Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
on the claim presented by the club,
Club S, from country R,
as Claimant
against the player,
Player G, from country M,
as Respondent 1
and the club,
Club N, from country M
as Respondent 2
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 July 2008, the Club S (hereinafter referred to as club S or Claimant), and the Player
G (hereinafter referred to as player or Respondent 1) signed an employment contract
entering into force as from the signature date until 31 May 2010, i.e. valid during two
sporting seasons.
2.
According to art. 3 of the employment contract, the player was to receive the following
amounts:
For the sporting season 2008/09:
- USD 85,000 upon signature;
- USD 4,800 (12 x USD 400, as from July 2008 until June 2009);
- USD 160,200 as “Transfer fee” (10 x USD 16,020, as from August 2008 until May 2009).
For the sporting season 2009/10:
- USD 85,000 payable on 25 August 2009;
- USD 4,800 (12 x USD 400, as from July 2009 until June 2010);
- USD 160,200 as “Transfer fee” (10 x USD 16,020, as from August 2009 until May 2010).
3.
On 24 December 2008, the club lodged a claim in front of FIFA against the player,
requesting the termination of the aforementioned contract as well as compensation as
a result of the player’s alleged breach of contract.
4.
In this respect, the club held that in spite of having paid to the player all the amounts
that were contractually due, in particular the amount of USD 101,820, the player left
the club without any authorisation or communication on 22 October 2008.
5.
The club stressed that the player’s proven absence, based on notary reports, constitutes
a breach of contract and asserted that, since he did not return to the club, it had no
other option but to terminate the contract “with cause” after two months of absence.
6.
Therefore, the club asked that the player be ordered to pay USD 500,000, corresponding
to the total value of the employment contract.
7.
In addition, the club asked that sporting sanctions be imposed on the player.
Club S, from country R / Player G, from country M and Club N, from country M
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8.
Furthermore, the club claimed that in line with the contents of art. 17 of the
Regulations on the Status and the Transfer of Players, the player’s new club is jointly
liable for the payment of the compensation the player is sentenced to pay to the club.
9.
In his reply to the claim, the player firstly denied that he left without informing the club
but that, to the contrary, the club had authorised him to return to country M in order
for him to have a knee injury treated. The player stressed that this permission was given
to him orally, on the basis of the principle of good faith.
10.
The player continued by explaining that, since he was injured, he was valueless for the
club, who authorised him to return to country M to get a treatment and that it is in this
context that he was afterwards legitimately transferred to another club in country M,
club N, and that the club “liberated” him.
11.
In this respect, the player asserted that the club cannot hold that it had no information
regarding his alleged disappearance and his whereabouts for such a long period of
time, since the club as well as the Football Federation from country R authorised his
transfer to this club in country M.
12.
Furthermore, the player deemed that, should he be found guilty of having breached the
contract and the claim of the club be accepted, the amount of compensation claimed is
excessive, as it did not take into account the criteria set out in art. 17 of the
aforementioned Regulations. In this respect, the player stated that as he was only
receiving USD 800 per month, and in view of the fact that there was only a “little more
than two years” of the employment contract left to execute, the claimed amount of
USD 500,000 is not justified and has to be diminished.
13.
In spite of having been invited to present its position on the club’s claim, no answer was
received from the player’s new club, club N (hereinafter also referred to as Respondent
2).
14.
In its replica, the club maintained its claim in full. In particular, it stressed that it had
fully paid the player’s receivables and never permitted him to leave.
15.
In his duplica, the player reiterated that the club authorised him to return to country M
to receive a treatment for his knee injury and afterwards permitted his transfer to
another club.
16.
In this respect, the player asserted that both the Football Federation of country M and
the Football Federation of city H of country M were able to register him with the club
from country M “without any problem” whereas, according to the player, said
Federations can only register players provided that, inter alia, the player’s International
Transfer Certificate (ITC) and authorisation documents are issued. Therefore, the player
is of the opinion that his transfer “can only [have been] made with all the copies of the
necessary documents related to [him], including the club S authorisation or other
documents, such as a notification of unilateral termination with the club.”
Club S, from country R / Player G, from country M and Club N, from country M
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17.
