A refused to provide any official documents to
confirm its allegations.
40.
On the joint liability, Club G considered that it is not the new club and cannot be jointly
and severally liable under art. 17 par. 2 of the RSTP since the player went back to Club E
and played an official game there after the termination.
41.
In its replica, Club A reiterated that the offer for the transfer of the player was accepted
by Club E and that at that moment, the offer became binding for both parties, and that
the player signed the contract with Club A following the acceptance. According to Club
A, it was Club E which refused to formalize the transfer in writing and did not allow the
issuance ITC of the player.
42.
With respect to the contract, Club A argued that it is a standard contract from the
Football Federation of Country B and that the annex was also provided in English to the
player. In any case, Club A considered that by the very nature of the clauses in it, the
annex was understood by the player.
43.
Club A held that that the DRC and CAS jurisprudence “qualifies the transfer agreement
as a complex legal act, the validity of which is not affected even if certain administrative
procedures necessary for the provision of the service are not completed or missing”.
44.
On Club E’ liability, Club A reaffirmed that it should be held liable under art. 17 of the
RSTP, as following the alleged breach of contract of the player, he returned to Club E
on 9 August 2018 before being transferred to Club G on 23 August 2018. Club
Aconsidered that the return to Club E can even be considered as a second employment
contract between the player and Club E or even as a bridge or intermediate status
before the definitive transfer to Club G.
45.
Club A maintained its claim of EUR 40,000,000 in application of the contract, and
maintained that the contractual clause providing for such amount is valid under the law
of Country B. Club A added that FIFA’s Regulations as well as its jurisprudence recognize
the freedom of the parties to agree on compensation clauses.
46.
Club A explained that should the DRC deem said amount as too high, the value of the
player should be equal to EUR 10,000,000 taking into consideration the transfer
agreement between Club E and Club G.
47.
Regarding Club G’s joint liability, Club A put forward that many clubs were interested in
the player, but when they learnt about his situation with Club A, all clubs renounced to
transfer him except for Club G. In line with this, Club A provided a WhatsApp
communication with a man allegedly representing the interests of the Country H club
Club J, in which upon hearing about the player’s situation, that man replied “I leave this
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 9 of 20
with you, Club J is out”. Consequently, Club A proclaimed that Club G and Club E should
be jointly and severally liable together with the player.
48.
In his duplica, the player asserted that he only went to Club A to visit the club and that
upon his arrival in Club A, he was informed by the agent that put him in contact with
Club A that Club E and Club A had reached an agreement on his transfer.
49.
The player contested receiving a copy in English of the contract or of any of the
documents he signed in Club A.
50.
He alleged that Club E was aware that he willingly signed the employment contract (“le
joueur avait volontairement signé le contrat de travail”) with Club A but was requested
by Club E to come back to Country F. Upon his return, the player argued that Club E
tried to convince him that the contract with Club A was not valid and made him sign
the termination letter, while he himself did not agree with the terms of the termination
letter, and that the club “threatened to keep [him] for the next season and to refuse
any transfer offer if [he] did not sign the [termination] letter”. The player stated that he
regretted signing the termination letter as he argued that he really wanted to join Club
A but was manipulated by Club E into signing the termination letter.
51.
In its duplica, Club E reiterated its argument that no binding transfer agreement had
been signed between Club E and Club A. Club E affirmed that Club A was the party
acting in bad faith as it signed the player while no agreement had been formalized
between Club A and Club E for the transfer of the player. Club E added that Club A did
not start the administrative process in TMS for the transfer of the player.
52.
Club E explained that at the time of the signing of the transfer agreement, Club G was
“fully aware of the course of events that had taken place in Club A and thereafter”.
53.
In any case, Club E reaffirmed that it is not the new club of the player and cannot as
such be held jointly and severally liable.
54.
In its duplica, Club G reiterated that it was never in contact with the player during the
discussions between the player and Club A nor immediately upon his return in Club E.
Club G further contested that the man talking with Club A was really someone
representing Club J.
55.
