Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Taku Nomiya (Japan), member
Theo van Seggelen (Netherlands), member
on the claim presented by the club,
Club S, from country B
as Claimant
against the player,
Player T, from country B
as Respondent 1
and the club,
Club U, from country I
as Respondent 2
regarding an employment-related dispute
arisen between the Claimant and the Respondent 1
I.
Facts of the case
1.
On 28 July 2006, the club from country B, Club S (hereinafter: Club S or
Claimant) and the player from country B, Player T (hereinafter: player or
Respondent 1), born on 2 March 1989, signed an employment contract valid as
from the signature date until 27 July 2008.
1.
Art. 17 of the contract stipulates that the player would receive a monthly salary
in the amount of 2,400.
2.
By means of an additional agreement (hereinafter: agreement) signed on the
same date, the player and the club inter alia agreed (art. 6 par. 2) that “In the
event of a unilateral breach or termination on the part of the [player] in order
to transfer to another club overseas, or a contractual breach, a penalty fine is
hereby established to be paid by the [player] to the club (…) in the amount of
EUR 5,000,000”.
3.
Art. 6 par. 3 of the agreement sets forth that “In the event the association
without cause, terminates this contract, it shall pay the [player] the amount
corresponding to 50% (fifty percent) of the period short of completing the term
stipulated in executed contract (…)”.
4.
Art. 6 par. 5 stipulates that the player’s salary for the second contractual year
would amount to 2,500 (…) and that he shall receive a monthly allowance of
1,000 (…) relating to “costs of living”.
5.
On 17 September 2007, the club from country I, Club T, and the player signed an
employment contract that would enter into force upon receipt of the player’s
International Transfer Certificate (ITC), be it during the sporting season 2007/08
or during the sporting season 2008/09, and valid until the end of the sporting
season 2012/13 (hereinafter: the Club T contract). In its preamble, said contract
reads that “Club T, having been informed by [the player] that the same will be
free of ties by March 31, 2008, wishes and agrees to purchase, and [the player]
agrees to sell, [the player’s] playing rights under the conditions below.”
6.
The Club T contract further mentions that the “effectiveness of this agreement
is contingent on the issuance of an international transfer certificate by the
Federation of country B.”
7.
In art. 2 par. 2 lit. a) to e) of the Club T contract, it is stipulated that “CLUB T
shall have PLAYER sign, and PLAYER shall sign, a multi-annual economic
agreement” setting forth specified payment terms as from the 2008/09 season
until and including the 2012/13 season. Art. 2 par. 3 sets forth that the
provisions pertaining to the above-described par. 2 “shall be attested in a
Club S, from country B / Player T, from country B /
Club U, from country I
Page 2 of 12
federal form” as soon as the player is in a position to sign an economic
agreement with Club T.
8.
According to the Claimant, no ITC was ever issued by the Football Federation
from country B on behalf of the Football Federation from country I in
connection with the Club T contract.
9.
According to a correspondence dated 4 November 2010 issued by the Football
Federation from country I, the Respondent 1’s first registration in country I,
which took place on 28 July 2009, was a registration in favour of the club from
country I, Club U (hereinafter: Club U or Respondent 2) following the issuance
on 27 July 2009 of an ITC by the Football Federation from country B to the
Football Federation from country I.
10. According to the player, on 20 February 2009, he signed an employment
contract with Club U entering into force on 20 February 2009 and coming to an
end on 30 June 2013. According to art. 2 a) of the aforementioned contract, the
player was to receive the following net amounts per season:
2008/2009
EUR 50,000
2009/2010
EUR 100,000
2010/2011
EUR 100,000
2011/2012
EUR 100,000
2012/2013
EUR 100,000
11. However, and according to a document submitted by Club U, on 13 May 2009,
Club U and the player signed an employment contract entering into force on 1
July 2009 and coming to an end on 30 June 2014. According to art. 2 a) of the
aforementioned contract, the player was to receive the following net amounts
per season:
2009/2010
EUR 100,000
2010/2011
EUR 100,000
2011/2012
EUR 100,000
2012/2013
EUR 100,000
2013/2014
EUR 100,000
Club S’ initial claim against the player and Club T
12. According to Club S, on 24 September 2007, i.e. one week after having signed
the Club T contract, and allegedly under Club T’s influence, the player lodged a
claim against Club S before a labour court in country B, requesting the
termination of the contract signed with Club S due to the latter’s alleged breach
of its contractual obligations. In this respect, Club S pointed out that the player
attached a copy of the contract he signed with Club T in support of his claim
against Club S in front of the labour court in country B.