In light of the above, the player considered that he would not have been able to be
transferred without the club being aware of it, or having implicitly agreed to the
transfer at stake, even more in view of the alleged fact that the information regarding
his transfer was public, and even available on the internet. Therefore, the club could
have opposed to the transfer if it so wished.
18.
In view of the above, the player considered that the club authorised his transfer and
thus is not in a position to claim compensation against him.
19.
Furthermore, and in order to show that the club was not only aware of but also
authorised the player’s posterior transfers, the player submitted two documents issued
by the Football Federation of city H of country M, respectively dated 26 January 2009
and 18 August 2009.
20.
According to the player, such documents are extracts from mandatory registers held by
the Federation of city H of country M. The player asserted that said registers need to be
executed in order for players to be able to play in official matches and that before
entering the players’ names in such register, the Federation of city H of country M has
to analyse as to whether the formal procedures for player transfers were respected,
allegedly including the authorisation of the player’s former club of the player’s new
registration.
21.
In this respect, the player indicated that his name appears on said documents, the first
time on the occasion of his joining the club N, allegedly on loan from club S, and the
second time on the occasion of his definitive transfer to the club A from country P.
22.
The player affirmed that, on this basis, it is clear that the club not only knew where the
player was, but necessarily agreed to his transfers. In light of such information, the
player held that the club’s claim had to be rejected.
23.
In addition, the player stressed that he never received any treatment for his knee injury
in country R. Therefore, it is on the basis of good faith, and because he wanted to heal
and be able to play again that he wanted to return to country M. In this context, the
club would have released him and, allegedly, “even allowed him to negotiate himself
his transference to another club.”
24.
Finally, the player reiterated that, if he was found to be in breach of contract, the
amount payable as compensation should be reduced in view of the criteria contained in
art. 17 of the aforementioned Regulations.
25.
Club S considered that the player had acknowledged having breached the contract since
he acknowledged having played at other clubs.
26.
Furthermore, the club considered that the facts that he got to play with other teams
and that an ITC was issued in view of said FIFA Regulations do not justify the player’s
sudden departure from the club.
Club S, from country R / Player G, from country M and Club N, from country M
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27.
In his final comments, the player insisted that the club was not interested in his services
as he was injured, which is why it accepted the player’s return to country M for
treatment.
28.
In continuation, the player specified that since his recovery was taking longer than
expected, he lost his chance to come back to play in Europe and that, since he was
already in country M, the club decided to have him play there until his full recovery,
before eventually returning to country R. Hence, the club allegedly transferred him on a
loan basis to club N, but, since he was still not recovering well enough, the club finally
definitively transferred him to club N. In this respect, the player stressed that during this
period of time, he was still willing to return to country R, because he was receiving a
good salary from club S, more than what he received in country M, and pointed out that
the sporting challenge was bigger in country R. According to the player, he had no
reason to disappear from the club and it is rather the club who, in fact, dismissed him.
29.
In this regard, the player reiterated that his transfers to country M took place with the
club’s participation, as its consent was necessary to register the player in the abovedescribed local register. The player alleged that club S signature appears on contracts
signed with club N.
30.
Furthermore, the player pointed out that his transfer from club S to club N would not
have been possible through Transfer Matching System (TMS), the Football Federation of
country R and the Football Federation of country M without all the parties’ agreement
and the uploading of the necessary documents. Since the transfer took place, this means
that said transfer was permitted by club S and made in conformity with the applicable
regulations.
31.
Additionally, the player pointed out that the club’s termination of the contract is not
evidenced by any document on file and asserted that he never received any termination
notice at his contractual address.
32.
In view of the aforementioned, the player insisted that the club is acting in bad faith
and is not in a position to claim any compensation as it had agreed to the player’s
transfer.
33.
Also, the player rejected the club’s calculation of the amount of compensation claimed,
since, contrary to what it alleged, the club had the possibility to replace him during the
mid-season registration period.
34.
FIFA asked the Football Confederation from country M and the Football Federation
from country R to submit copies of any ITC related to the player, if available.
35.
In reply, the Football Federation of country M sent a copy of an ITC dated 22 January
2009 it had received from the Football Federation of country R which bears the player’s
name as well as the club S name as former club.
