Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 August 2013,
in the following composition:
Geoff Thompson (England), Chairman
John Newman (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club,
Club S, from country B
as Claimant
against the player,
Player F, from country B
as Respondent 1
and the club,
Club P, from country G
as Respondent 2
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
After having been registered with the Club S, from country B (hereinafter:
Claimant), since 2003 under various employment contracts and addenda, the
country B player, Player F, born in May 1987, (hereinafter: player or Respondent 1)
and Club S entered into an employment contract, dated 1 January 2009,
indicating a period of validity as from 1 January 2009 until 31 December 2010
(hereinafter: Club S contract).
2.
In accordance with the Club S contract, the player was to receive a monthly salary
of currency of country B 30,000 and, as of 1 January 2010 until 31 December 2010,
currency of country B 40,000.
3.
The Club S contract further contains a clause (referred to as “penalty clause”)
stipulating inter alia that in the event of breach of contract by the player for the
purpose of an international transfer, the amount of USD 40,000,000 is imposed as
a penalty on the player and that this amount shall not have any restrictions.
4.
On 1 August 2007, Club S and the player signed an image rights agreement valid
as from 1 August 2007 until 31 December 2010. This image rights agreement
refers to the fact that the player and Club S were contractually bound by means
of an employment contract, which was signed on 30 March 2004, until 31
December 2008, and establishes inter alia that the parties intended to extend the
term of their employment relationship until 31 December 2010.
5.
On 6 January 2009, the player lodged a claim against Club S in front of a country
B labour court with the request to declare the Club P contract invalid as he was
allegedly forced to sign said contract already in August 2007, and, thus, it
allegedly was post-dated and invalid in accordance with national law, or
alternatively, to decide that the Club S contract was terminated as he was not
interested in contracting with Club S after the expiry of his previous contract on
31 December 2008. The player further asked that he be authorised to freely
exercise his profession with any other sports club and asked for the issuance of
the relevant transfer certificate.
6.
On 7 January 2009, the country B court rendered a preliminary decision
pronouncing a stay of effects of the Club S contract until the issuance of the final
award.
7.
On 19 January 2009, the player signed an employment contract with the country
G club, Club P (hereinafter Respondent 2), valid as from 19 January 2009 until 30
June 2013. In accordance with this contract, the player was inter alia entitled to a
monthly salary of EUR 783 (12 x per year), a yearly Christmas bonus (1 monthly
Club S, from country B / Player F, from country B / Club P, from country G
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salary), a yearly Easter bonus (0,5 monthly salary), a yearly holiday allowance (0,5
monthly salary) as well as the amount of EUR 357,500 payable in instalments as
from 28 February 2009 until 30 November 2010 out of the total amount of EUR
920,000 until May 2013. According to the annex of this contract, the player was
further to receive various bonuses, EUR 1,500 per month for rental expenses and
the maximum amount of EUR 16,000 per year for air tickets.
8.
Allegedly on 22 January 2009, the country B Football Federation issued an
international transfer certificate (ITC) for the player on behalf of the country G
Football Federation.
9.
On 21 August 2009, the country B court rendered its final decision according to
which the Club S contract was considered valid and the player was considered to
have terminated it. Said court established that the player informed Club S that he
was no longer interested in maintaining the employment relationship on 10
December 2008.
10.
On 30 March 2010, Club S lodged a claim in front of FIFA against the player for
breach of contract as well as against Club P for inducement to breach of contract
asking that the player and Club P be instructed to pay compensation in the
amount of USD 40,000,000 in accordance with the mutually agreed contractual
“penalty clause” and with due consideration for country B law, or, alternatively,
the minimum amount of USD 19,000,000. Club S further asks that sporting
sanctions be imposed on both the player and Club P for breach of contract within
the protected period and inducement to breach of contract, respectively.
11.
Club S alleges that, in 2008, after it had learned through media reports that Club
P was enticing the player, it warned the country G club in writing that the player
was contractually bound to it by means of an employment contract to be effective
as from 1 January 2009 until 31 December 2010. According to Club S, Club P then
informed it that it would suspend its negotiations with the player.