13. On the other hand, Club S lodged a counterclaim in front of said labour court in
country B against the player arguing that the latter is acting out of bad faith
and, inter alia, requested the payment of moral damages.
Club S, from country B / Player T, from country B /
Club U, from country I
Page 3 of 12
14. On 21 November 2007, the judge of the labour court in country B rejected both
the player’s request and Club S’ counterclaim.
15. In support of its claim against the player in front of FIFA, Club S pointed out
that the player did not terminate the employment contract he had signed with
Club S before signing the Club T contract. In the club’s opinion, the player
therefore had two contracts ongoing at the same time with two different clubs,
which is a violation of the contract signed with Club S as well as a breach of the
FIFA Regulations.
Club S’ claim against the player and Club U
16. After FIFA had previously invited the player and Club T to present their
respective positions with regard to the claims for breach of contract and
inducement to breach of contract, respectively, lodged against them by Club S
on 21 December 2007, Club S amended its position and decided to withdraw its
claim against Club T while maintaining its claim against the player.
17. In this respect, Club S explained that prima facie, it believed that Club T had
induced the player to breach his contract signed with Club S. However, and
based on the letters it respectively received from Club T and the Football
Federation from country I, it appeared that the player was never registered with
Club T but was firstly registered in country I with Club U. In this respect, the
Football Federation from country I enclosed a copy of an ITC dated 27 July 2009
and showing that the Football Federation from country B issued an ITC to the
Football Federation from country I in view of the player’s registration with its
affiliated club Club U.
18. Therefore, on 26 November 2010, Club S lodged a claim in front of FIFA against
the player and Club U for breach of contract without just cause and inducement
of breach of contract, respectively.
19. In this respect, Club S asked that the player be sentenced to pay compensation
for breach of contract in the amount of EUR 5,000,000, i.e. the contractual
amount applicable in case the player was internationally transferred, plus 5%
interest to be applied on the amount due as compensation to Club S, calculated
as from the date the Dispute Resolution Chamber will find suitable. Club S also
claimed that sporting sanctions be imposed upon the player.
20. Additionally, Club S requested that Club U be held jointly liable for the payment
of the compensation imposed upon the player in accordance with art. 17 par. 2
of the FIFA Regulations. Club S also claimed the imposition of a ban from
registering any players either nationally or internationally for two registration
periods on Club U.
Club S, from country B / Player T, from country B /
Club U, from country I
Page 4 of 12
21. Club S stressed that in addition to the above-described events, Club U never
informed Club S of its intention to hire the player and clearly induced the player
to breach his contract with Club S.
22. Club S referred to art. 18 par. 3 of the Regulations and held that Club U shall be
sanctioned for having breached its duty of due diligence as it never informed
Club S of its intention to hire the player.
23. In this respect, Club S stressed that based on some media articles, it is clear that
the player started to be linked to Club U since the summer 2008 and that,
allegedly, Club U only waited for the player to receive an passport from country
I before signing a contract with him and have him registered at the Football
Federation from country I.
Player’s answer to Club S’ claim
24. In his answer to Club S’ claim, the player explained that based on the fact that
Club S had not complied with its financial obligations in a timely manner, he
decided to lodge a claim against Club S before a labour court in country B on 24
September 2007 seeking, inter alia, to be granted compensation for breach of
contract and to be released from said contract. The player maintained that Club
T had in no way influenced him to lodge said claim.
25. In addition, the player stressed that Club S lodged a counterclaim against him in
country B and, based on the allegation that the player’s claim against the club
was unjustified and abusive, Club S claimed the payment stipulated in art. 6 par.