Club S, from country R / Player G, from country M and Club N, from country M
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36.
FIFA was further provided with copies of the employment contracts that the player
entered into during the period of time between October 2008 and 1 June 2010.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 24 December
2008. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber edition 2008 (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2
of the Procedural Rules).
2.
Subsequently, the members of the Dispute Resolution Chamber referred to art. 3
par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1
and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2010) the Chamber is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international
dimension between a club from country R, a player of country M as well as a club
from country M.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2010 and 2009), and considering that the present claim was lodged on 24 December
2008, the 2008 edition of said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 10 August 2012 by means of which the
parties were informed of the composition of the Chamber, the member X and the
member V refrained from participating in the deliberations in the case at hand, due
to the fact that the member X has the same nationality as the Respondent 1 and the
Respondent 2. In order to comply with the prerequisite of equal representation of
club and player representatives, the member V also refrained from participating
and, thus, the Dispute Resolution Chamber adjudicated the case in presence of
three members in accordance with art. 24 par. 2 of the Regulations.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber firstly acknowledged that, on 1 July 2008, the Claimant and the
Respondent 1 concluded an employment contract valid during 2 sporting seasons,
i.e. as from 1 July 2008 until 31 May 2010.
Club S, from country R / Player G, from country M and Club N, from country M
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6.
The members of the Chamber further acknowledged that the Claimant claimed that
the Respondent 1 unilaterally breached the employment contract by having left the
club on 22 October 2008 without any authorisation and communication. On such
basis, the Claimant deemed that the Respondent 1 shall be sentenced to pay
compensation for breach of contract to the Claimant in the amount of USD 500,000,
which, according to the Claimant, corresponds to the total value of the employment
contract signed by and between the Claimant and the Respondent 1. In addition,
the Claimant asked that sporting sanctions be imposed on the Respondent 1. The
members of the Chamber further acknowledged that the Claimant submitted that
the Respondent 1’s new club, i.e. Club N, shall be jointly liable for the payment of
the compensation for breach of contract to be paid by the Respondent 1 to the
Claimant. The Chamber further noted that the Claimant asserted having paid the
total amount of USD 101,820 to the player and that it presented various documents
corresponding to payments between 30 June 2008 and 24 September 2008, which
have not been contested by the Respondent 1.
7.
In continuation, the Chamber duly took note of the Respondent 1’s reply to the
claim lodged against him and, in particular, that the Respondent 1 denied having
left the Claimant without having been authorised to do so. In this respect, the
Chamber noted the Respondent 1’s assertion in accordance with which the Claimant
would have orally authorised him to leave and, more precisely, to return to country
M in order to receive a medical treatment in relation with a knee injury the
Respondent 1 would have sustained.
8.
In view of the above-mentioned considerations, the Chamber held that the main
issue it, first and foremost, had to deal with was to determine as to whether the
Respondent 1’s departure from the Claimant, which was not denied by the
Respondent 1, was authorised or not by the Claimant. Indeed, and based on the
Respondent 1’s own statement, the Chamber established that the Respondent 1
acknowledged having left the Claimant on or about 22 October 2008, but only
challenged the factual circumstances under which said departure took place.
9.
In this context, the Chamber deemed fit to recall the legal principle of burden of
proof contained in art. 12 par. 3 of the Procedural Rules, in accordance with which
any party claiming a right on the basis of an alleged fact shall carry the burden of
proof.
10.
Applying the aforementioned legal principle to the situation at hand, the Chamber
reverted to the facts at the origin of the matter at hand and carefully analysed the
documentation submitted by the parties.
11.
After having proceeded to such analysis, the members of the Chamber unanimously
reached the conclusion that the Respondent 1 had not submitted any evidence
establishing that the Claimant had given to the Respondent 1 its authorisation to
leave the club on or about 22 October 2008. As a result thereof, the Chamber
Club S, from country R / Player G, from country M and Club N, from country M
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concluded that the Respondent 1 had failed to prove that the Claimant had
authorised him to leave on 22 October 2008.
12.