12.
Club S asserts that the country B Football Federation was forced by court order to
issue the relevant international transfer certificate in order for the player to
transfer to country G.
13.
Club S further refers to a legal opinion it received via the country B Football
Federation, according to which the preliminary court decision was revoked by the
final decision, as a result of which the contract was breached by the player and
that, therefore, Club S was entitled to compensation.
Club S, from country B / Player F, from country B / Club P, from country G
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14.
Consequently, Club S sent an extrajudicial notice to the player imposing the fine
set out in the Club S contract, which, according to Club S, could not be delivered
to him.
15.
In the light of the country B court decisions and the player’s refusal to be served
notice to pay compensation for the unilateral termination of the Club S contract,
Club S lodged its claim in front of FIFA.
16.
Club S highlights that the amount of compensation sought is adequate bearing in
mind the player’s market value and his earnings at Club S including the image
rights payments.
17.
As regards the player’s market value, Club S stresses that the player was
repeatedly called up to play for the country B association team at youth level and
participated in the U-20 South American Championship and U-20 World Cup. Club
S further compares the player with the country B player, Player R, who was
allegedly called up as the player’s standby for association team matches and who
transferred to a country D club for the amount of USD 19,000,000.
18.
Club S further refers to the high value of the player’s services rendered at Club F,
who became champion in the country B league in 2009.
19.
In addition, Club S has borne all costs with respect to the player’s training and
education since the age of 16 until he turned 21, when he transferred to Club P.
20.
The player, for his part, dismisses Club S’ claim in full and highlights that the Club
S contract was not signed on 1 January 2009, as allegedly recognised by Club S
during the country B court proceedings and which can be noted from Club S’
submissions in the present matter, but on an earlier date, namely, in early May
2007. Therefore, on the basis of country B sports and civil law, the Club S contract
is null and void.
21.
The player further submits that, on 10 December 2008, he informed Club S of the
fact that he did not recognise the validity of, and thus was not willing to comply
with, the Club S contract. In this regard, he refers to his submissions in front of the
country B labour court.
22.
Having informed Club S of such fact as early as on 10 December 2008, according
to the player, should the Dispute Resolution Chamber consider the Club S contract
to be valid, the act committed by the player would not constitute a breach of
contract without just cause in the sense of art. 17 of the Regulations, as it is
legally impossible to terminate a contract that has never “begun” or entered into
force. In this regard, the player refers to the definition of the protected period, in
Club S, from country B / Player F, from country B / Club P, from country G
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accordance with which the relevant period of time follows the entry into force of
a contract (emphasis added by player). Equally, it cannot be argued that the
player entered into two employment contracts covering the same time period.
Consequently, should the Club S contract be considered valid, the player submits
that the act committed by him shall be qualified as “failure to take up the post”,
which, according to the player, is subject to art. 227d of the Swiss code of
Obligations and which situation is not included in the FIFA regulations.
23.
He further asserts that Club S’ claim is barred by the statute of limitations on the
basis of the Swiss Code of obligations, which code shall prevail over the FIFA
regulations as a lex specialis.
24.
The player further deems that Club S’ misrepresentation of the facts towards Club
P concerning his employment relationship harmed the player’s rights. In this
regard, he wonders why Club S informed Club P in December 2008 about a
contractual link with the player until December 2010, if the Club S contract at
stake was only signed on 1 January 2009. Furthermore, as a result of this
information, Club P interrupted the negotiations with him.
25.
If the Club S contract was really signed on 1 January 2009 only, the player points
out that his previous employment contract with Club S was set to expire on 31
December 2008 and that therefore he was entitled to negotiate with Club P as of
1 July 2008.
26.
The player deems that Club S was never really interested in his services but merely
seeking an economic benefit and impeding Club P to sign him as a “free agent”.
In this respect, the player refers to Club S’ fax dated 11 December 2008 addressed
to Club P, in which Club S inter alia confirms the alleged contractual link with the
player until December 2010 by means of a “preliminary agreement” and finally
offers Club P to contact them with a formal proposal for a definitive transfer.