1 of the Club S contract.
26. On 21 November 2007, the relevant judge dismissed the player’s claim and the
club’s counterclaim, leading to the fact that the player continued rendering his
services to Club S up and until the end of the duration of their contract.
27. Also, and allegedly comforted by the player’s opinion that he had just cause to
terminate the Club S contract under the law in country B and in accordance with
FIFA’s jurisprudence, Club T and the player concluded an employment contract
in September 2007. This employment contract, signed in good faith, was only to
start as of 31 March 2008 so as to give enough time to the labour court in
country B to confirm the termination of the contract signed with Club S.
28. In view of the above, the player deemed that Club S’ claim is inadmissible as the
matter opposing him to Club S is a res iudicata.
29. The player also stressed that Club S accepted the jurisdiction of the labour court
in country B and even lodged a counterclaim against the player in front of said
court.
Club S, from country B / Player T, from country B /
Club U, from country I
Page 5 of 12
30. As a result, the player held that the FIFA DRC is not competent to deal with Club
S’ claim. Should the DRC not consider this matter to be a res iudicata, the player
presented the following arguments in relation to the Club S contract.
31. In this respect, the player firstly explained that even after the court in country B
issued its ruling, the player kept rendering his services to the club. As an
illustration of that fact, the player submitted a copy of an article dated 29
February 2008 related to his participation as a player of Club S in a regional
tournament for youth teams.
32. In the player’s opinion, Club S is malicious to lodge a claim before FIFA against
one of its own players who, additionally, was still rendering his services to the
club at that time. In this respect, the player asserted that a breach of contract
triggering the payment of compensation implies that the contractual
relationship between the parties has come to an end or should have come to an
end as of the date of the alleged breach of contract, in other words, that the
player is no longer playing for the club’s team.
33. To conclude in this regard, the player stressed that no breach of contract
actually occurred since the employment relationship had continued.
34. In continuation, the player addressed the question of the amount of
compensation claimed by Club S. In this respect, the player held that in
“Matuzalem” and “El-Hadary” cases, the Court of Arbitration for Sport (CAS)
adopted an approach aiming at putting the victim of the breach in the position
it would have been should the contract have been performed without any
breach.
35. However, in the matter at hand, Club S did not lose the benefit of the player
and therefore has no reason to be granted any compensation. The contract was
performed as if no breach had ever happened. In the player’s opinion, a
different outcome would result in an unjustified enrichment for Club S, which is
contrary to art. 62 of the Swiss Code of Obligations.
36. Additionally, the player specified that Club S, having forfeited its right to
receive a financial compensation, also forfeited its right to request sporting
sanctions to be imposed upon the player.
37. In the player’s opinion, Club S’ claim is only a “desperate” attempt to collect
money in relation to a player who had decided to stop playing for the club after
the expiry of his contract in July 2008. In other words, after Club S understood
that its chances to successfully negotiate another contract with the player were
overcome by the offer made by Club T and that the player had decided to leave
the club, it decided to lodge a claim against the player before FIFA.
Club S, from country B / Player T, from country B /
Club U, from country I
Page 6 of 12
38. As to the amount of compensation sought by Club S, the player asserted that
the amount stipulated in art. 6 par. 2 of the contract is totally disproportionate
since, bearing in mind the amount of the player’s remuneration, i.e. EUR 864
per month, the latter would have had to work 440 years to be able to pay to the
club the amount stipulated in the clause in question.
39. What is more, the player, referred to CAS jurisprudence and to art. 163 of the
Swiss Code of Obligations and pointed out that said article provides that
“excessively high liquidated damages shall be reduced at the discretion of the
judge.”
40. The amount stipulated in said contractual clause being inapplicable, the player
referred to the question of the prejudice suffered by Club S to justify its claim
for compensation.
41. In this regard, the player highlighted that bearing in mind that art. 42 of the
aforementioned Swiss Code provides that “whoever claims damages must prove
the damages”, and taking into account CAS’ approach in relation to the full
reparation of one’s prejudice, Club S is not in a position to be awarded any
compensation as it has not been able to put forward any damages since the
player executed the contract until its end.