Club G argued that Club A never provided it with the employment contract between
Club A and the player despite its request to do so, which did not help to give credibility
to Club A’s claim according to Club G. Club G reiterated that it checked TMS to see if
any instructions regarding the player had been entered, which was not the case. Club G
held again that it is not the new club of the player since he terminated the contract
with Club A on 18 August 2018, remained in Club E and then was transferred from Club
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 10 of 20
E to Club G on 23 August 2018. Club G argued that in its submissions, Club A also
recognized that Club E was the new club and not Club G.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the
Chamber took note that the present matter was submitted to FIFA on 31 August 2018.
Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural
Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition 2019), it is competent to
decide on the present litigation, which concerns an employment-related dispute with an
international dimension between a club of Country B, an player of Country D, a club of
Country F and a club of Country H.
3.
In this respect, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 12 June 2019 by means of which the parties were
informed of the composition of the Chamber, the member XX and the member Y did
not participate in the deliberations in the case at hand, due to the fact that the member
XX was unable to participate due to certain personal circumstances and that, in order to
comply with the prerequisite of equal representation of club and player representatives,
also the member Y did not participate and thus the Dispute Resolution Chamber
adjudicated the case in presence of three members in accordance with art. 24 par. 2 of
the Regulations.
4.
Furthermore, the DRC analysed which edition of the regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2019) and considering that the present matter was submitted to FIFA on
31 August 2018, the June 2018 edition of said Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the present matter as to the
substance.
5.
Having established the foregoing, and entering into the substance of the matter, the
Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will refer only
to the facts, arguments and documentary evidence which it considered for the
assessment of the matter at hand. In particular, the Chamber recalled that in
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 11 of 20
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.
6.
From the outset, the DRC noted that from the allegations and arguments presented by
the parties involved in the present matter, in order to be able to establish whether, as
claimed by Club A, a breach of contract had been committed by the player, it should
first of all pronounce itself on the issue of the validity of the contract signed by the
player with Club A on 7 August 2018, i.e. whether said document consists in a valid and
biding employment contract between Club A and the player.
7.
In this respect, the DRC took note that prior to the signing of the contract, Club E and
Club A had been negotiating with the purpose of entering into a transfer agreement
for the permanent transfer of the player from the former to the latter. The DRC duly
noted that although no transfer agreement had been formally signed between the
parties, on 7 August 2018, Club E accepted the offer provided by Club Afor a transfer
fee of EUR 3,000,000 via email.
8.
In this context, the DRC further underlined that the player did not challenge having
signed the contract on 7 August 2018, but rather argued that as the document was in
Spanish, he could not understand it. The DRC also took note that the player first argued
that he was misled into signing the contract as he believed that a transfer agreement
between Club E and Club A would be formalized. The player also added that since no
transfer agreement had been signed, the contract could not be valid. Notwithstanding,
the DRC emphasised that the player in his duplica admitted that he signed the contract
with Club A willingly with the final purpose of joining it.
9.
On this point, the DRC noted that both Club E and Club G argued that without a valid
transfer agreement signed between Club A and Club E, the contract could not be
deemed a valid and binding employment contract. Both parties also emphasized that
the player did not understand Spanish, the language in which the document was
drafted. Club E further invoked art. 18 par. 3 and 5 of the Regulations arguing that
since Club A did not have the consent of Club E when it signed the player, the contract
could not be valid and biding.
10.
With respect to the player’s allegation that the contract was in Spanish, a language that
he presumably does not understand, the Chamber deemed it fit to emphasise that in
accordance with the constant jurisprudence of the DRC, a party signing a document of
legal importance without knowledge of its precise contents, as a general rule, does so
on its own responsibility. Consequently, the Chamber concluded that such argument
could not be upheld. The Chamber felt comfortable with this conclusion in view of the
unequivocal acknowledgment of the player at a later stage regarding his intention to
conclude a contract with Club A.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 12 of 20
11.