27.
The player thus considers that Club S has acted in bad faith. Therefore, should the
Dispute Resolution Chamber deem that he terminated the Club S contract, he asks
that it be considered that he terminated the contract with just cause due to the
breach of good faith committed by Club S, which made it unsustainable for the
player to continue rendering his services to Club S.
28.
Should the Chamber dismiss his arguments, as regards the amount of
compensation, the player holds that the “penalty fee” claimed by Club S is
excessive and not justified taking into account his monthly salary under the Club S
contract. Equally, the alternative amount of USD 19,000,000 is considered
excessive by the player, for which amount Club S has not submitted any ground or
Club S, from country B / Player F, from country B / Club P, from country G
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evidence. In addition, the player submits that Club S has not suffered any loss due
to the alleged breach of contract.
29.
The player further holds that no sporting sanctions shall be imposed upon him, as
no breach within the protected period occurred and he asks that Club S be
ordered to reimburse his legal expenses in connection with this matter.
30.
In reply to the claim, Club P submits that it had received the information that the
player’s contract with Club S would expire on 31 December 2008 and that it
ceased its negotiations with the player as soon as Club S informed them on 11
December 2008 that the player had signed a preliminary agreement with Club S
extending his contract until December 2010.
31.
At Club P’ request, the country G Football Federation obtained confirmation from
the country B Football Federation on 13 January 2009 stating that the player was
free to negotiate with any club since he was out of contract by judicial decision.
32.
Club P stresses that after receipt of this confirmation, it entered into negotiations
with the player and an employment contract was signed on 19 January 2009. It
further points out that, on 22 January 2009, the country B Football Federation
sent the relevant international transfer certificate to the country G Football
Federation without any reservation, whereas a contractual dispute between the
player and Club S, under the FIFA regulations, would have been a valid reason not
to issue the requested ITC.
33.
Club P also presented a copy of Club S’ correspondence of 27 July 2009, in
accordance with which it asked Club P to pay training compensation based on the
player’s registration with it until 31 December 2008. According to Club P, this
confirms that Club S had accepted that the training period with it had ended on
31 December 2008.
34.
For these reasons, Club P stresses that it acted with due diligence, was bona fide
and rejects that it induced the player into signing an employment contract with
them.
35.
Club P further highlights that the decision taken by the country B labour court
cannot be applied in front of FIFA and is being used by Club S to seek
compensation from Club P, which was not a party to the local proceedings. Club P
holds that the dispute between Club S and the player is not within the scope of
the FIFA regulations.
36.
It further presented its own analysis of the alleged non-validity of the Club S
contract dated 1 January 2009, which can be summarised in that Club P held that
Club S, from country B / Player F, from country B / Club P, from country G
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the Club S contract was entered into and signed on a date (as early as in 2007)
other than the date stated therein, in order for Club S to have the possibility of a
unilateral renewal, since it had in possession all signed copies.
37.
In the event that the DRC would establish that the player was engaged by a
contract that was breached without just cause, as regards the amount of
compensation for breach of contract sought by Club S, Club P deems that the
amount claimed is disproportionate and based on an abusive penalty clause.
38.
Club P further deems that the alternative amount of EUR 19,000,000 sought by
Club S goes against the spirit of art. 17 of the FIFA regulations and points out that
the residual value of the Club S contract only amounts to EUR 312,148 and that
the player was to receive EUR 357,500 from Club P for the first two contractual
years. It further deems that it is based on an irrelevant transfer of another country
B player to a European club. Thus, should it be established that compensation is
payable, Club P asks that the amount does not exceed the residual value of the
disputed contract.
39.
Club P therefore asks that Club S’ claim be considered inadmissible. Alternatively,
it asks that Club S’ claim be rejected in full. Subsidiarily, it asks that it be
established that Club P acted bona fide, never induced the player to breach the
contract and that, thus, it has no obligation to pay any compensation.
40.