42. In view of all of the above, the player concluded should the DRC consider that a
breach of contract of contract occurred and has not been covered by the
execution of the contract by both parties, the amount stipulated in art. 6 par. 2
of the contract is to be set aside as it is disproportionate and the player shall not
be sentenced to pay any compensation to Club S as said club did not suffer any
prejudice arising from the above-described situation.
Club U’s answer to Club S’ claim
43. In its reply to the claim, Club U pointed out that in its opinion, Club S’ claim is
inadmissible as a result of it being a res iudicata. In this respect, it explained that
the player already submitted an employment-related dispute opposing him to
Club S to a labour court in country B, which, afterwards, rendered a decision in
relation to the player’s claim and Club S’ counterclaim. As a result, Club U
considers that FIFA’s decision-making bodies are not in a position to decide on
the substance of Club S’ claim against the player.
44. In addition to the aforementioned, Club U also held that “considering the litis
pendens before the court of Club S much before the case was submitted to FIFA,
the latter is not able to hear the case.”
Club S, from country B / Player T, from country B /
Club U, from country I
Page 7 of 12
45. In continuation, Club U pointed out that based on art. 25 of the FIFA
Regulations, Club S’ claim against Club U is time-barred. In this respect, Club U
recalled that Club S lodged its claim against Club U before FIFA on 26 November
2010 whereas the player had lodged his claim against Club S before the local
labour court in country B on 24 September 2007. In particular, Club U stressed
that Club S knew that the player had signed a contract with Club T and decided
to move to country I as from 24 September 2007.
46. Furthermore, Club U held that it has no standing to be sued since (i) it never
induced the player to breach his contract with Club S and (ii) that the contract
signed between Club U and the player was signed about a year after the Club S
contract had expired.
47. In this respect, Club U stressed that it has respected the principle of due
diligence and asked the Football Federation from country B information in
relation to the player’s contractual situation before approaching the player. In
this respect, Club U submitted copies of two faxes issued by the Football
Federation from country B and confirming the date of the end of the contract
between the player with Club S, i.e. 27 July 2008. On the basis of the
aforementioned, Club U claims that (a) it never contacted the player whilst the
latter was registered with Club S, (b) it never induced the player to terminate
the contract with Club S or to bring a legal action against Club S in country B.
48. In this respect, Club U rejected Club S’ assertions in relation to the actual
beginning of the relation between the player and Club U. In particular, it held
that Club S’ statement that their relation would have started in 2008 is
groundless and unproven, only consisting of Club S’ own beliefs, possibly having
been instigated by Club T.
49. In continuation, Club U highlighted that the club with which the player signed a
contract whilst his contract with Club S was still valid is Club T, not Club U. In
this regard, Club U referred to Club S’ statement of claim and stressed that in
said document, Club S explained that the player lodged a claim against Club S in
country B ”induced by Mr X, a former managing director of Club T”.
50. What is more, Club U stressed that the absence of registration of the contract
signed between the player and Club T does not impact its validity. In Club U’s
opinion, it is Club T that has to be seen as the “club” in the sense of art. 17 par.
4 of the FIFA Regulations.
51. Finally, Club U challenged the amount claimed by Club S for compensation for
breach contract. In this respect, it held that as Club S trained the player, it never
had to pay a transfer fee to recruit him. Also, Club U pointed out that Club S
only fielded the player once during the remainder of the sporting season.
Club S, from country B / Player T, from country B /
Club U, from country I
Page 8 of 12
52. In continuation, considering the remuneration the player was receiving with
Club S, i.e. about EUR 750 per month, or considering the entire value of said
employment contract, i.e. about EUR 18,216, Club U holds that the claim of EUR
5,000,000 is disproportionate and disconnected from the player’s market value.
In Club U’s opinion, the amount stipulated in the clause therefore appears to be
a way for Club S to enrich itself without justification and the compensation for
breach of contract granted to Club S, if any, has to be diminished to zero,
notably based on art. 163.3 of the Swiss Code of Obligations.