With this established, the Chamber went on to analyse the Respondents’ argumentation
that since no transfer agreement had been formalized and signed between Club A and
Club E, the contract should be rendered invalid. First of all, the DRC considered
appropriate to highlight that the transfer agreement and the employment contract are
two separate agreements with different objects and parties. Furthermore, the DRC
considered of the utmost importance to highlight that, in principle, the validity of the
employment contract cannot be made conditional upon the formalization of a transfer
agreement, which is a legal act between clubs on which the player has no influence.
12.
In any case, the DRC put forward that the contract did not contain a clause which would
subject the validity of the contract to the signature of a transfer agreement between
Club A and Club E.
13.
For these reasons, the members of the Chamber decided to reject the Respondents’
argumentation in this regard.
14.
Regarding the argumentation of Club Ethat as per art. 18 par. 3 and 5 of the
Regulations, the contract could not be deemed a valid and binding employment
contract, the DRC noted that these provisions do not concern the validity of an
employment contract but rather the steps which a club must follow prior to concluding
an employment contract with a player (art. 18 par. 3), respectively the consequences for
a player concluding two employment contracts covering the same period (art. 18 par. 5),
and therefore did not endorse Club E’ line of argumentation in this respect.
15.
Finally, the Chamber was eager to underline that not only had the player signed the
contract, but he had also signed a registration request with the Football Federation of
Country B, and went through a medical examination, which was mentioned as
mandatory, in the contract, thus, in the opinion of the Chamber, demonstrating a
strong will of the player to join Club A under the clear terms defined in the contract.
16.
On account of all of the above, the members of the Chamber unanimously concluded
that a valid and binding employment contract had been entered into by and between
the player and Club A on 7 August 2018.
17.
Having established that a valid and legally binding employment contract had been in
force between the player and Club A, the Chamber went on to analyse as to whether
such contract had been breached and, in the affirmative, which party is to be held liable
for such possible breach.
18.
In this respect, the DRC first started by recalling that the player and Club A had signed
an employment contract valid as from 7 August 2018 until 30 June 2022, and that on 8
August 2018, the player left Club A and went back to Club E. The Chamber further
recalled that it is uncontested that on 12 August 2018, the player played an official
game with Club E, and that on 18 August 2018, he terminated the contract with Club A
arguing, initially, that he believed that no valid contract had been signed since the
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 13 of 20
transfer agreement had not been formalized, that he did not understand that he was
signing an employment contract, and that he was misled by Club A and an
intermediary.
19.
The Chamber further recalled that in his duplica, the player asserted that he actually
intended to sign the contract with Club A, wanted to join the club, and regretted
signing the termination letter as well as that he was pressured by Club E to sign the
termination letter even though he did not agree with the terms of said letter.
20.
Taking all of the above into account, the Chamber was of the unanimous opinion that
the player did not provide any valid reason as to the termination of the contract with
Club A, and what is more, that he actually acknowledged that he regretted signing said
termination.
21.
On account of the above, the DRC was of the view that the player unilaterally
terminated the contract without any valid reason, and consequently, is to be held liable
for the early termination of the employment contract without just cause.
22.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just cause
by the player.
23.
As a consequence of the aforementioned conclusion, the DRC established that, in
accordance with art. 17 par. 1 of the Regulations, the player is liable to pay
compensation to Club A. Furthermore, in accordance with the unambiguous contents of
art. 17 par. 2 of the Regulations, the Chamber established that the new club shall be
jointly and severally liable for the payment of compensation. In this respect, the
Chamber was nonetheless eager to point out that the joint liability of the new club is
independent from the question as to whether the new club has induced the contractual
breach. This conclusion is in line with the well-established jurisprudence of the Chamber
and has been confirmed by CAS.
24.
With regards to the identity of the new club, the Chamber duly considered that the
present matter is not a straight forward affair in this respect and required a thorough
examination in order to determine the identity of the new club. The DRC further noted
that both Club E and Club G deemed that they, respectively, were not the new club and
provided several arguments in this respect.
25.