In July 2010, the player was transferred from Club P to the country B club Clube
Club F (hereinafter: Club F) on a permanent basis involving a transfer
compensation of EUR 366,000 and the entitlement of the Club P to receive 40%
on any future transfer compensation to be received by Club F. In addition,
according to the transfer agreement, Club P would be entitled to receive the
amount of EUR 500,000 in the event that Club F would terminate the player’s
employment contract before 31 August 2012 either mutually or by other reason
or create the circumstances under which the player would be allowed to
terminate the contract at Club F’s fault.
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 30 March 2010. Consequently, the Rules Governing the Procedures of the
Club S, from country B / Player F, from country B / Club P, from country G
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Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par.
2 and par. 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2
in combination with art. 22 lit. a) of the Regulations on the Status and Transfer of
Players (edition 2012) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns a dispute between a
country B player and a country B club in relation to the maintenance of
contractual stability where there has been an ITC request.
3.
The Chamber then reverted to the argument of the Respondent 1, according to
whom the present matter is barred by the statute of limitations on the basis of
Swiss law. In this regard, the members of the Chamber referred to art. 25 par. 5 of
the aforementioned Regulations, 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. The
present claim having been lodged in front of the DRC on 30 March 2010 and the
event giving rise to the dispute having occurred in January 2009, the members of
the Chamber had to reject the respective argument of the Respondent 1 and
confirmed that the present petition was lodged in front of the DRC within said
two years’ period of time and is, thus, not barred by the statute of limitations in
accordance with art. 25 par. 5 of the aforementioned Regulations.
4.
In continuation, the members of the Chamber turned their attention to the claim
that was lodged by the Respondent 1 against the Claimant in front of the country
B labour court in January 2009 and the decisions passed by said labour court in
connection thereto, in order to ascertain that the present matter in front of the
DRC does not constitute a res iudicata. In this regard, the Chamber noted, in
particular, that the country B labour court decided, inter alia, that whereas the
termination of the Club S contract occurred at the initiative of the Respondent 1,
the nature thereof was not to be considered, because it would have exceeded the
limits of the dispute (cf. the decision passed by the country B labour court on 21
August 2009). Hence, the Chamber was satisfied that the present matter in front
of it, the main object of which is a claim for breach of contract without just cause
and compensation for breach of contract as well as inducement to breach of
contract, does not constitute a res iudicata.
5.
On account of the above, the Chamber confirmed that it is competent to enter
into the substance of the present matter on the basis of art. 22 lit. a) of the
Regulations on the Status and Transfer of Players (edition 2012).
Club S, from country B / Player F, from country B / Club P, from country G
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6.
Subsequently, 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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2012, 2010 and 2009), and considering that the present claim was lodged
on 30 March 2010, the 2009 edition of said regulations (hereinafter: Regulations)
is applicable to the matter at hand as to the substance.
7.
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 above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
8.
The Chamber noted that the Claimant, on the one hand, alleges that the
Respondent 1 acted in breach of contract by having signed an employment
contract with the Respondent 2 while being contractually bound to the Claimant
on the basis of the Club S contract and that, consequently, the Respondent 1 is
liable for payment of compensation. In addition, the Claimant maintains that the
Respondent 2 is to be held liable for inducement to breach of contract by the
Respondent 1 and consequences deriving thereof.
9.
The Respondent 1, on the other hand, rejects the claim of the Claimant primarily
on the basis of the alleged fact that the Club S contract is null and void or,
alternatively, that he terminated the Club S contract with just cause due to a
breach of good faith committed by the Claimant.
10.
The members of the Chamber further took note of the position of the
Respondent 2, who rejects the Claimant’s allegation that it induced the
Respondent 1 to breach the employment contract with the Claimant, emphasising
that it acted with due diligence and was bona fide. In addition, the Respondent 2
also contests the validity of the Club S contract.
11.
Having said that, the Chamber concluded that the key arguments raised by the
Respondents in the present matter are related to the validity of the Club S
contract, which is indeed contested by both the Respondent 1 and the
Respondent 2.
12.