53. Finally, Club U stressed that it neither caused any prejudice to Club S nor did it
benefit from the player’s services as the player, who never played for Club U
during the season, was subsequently loaned for free to another club from
country I.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 21 November 2007. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2005;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 1 and 2 of the 2014 edition of the Procedural Rules in combination with art.
18 par. 1 and 2 of the 2008 and 2005 edition 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
Regulations on the Status and Transfer of Players (edition 2014, hereinafter: the
Regulations), it firstly had to analyse under the lights of art. 22 lit. a) and lit. b)
of said Regulations as to whether it was competent to deal with the matter at
hand, which primarily concerns an employment-related dispute opposing a club
from country B to a player from country B.
3.
In this context, the DRC first reverted to art. 22 lit. b) of the Regulations and
duly noted that according to said article, the DRC is competent to hear disputes
between a club and a player of an international dimension, unless an
independent arbitration tribunal guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs has been established
at national level within the framework of the association and/or a collective
bargaining agreement.
4.
Bearing these considerations in mind, the DRC duly noted that the Claimant is a
football club affiliated to the Football Federation from country B and that, on
Club S, from country B / Player T, from country B /
Club U, from country I
Page 9 of 12
the other hand, the Respondent 1 is a football player holding the nationality
from country B.
5.
In view of the above, the Chamber came to the conclusion that it is not
competent to deal with the matter at hand on the basis of art. 22 lit. b) of the
Regulations as the matter opposing the Claimant and the Respondent 1 is
deprived of the mandatory international dimension required under the abovereferred provision.
6.
In continuation, the DRC turned its attention to art. 22 lit. a) of the Regulations
and noted that according to said article, the Dispute Resolution Chamber is
competent to hear disputes between clubs and players in relation to the
maintenance of contractual stability where there has been an ITC request and a
claim from an interested party in relation to said ITC request, in particular
regarding the issue of the ITC, sporting sanctions or compensation for breach of
contract.
7.
Against such a background, the Chamber was eager to note that on 5
November 2010, the Claimant decided to withdraw its claim against Club T and
that on 26 November 2010, besides maintaining, mutatis mutandis, its initial
claim against the Respondent 1, the Claimant amended its claim and involved
the club from country I, Club U, instead of Club T in the proceedings at hand.
8.
However, the Chamber found that on the basis of the documentation available
on file, no ITC had ever been requested by the Football Federation from country
I, left alone issued by the Football Federation from country B, in relation to the
Club T contract. It follows from the aforementioned that the Claimant’s claim,
regardless of its posterior withdrawal, could not possibly be lodged in relation
to an ITC request involving the Football Federation from country B and the
Football Federation from country I in relation to the Respondent 1 and Club T.
9.
Additionally, the Chamber found that the Respondent 1’s signature of the
contract and subsequent registration with the Respondent 2, which was
accompanied by the issuance of an ITC dated 27 July 2009 sent by Football
Federation from country B to the Football Federation from country I, took place
after complete execution of the employment contract signed by and between
the Claimant and the Respondent 1. In this respect, the Chamber also wished to
point out that the Claimant’s amended statement of claim was not related to
said ITC request.
10. In view of the aforementioned, the Chamber found that as the Claimant’s claim
against the Respondent 1 was not consisting of a claim of an interested party in
relation to an ICT request, the DRC could also not consider itself competent to
deal with the Claimant’s claim at hand on the basis of art. 22 lit. a) of the
Regulations.
Club S, from country B / Player T, from country B /
Club U, from country I
Page 10 of 12
11. In the absence of any legal basis justifying its competence, the Dispute
Resolution Chamber considered itself not competent to deal with the matter at
hand and consequently held that the Claimant’s claim was not admissible.
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Club S, is not admissible.
*****
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
Club S, from country B / Player T, from country B /
Club U, from country I
Page 11 of 12
Encl. CAS directives
Club S, from country B / Player T, from country B /
Club U, from country I
Page 12 of 12