The Chamber then turned its attention to the Respondent 1’s allegation in
accordance with which his absence was approved by the purpose of receiving a
medical treatment in country M in connection with a knee injury. In this regard, the
members of the Chamber noted that the Claimant, for its part, had not denied the
player’s alleged knee injury, however, the Chamber found that the Respondent 1
had not submitted any documentary evidence corroborating that he underwent a
medical treatment in country M with or without the Claimant’s approval.
13.
In view of the above, the Chamber concluded that the Respondent 1’s argument in
accordance with which his absence had been allowed by the Claimant in connection
with and related to medical reasons, was absolutely unproven, and therefore, had
to be rejected.
14.
In continuation, the Chamber focussed its attention on the Respondent 1’s
argumentation, in accordance with which his successful registrations in country M
necessarily required the issuance of the relevant ITC by the Football Federation of
country R on the one hand, as well as the Claimant’s authorisation for the
Respondent 1’s registration with another club on the other hand.
15.
In this regard, the Chamber deemed it fit to outline that, as a general rule, the
issuance of an ITC between associations does not constitute or imply a waiver of a
player’s club of origin of any employment-related claims against a player whose
transfer is materialised via such ITC, nor, potentially, against the new club with
which a player is registered on the basis of such ITC.
16.
In view of the above, the Chamber underlined that by either accepting the issuance
of the ITC, or, as the case may be, by not having opposed itself to the issuance of the
relevant ITC in January 2009 in favour of the Football Federation of country M, the
Claimant did not waive its right to claim against the Respondent 1 and his new club,
nor did the Claimant approve the player’s absence as of October 2008. The Chamber
highlighted that, in fact, the Claimant lodged its claim in front of FIFA against the
Respondent 1 and his new club as early as on 24 December 2008.
17.
In continuation, the Chamber duly noted the Respondent 1’s reference to the
mandatory administrative domestic registers relating to the registration of players.
18.
In this regard, while referring to art. 12 par. 3 of the Procedural Rules, the members
of the Chamber pointed out that the Respondent 1 failed to submit the regulatory
framework related to said administrative registers and, consequently, the
Respondent 1 was not able to corroborate his allegations in this context.
Nonetheless, the Chamber referred to its foregoing consideration with respect to
Club S, from country R / Player G, from country M and Club N, from country M
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the ITC and deemed that the same consideration most probably would apply to the
registration of the player in domestic registers.
19.
In view of the aforementioned, and based on the documentation available on file,
the Chamber considered that the Respondent 1’s argumentation related to his
registration in country M with another club could not be followed. Hence, the
Chamber found that, at this stage of its analysis, it was still to be considered that the
Respondent 1 had not brought any documentary evidence showing that the
Claimant had agreed to the Respondent 1’s departure from the club in October
2008.
20.
The Chamber then turned its attention to the Respondent 1’s statement, in
accordance with which the Claimant’s signature is visible on the contracts it signed
with the Respondent 2 in view of the Respondent 1’s transfer (cf. point I./10. above).
21.
In this regard, and once more referring to art. 12 par. 3 of the Procedural Rules, the
Chamber found that no such contracts allegedly signed between the Claimant and
the Respondent 2 had been made available for analysis. In light of the above, the
members of the Chamber held that the Respondent 1’s assertion in accordance with
which the Claimant not only knew but had approved the Respondent 1’s transfer to
the Respondent 2 was not evidenced by any document and was therefore rejected.
22.
In view of all the aforementioned, the Chamber held that the Respondent 1 had
failed to prove that the Claimant authorised him to leave the club on 22 October
2008. As a consequence thereof, the Chamber concluded that the Respondent 1 had
breached the employment contract without just cause on 22 October 2008.
23.
This being established, the Chamber stated that it, therefore, had to assess the
consequences of this unilateral termination of the employment contract without
just cause, in accordance with the provisions provided for by Chapter IV of the
Regulations.
24.
As a matter of fact, by unilaterally and prematurely terminating the employment
contract with the Claimant without just cause, in accordance with article 17 par. 1 of
the Regulations, the Respondent 1 is liable to pay compensation to the Claimant.
25.
Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of
the Regulations, the Chamber established that the Respondent 1’s new club, i.e. the
Respondent 2, shall be jointly and severally liable for the payment of compensation.