In this respect, it was noted that the Respondent 1 referred a labour dispute to
the labour court in country B asking that it be established that the Club S contract
is null and void. Furthermore, the Chamber acknowledged that the country B
court rejected the claim of the Respondent 1 and decided that the Club P contract
was valid.
Club S, from country B / Player F, from country B / Club P, from country G
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13.
Therefore, on the basis of the principle of res iudicata, the members of the
Chamber concurred that they could not consider again or enter into an analysis of
the parties’ arguments relating to the validity of the Club S contract, which was
already confirmed by the country B labour court and, thus, was adopted by the
Chamber.
14.
The validity of the Club S contract having been established, the Chamber went on
to analyse as to whether the Club S contract had been terminated by one of the
parties, and, in the affirmative, as to whether such termination was with or
without just cause. The Chamber also underlined that, subsequently, if it were
found that the contract was terminated without just cause, it would be necessary
to determine the consequences deriving of the early termination of the
contractual relation.
15.
From the facts of the case, the members of the Chamber concluded that the
Respondent 1 has obviously failed to render his services to the Claimant under the
Club S contract, by means of which the Claimant and the Respondent 1 had
prolonged their employment relation, and, what is more, the Respondent 1
signed an employment contract with the Respondent 2 on 19 January 2009
covering the period of validity of the Club S contract. By doing so, the Chamber
agreed that the Respondent 1 acted in breach of the Club S contract.
16.
In continuation, the Chamber examined the question as to whether the
Respondent 1 had just cause for said breach of contract. In this respect, the
Chamber recalled that the Respondent 1 deems that he had just cause not to
render his services to the Claimant under the Club S contract, due to the
Claimant’s alleged breach of good faith, which allegedly made it unsustainable
for him to render his services to the Claimant. The Chamber, however, was not at
all convinced by such argument, which, moreover, was not corroborated with
sufficient documentary evidence in accordance with art. 12 par. 3 of the
Procedural Rules, which stipulates that any party claiming a right on the basis of
an alleged fact shall carry the burden of proof.
17.
Consequently, the Chamber concluded that the Respondent 1 had no just cause
for the breach of the Club S contract.
18.
On account of the above, the Chamber decided that the Respondent 1 acted in
breach of contract without just cause by failing to render his services to the
Claimant and signing an employment contract with the Respondent 2 on 19
January 2009 covering the contractual duration of the Club S contract.
19.
Having established the above, the Chamber focussed its attention on the
consequences of the breach of contract by the Respondent 1 without just cause.
Club S, from country B / Player F, from country B / Club P, from country G
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Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Respondent 1 is liable to pay compensation for breach of contract to the
Claimant.
20.
Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of
the Regulations, the Chamber established that the player’s new club, i.e. the
Respondent 2, shall be jointly and severally liable for the payment of
compensation. In this respect, the Chamber was eager to point out that the joint
liability of the player’s new club is independent from the question as to whether
the 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).
Notwithstanding the aforementioned, the Chamber recalled that according to
article 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established
to the contrary, that any club signing a Professional who has terminated his
contract without just cause has induced that Professional to commit a breach. In
any event, the Chamber determined that it would address the question of the
possible inducement to breach of contract by the Respondent 2 at a later stage of
its deliberations, i.e. after having discussed the issue of the compensation due to
the Claimant.
21.
In continuation, the Chamber was eager to point out that the measures provided
for by the Regulations concerning in particular compensation for breach of
contract without just cause serve as a deterrent discouraging the early
termination of employment contracts by either contractual party and that a lack
of a firm response by the competent deciding authorities would represent an
inappropriate example towards all the football actors.
22.
Above all, it was underscored that the criteria contained in art. 17 of the
Regulations are applied with the principle of reciprocity for clubs and players,
signifying that both clubs and professionals who are seen to have committed a
breach of contract without just cause will in all cases be subject to pay
compensation.
23.
Having said that, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the specific case at stake. In
this respect and referring to art. 17 par. 1 of the Regulations, the Chamber firstly
had to clarify as to whether the relevant employment contract at the basis of the
present dispute contains a provision by which the parties had beforehand agreed
upon an amount of compensation in the event of breach of contract.