In this regard, the DRC recalled that Club E argued that it cannot be considered the new
club as it was, prior to the breach of contract of the player, his former club. Club E
added that the player was continuously registered with Club E as from the beginning of
his contract with Club E in 2016 until his transfer to Club G and subsequent registration
on 24 August 2018.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 14 of 20
26.
The DRC recalled that Club G on its end argued that it should not be considered the
new club, as the player left Club A and went back to Club E where he resumed his
obligations towards Club E, to the benefit of the latter since he played an official game
with Club E.
27.
In this regard, the DRC took into account that in accordance with the FIFA Commentary
on the Regulations for the Status and Transfer of Players, “whenever a player has to pay
compensation to his former club, the new club, i.e. the first club for which the player
registers after the contractual breach, shall be jointly and severally liable for its
payment.” In this context, the DRC found it important to underline that in the matter at
hand, the player was in fact never registered with Club A, and hence he remained
registered with Club E, until he was finally registered with Club G on 24 August 2018.
28.
In continuation, the DRC was of the firm opinion that in the sense of art. 17 par. 2 of
the Regulations and taking into account the specificity of the case at hand, the new
club should be understood as the club benefitting directly from the breach of the
contract by the player. With that in mind, the members of the Chamber reached a
consensus that Club E was the club which benefitted directly from the breach as the
player went back to Club E following the signing of the employment contract with Club
A, and was subsequently transferred by Club E to Club G in exchange of a transfer fee
of EUR 4,000,000.
29.
Indeed, it needs to be emphasised that due to the breach of contract of the player, Club
E was able to transfer the player to Club G in exchange of a transfer fee of EUR
4,000,000 which was higher than the amount initially agreed upon by Club E and Club A
of EUR 3,000,000, and therefore, without a doubt, benefitting directly in the form of a
profit of EUR 1,000,000 from the breach of contract by the player.
30.
Consequently, the members of the DRC concluded that Club E is to be considered the
new club of the player in the sense of art. 17 par. 2 of the Regulations.
31.
Having stated the above, the Chamber focussed its attention to the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly pointed out that, in accordance with art. 17 par. 1 of
the Regulations, the amount of compensation shall be calculated, in particular and
unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including in particular the remuneration and other benefits due to
the player under the existing contract and/or the new contract(s), the time remaining
on the existing contract up to a maximum of five years as well as the fees and other
expenses paid or incurred by the former club (amortised over the term of the contract)
and whether the contractual breach falls within a protected period. The DRC recalled
that the list of objective criteria is not exhaustive and that the broad scope of criteria
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 15 of 20
indicated tends to ensure that a just and fair amount of compensation is awarded to
the prejudiced party.
32.
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
reverted to the two clauses of the contract invoked by the Claimant in support of its
claim for compensation.
33.
The Chamber recalled art. 1.2 and 1.3 of the annex to the contract provide that “the
player may terminate this employment contract without being subject to stability or
binding terms […] as long as he indemnifies the club in the amount and terms
established below by mutual agreement between the parties and absolute freedom.
[…] [the player] must pay as compensation to Club A on the date of termination and in
cash, the amount of EUR 40,000,000, plus the corresponding taxes […].”
34. In this regard, the DRC took note of the argumentation of the Claimant according to
which the amount of EUR 40,000,000 must be awarded to it as compensation for breach
of contract, in application of the employment contract, in particular art. 1.3 of the
annex to the contract. Club A added that that clause is valid in application of Country B
law.
35. In this respect, the Chamber duly analysed the contents of said clause and was of the
unanimous opinion that the amount provided in it was clearly and grossly
disproportionate and that said amount cannot be used as the basis for determining the
compensation for breach of contract in this matter. Therefore, the DRC decided to
disregard such clause.
36.
With regards to art. 1.4 of the annex to the contract, the DRC recalled that such clause
would be applicable in the case of a termination by Club A. In the matter at hand, the
contract was terminated by the player, consequently the scenario provided by art. 1.4 of
the annex did not happen in the matter at hand.
37.
In light of the above, the Chamber considered that the analysed clauses cannot be
considered by the DRC when establishing the amount of compensation for breach of
contract.