In this respect, the Chamber was eager to point out that the joint liability of a
player’s new club is independent from the question as to whether this new club has
committed an inducement to contractual breach. This conclusion is in line with the
well-established jurisprudence of the Chamber that was repeatedly confirmed by
the Court of Arbitration for Sport (CAS).
Club S, from country R / Player G, from country M and Club N, from country M
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26.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1
of the Regulations, the amount of compensation shall be calculated, in particular
and unless 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, the
time remaining on the existing contract up to a maximum of five years, the fees and
expenses paid or incurred by the former club (amortised over the term of the
contract) and whether the contractual breach falls within the protected period.
27.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable in the event of breach of contract. In this regard, the Chamber established
that no such compensation clause was included in the employment contract at the
basis of the matter at stake.
28.
As a consequence, the members of the Chamber determined that the amount of
compensation for breach of contract in the present matter had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. Furthermore, the Chamber
highlighted that each request for compensation for breach of contract has to be
assessed on a case-by-case basis.
29.
Having said this, the Chamber turned its attention to the remuneration and other
benefits due to the player under the existing contract and/or the new contract. The
members of the Chamber deemed it important to emphasise that the wording of
article 17 par. 1 of the Regulations allows the Chamber to take into account both
the existing contract and any new contract(s) in the calculation of the amount of
compensation.
30.
The Chamber recalled that the breach of contract in the case at hand occurred at
the time when the relevant employment contract was still to run for more than
nineteen months, i.e. as from 22 October 2008 until 31 May 2010, equalling the
value of USD 381,760 (i.e. the contractual remuneration falling due as of October
2008 until the end of May 2010).
31.
On the other hand, the Chamber noted that subsequent to the moment in time
when the breach of contract occurred starting as from November 2008 until 31 May
2010, the remuneration of the Respondent 1 under the new employment contracts
has been consistently low. In fact, during the period of time overlapping the
Club S, from country R / Player G, from country M and Club N, from country M
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remaining duration of the employment contract signed with the Claimant, the
Respondent 1 earned, at the most, the total amount of USD 3,143.
32.
In this regard, the Chamber recalled that the Claimant had not contested the
statement of the Respondent 1, in accordance with which the player had sustained a
knee injury. In this respect, the Chamber considered that the genuine existence of a
knee injury may have had a negative impact on the Respondent 1’s fitness level and
the value attributed to the player’s services.
33.
In continuation, and referring to art. 12 par. 3 of the Procedural Rules, although
bearing in mind that the Claimant had not specifically included any of these costs in
its claim, the Chamber established that it had no indication at its disposal regarding
possible fees and expenses paid or incurred by the Claimant for the acquisition of
the player and that therefore, it could not further consider that criterion in the
specific case at hand, whereas according to art. 17 par. 1 of the Regulations such
fees and expenses may be included as of the criteria to be taken into account in the
calculation of compensation.
34.
Furthermore, the Chamber Took into account that at the time of the early
termination of the contract by the player without just cause, the Claimant had not
fully complied with its obligations. Indeed, the Claimant substantiated that it paid
the amount of USD 101,820 to the Respondent 1, whereas at the time when the
breach occurred, i.e. 22 October 2008, the total amount of USD 118,240 had fallen
due (including the remuneration of USD 16,420 for September 2008).
35.
On account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the Respondent 1 must pay the amount of
USD 150,000 to the Claimant as compensation for breach of contract, which was
considered a fair and adequate amount of compensation in the present matter.
Furthermore, The Chamber decided that the Respondent 2, i.e. club N, is jointly and
severally liable for the payment of the relevant compensation.
36.
The Chamber concluded its deliberation by rejecting any further claim lodged by the
Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club S, is partially accepted.
2.
The Respondent 1, Player G, has to pay to the Claimant compensation for breach of
contract amounting to USD 150,000 within 30 days as from the date of notification
of this decision.
Club S, from country R / Player G, from country M and Club N, from country M
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3.
In the event that the aforementioned amount 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.
4.
The Respondent 2, club N, is jointly and severally liable for the payment of the
aforementioned amount.
5.
Any further claim lodged by the Claimant is rejected.
6.
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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
______________________
Jérôme Valcke
Club S, from country R / Player G, from country M and Club N, from country M
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Secretary General
Club S, from country R / Player G, from country M and Club N, from country M
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