Club S, from country B / Player F, from country B / Club P, from country G
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24.
In this regard, the Chamber noted that the Club S contract contains a “penalty
clause”, which stipulates inter alia that in the event of breach of contract by the
player for the purpose of an international transfer, the amount of USD 40,000,000
is imposed as a penalty on the player and that this amount shall not have any
restrictions.
25.
The members of the Chamber recalled that the Claimant has based its claim for
compensation primarily on this clause, whereas the Respondents fully rejected the
applicability of said penalty clause.
26.
In this context, the Chamber recalled that the Club S contract, valid as from 1
January 2009 until 31 December 2010, established that the Claimant would pay to
the Respondent 1 a monthly salary amounting to currency of country B 30,000 for
the first year and currency of country B 40,000 for the second year. Consequently,
and considering that the average yearly remuneration due to the player under the
Club S contract amounted to currency of country B 420,000 (approx. USD 179,000)
the Chamber established that the penalty fee amounting to USD 40,000,000
corresponds to approximately 223 years of salary for the player.
27.
As a result, the Chamber unanimously concluded that such an exorbitant amount
provided as penalty fee is excessive and is not acceptable. In this respect, the
Chamber deemed appropriate to recall that also CAS had confirmed the excessive
and abusive nature of such a clause.
28.
Equally important, the Chamber stressed the unilateral character of said penalty
clause, which was formulated to the benefit of the Claimant only. Also for this
reason, the members of the Chamber were of the opinion that this penalty clause
is not acceptable and cannot be applied in the matter at hand.
29.
As a consequence, the members of the Chamber were of the opinion that, under
such circumstances, the deciding body had to assess the relevant amount of
compensation 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 nonexhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, the Chamber
highlighted that other objective criteria may be taken into account at the
discretion of the deciding body and that each request for compensation for
breach of contract has to be assessed on a case-by-case basis taking into account
the particularities of the specific matter.
30.
As regards the calculation of the amount of compensation due by the Respondent
1, the Chamber firstly turned its attention to the remuneration and other benefits
due to the player under the existing contract and/or the new contract, which
Club S, from country B / Player F, from country B / Club P, from country G
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criterion was considered by the Chamber to be essential. The members of the
Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of
the Regulations allows the Chamber to take into account both the existing
contract and the new contract in the calculation of the amount of compensation.
31.
According to the Club S contract, valid as from 1 January 2009 until 31 December
2010, the player’s remuneration during said period of time can be calculated in
the amount of currency of country B 360,000 (approx. EUR 256,000) (12 x currency
of country B 30,000 or approx. EUR 9,132 and 12 x currency of country B 40,000 or
approx. EUR 12,176). On the other hand, in accordance with the new employment
contract concluded between the Respondent 1 and the Respondent 2, the player’s
remuneration was of EUR 415,424 as from January 2009 until 31 December 2010
(including monthly wages, instalments, and monthly rent allowance).
Consequently, the Chamber concluded that the average remuneration of the
Respondent 1 on the basis of both the existing and the new contract can be
calculated in the amount of EUR 335,700, which is the amount reflecting the value
attributed to the player’s services at the moment of breach.
32.
In this context, the members of the Chamber highlighted that said amount
appears to be reflected in the transfer compensation agreed upon between the
Respondent 2 and the country B club, Club F, in July 2010 in connection with the
transfer of the player to the latter club, i.e. EUR 366,000.
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 indications 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 article 17 par. 1 of the
Regulations such fees and expenses may be included as one of the criteria to be
taken into account in the calculation of compensation.
34.
In this connection, the Chamber recalled that according to the Claimant, it had
borne all costs with respect to the player’s training and education since the age of
16 until he turned 21, when he transferred to the Respondent 2. The members of
the Chamber duly noted that the Claimant had lodged a separate claim for
training compensation against the Respondent 2 in front of FIFA, which will thus
be dealt with in separate proceedings and not further considered at this stage.
35.