38.
As a consequence, the members of the Chamber determined that the amount of
compensation payable in the case at stake had to be assessed in application of art. 17
par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. In this regard, the Dispute Resolution
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 16 of 20
Chamber stated beforehand that each request for compensation for contractual breach
has to be assessed by the Chamber on a case-by-case basis taking into account all
specific circumstances of the respective matter.
39.
Consequently, in order to estimate the amount of compensation due to Club A in the
present case, the Chamber determined that an objective criteria is the market value of
the player at the time of termination. In this regard, the DRC recalled that the player
terminated the contract on 18 August 2018. The DRC further recalled that on 22 August
2018, i.e. 4 days after the termination, the player was transferred to Club G for the total
amount of EUR 4,000,000.
40.
In this regard, the members of the Chamber were of the unanimous opinion that the
amount of money a club is willing to pay for the transfer of the player at practically the
day of the breach, can be considered an objective indicator of the market value of the
player at the date of breach.
41.
Taking into account this objective criteria and the specific facts of the matter at hand,
the Dispute Resolution Chamber decided that the total amount of EUR 4,000,000 was to
be considered a reasonable and justified compensation for breach of contract in the
case at hand.
42.
As a consequence, on account of all of the above-mentioned considerations, the
Chamber decided that the player must pay the amount of EUR 4,000,000 to the
Claimant as compensation for breach of contract. Furthermore, in accordance with art.
17 par. 2 of the Regulations, the Respondent 2, i.e. Club E is jointly and severally liable
for the payment of the relevant compensation.
43.
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 player 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.
44.
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.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 17 of 20
45.
In this regard, the Chamber recalled that the breach of contract by the player had
occurred during the applicable protected period. Consequently, the Chamber decided
that, by virtue of art. 17 par3 of the Regulations, the player had to be sanctioned with a
restriction of four months on his eligibility to participate in official matches.
46.
Finally, the members of the Chamber turned their attention to the question of whether,
in view of art. 14 par. 4 of the Regulations, the player’s new club, i.e. Club E, must be
considered to have induced the player 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.
47.
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.
48.
With the above in mind, the members of the Chamber considered it important to recall
that, in consideration of the entire circumstances of the matter at hand, the timeline of
events, the documentation on file and especially the duplica of the player in which he
explicitly explained that he only signed the termination letter, under pressure and
following a threat from Club E, the DRC formed the firm belief that Club E was in fact
involved directly with the player’s decision to unilaterally terminate his employment
contract with the Claimant.
49.
In light of the aforementioned and given that Club E did not provide any specific or
plausible explanation as to its possible non-involvement in the player’s decision to
unilaterally terminate his employment contract with the Claimant, the DRC had no
option other than to conclude that Club E 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 player to unilaterally terminate his employment contract with
the Claimant.
50.
In view of the above, the Chamber decided that in accordance with art. 17 par. 4 of the
Regulations, Club E 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. 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.
51.
In conclusion, the DRC decided that the claim of Club A is partially accepted and that
the player has to pay to Club A EUR 4,000,000 as compensation for the unilateral and
premature termination of the contract without just cause during the protected period.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 18 of 20
In this respect, the DRC also determined that Club E is jointly and severally liable for the
payment of the above-mentioned amount of compensation to Club A.
52.
Furthermore, the Chamber decided that the player shall be sanctioned with a restriction
of four months on his eligibility to participate in official matches.
53.
And finally, the Chamber established that Club E 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.
54.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by Club A are rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent 1, Player C, is ordered to pay to the Claimant w ithin 30 day s as from
the date of notification of this decision, compensation for breach of contract in the
amount of EUR 4,000,000.
3.
The Respondent 2, Club E, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
In the event that the amount due to the Claimant in accordance with above-mentioned
point 2 is not paid within the stated 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.
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.
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 19 of 20
8.
Any further claims lodged by the Claimant are rejected.
*****
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl. CAS directives
Club A, Country B / Player C, Country D, Club E, Country F
and Club G, Country H
Page 20 of 20