The Chamber then addressed the Claimant’s request to be awarded, alternatively,
the amount of USD 19,000,000 on the basis of a comparison of the Respondent 1
with the country B player, Player R, who was allegedly transferred to a country D
Club S, from country B / Player F, from country B / Club P, from country G
Page 13 of 16
club for the amount of USD 19,000,000. In this respect, first of all, the Chamber
noted that the Claimant had not presented any documentary evidence
corroborating such allegations related to both the “quality” of the Respondent 1
compared to Player R and to said amount of compensation allegedly paid by the
latter player’s new club for the acquisition of his services. More importantly, the
Chamber deemed that due to the non-objective character of such comparison, this
cannot be considered as a valid criterion to be taken into consideration in the
calculation of the amount of compensation for breach of contract.
36.
Having said that, the members of the Chamber paid due consideration to the
specific circumstance in the case at hand related to the preliminary decision issued
by the country B labour court on 7 January 2009, by means of which a stay of
effects of the Club S contract was pronounced until the final decision on the claim
of the Respondent 1 was issued by said court. The Chamber observed that the
Respondent 1 signed the employment contract with the Respondent 2 subsequent
to having obtained said preliminary court decision on the basis of the proceedings
initiated by him against the Claimant, as a result of which the Respondent 1 might
have believed that he was in the position to sign on with the Respondent 2
without any consequences deriving therefrom. However, at this point, the
Chamber once more wished to highlight that the final decision issued by said
labour court, in fact, rejected the claim of the Respondent 1 and determined that
the Club S contract was valid.
37.
The members of the Chamber, nonetheless, agreed that such specific circumstance
shall be considered a mitigating factor in the determination of the amount of
compensation for breach of contract.
38.
On account of all of the above considerations and the specificities of the matter at
hand, the Chamber established that the amount of compensation for breach of
contract in the case at stake is of EUR 300,000.
39.
Therefore, the Chamber established that the Respondent 1, the player F, is liable
to pay the amount of EUR 300,000 to the Claimant, Club S, as compensation for
breach of contract without just cause. Furthermore, the club, Club P, is jointly and
severally liable for the payment of the relevant compensation in accordance with
art. 17 par. 2 of the Regulations.
40.
Finally, the members of the Chamber turned their attention to the question as to
whether, in view of article 17 par. 4 of the Regulations, the player’s new club, the
Respondent 2, must be considered to have induced the player to breach his
contract with the Claimant without just cause as claimed by the Claimant.
Club S, from country B / Player F, from country B / Club P, from country G
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43.
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. Consequently, the
Chamber pointed out that the party that is presumed to have induced the player
to commit a breach carries the burden of proof to demonstrate the contrary
(reversal of the burden of proof). In this respect, the Chamber found that the
exchange of correspondence between the Claimant and the Respondent 2 prior to
the signature of the employment contract by and between the Respondents
demonstrates that the Respondent 2 had not induced the Respondent 1 to breach
the Club S contract. What is more, the Chamber deemed that the Respondent 2
had acted in good faith on the basis of the information and documentation at its
disposal at the time of the signature of the employment contract with the
Respondent 1, which includes the preliminary decision passed by the country B
labour court and country B Football Federation’s confirmation that the player was
out of contract on the basis of a judicial decision.
44.
The Chamber concluded its deliberations in the present matter 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 F, has to pay compensation for breach of contract in the
amount of EUR 300,000 to the Claimant within 30 days as from the date of
notification of this decision.
3.
If this amount is not paid within the aforementioned time limit, interest at the rate
of 5% per annum will fall due as of the expiry of said time limit and the matter will
be submitted, upon request, to the FIFA Disciplinary Committee for its
consideration and decision.
4.
The Respondent 2, Club P, is jointly and severally liable for the aforementioned
payment.
5.
Any further request filed by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent 1 and the Respondent 2
directly and immediately of the account number to which the remittance is to be
made and to notify the Dispute Resolution Chamber of every payment received.
Club S, from country B / Player F, from country B / Club P, from country G
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*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives). The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Club S, from country B / Player F, from country B / Club P, from country G
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