Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
Passed on 13 August 2020,
regarding an employment-related dispute concerning the player A
COMPOSITION:
Geoff Thompson (England), Chairman
Alexandra Gómez Bruinewoud (Uruguay/the Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Club B, Country B
Represented by
RESPONDENT 1:
Player A, Country B
Represented by
RESPONDENT 2:
Club C, Country C
Represented by
RESPONDENT 3:
Club D, Country B
Represented by
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I.
FACTS OF THE CASE
1.
On 26 July 2015, the Country B club, B (hereinafter: the Claimant or B) and the Country B
player, A (hereinafter: the Respondent 1 or the player) concluded an employment contract
valid for four seasons, i.e. as from the season 2015/2016 until the end of the season
2018/2019 (hereinafter: the first contract).
2.
According to the information available in the Transfer Matching System (TMS), the season
in Country B runs from November to June of the following year.
3.
According to the first contract, the Claimant undertook to pay the player, inter alia, the
following remuneration:
a.
b.
c.
d.
Season 2015/2016: Country B Currency: 3,000,000;
Season 2016/2017: Country B Currency 3,133,000;
Season 2017/2018: Country B Currency 3,133,700;
Season 2018/2019: Country B Currency 3,266,000.
4.
According to the information provided by the Country B Football Association (hereinafter:
Country B FA) at the request of FIFA, the first contract was “issued” on 26 July 2015 and
registered with the Country B FA on 5 August 2015.
5.
On 17 July 2016, the player, the Claimant and the Country E club, club E (hereinafter: E),
signed a loan transfer agreement according to which the services of the player were
temporary transferred from the Claimant to E for a period of one season (i.e. until 31 May
2017) against the payment of a transfer fee of USD 1,200,000.
6.
According to the information available in TMS, the season in Country E runs from August
to May the following year.
7.
On 28 June 2017, the player, the Claimant, and E signed a second loan transfer agreement
according to which the services of the player were temporary transferred from the Claimant
to E for an additional period of one season (i.e. until 31 May 2018) against the payment of
a transfer fee of USD 2,300,000.
8.
Allegedly on 28 August 2017, however disputed between the parties, the Claimant and
Respondent 1 concluded a new employment contract valid for five seasons, i.e. as from the
season 2017/2018 until the end of the season 2021/2022 (hereinafter: the second
contract).
9.
The second contract reads: “On this Monday, 28 August 2017 (…)”. Additionally, according
to the second contract, the Claimant undertook to pay the player inter alia the yearly
remuneration of Country B Currency 3,200,000.
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10.
According to the information provided by Country B FA as requested by FIFA, the first
contract “had been renewed with a new one on 28 July 2017 registered on 7 September
2017”.
11.
On 20 June 2019 and 9 January 2019, the player sent B two notices, according to which,
inter alia, he stated as follows:
a. He had agreed to a one season only contractual extension, i.e. until the end of the
season 2019-2020, and a salary of Country B Currency 8,000,000;
b. Due to the alleged pressure exercised by B, the player admitted to have signed a blank
contract allegedly dated 16 July 2016, trusting the Claimant would honor the alleged
correct negotiated terms;
c. The Claimant registered such contract with the Country B FA more than 24 months
after its alleged execution;
d. As such, the player rendered that the second contract/extension was null and void,
therefore his contractual relationship with the club would last until 30 June 2019.
12.
B did not reply to the aforementioned notices.
13.
On 20 July 2019, the player and Club C (hereinafter: C or the Respondent 2) signed an
employment agreement valid from the same date until 31 June 2021 (hereinafter: the C
Agreement).
14.
According to the C Agreement, the player was entiled to a remuneration of EUR 120,000
per season. Such amount equals approximately Country B Currency 2,237,070 as converted
on the date of its execution.
15.
Furthermore, clause 11 of the C Agreement read as follows:
“ELEVENTH (Unilateral Termination Right)
1. After obtaining the ITC, either C or the Player shall be allowed to unilaterally terminate
this Sports' Employment Contract at any time, without the obligation to pay compensation
to the other party.
2. Should the Player wish to exercise to his right to unilaterally terminate this contract, he
must formally notify C of such intention with at least 5-days in advance, by means of email
addressed to XXXX.
3. Should C wish to exercise to his right to unilaterally terminate this contract, he must
formally notify Player of such intention with at least 5-days in advance, by means of email
addressed to XXXX and XXXX
4. If the Player exercises his right to unilaterally terminate this contract as per paragraph 2.
above, C undertakes not to omit, delay or in any way impede all the required actions
necessary for the successful completion of his transfer to any future club, including the
issuance of the Player's ITC or the issuance of the required TPO declaration”.
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16.
On 30 July 2019, the Claimant sent a letter to the player requesting him to “immediately
come back to the club’s premises and fulfil your contractual obligations”.
17.
On 1 August 2019, the Country C FA (hereinafter: Country C FA) requested the electronic
International Transfer Certificate (ITC) through TMS for the player. The Country B FA
objected to such request.
18.
On 20 August 2019, the Single Judge of the Players’ Status Committee authorised the
provisional registration of the player in Country C. Item II.7 of the decision by the Single
Judge of the Players’ Status Committee reads as follows:
“Finally, the Single Judge emphasised that the present decision related to the authorisation
to provisionally register the player for [C] is a provisional measure and, as such, without
prejudice to any decision as to a potential contractual dispute between the [Claimant] and
the player (as well as the new club). In particular, it would be up to the competent deciding
body to express itself on the questions if the contract has been terminated by one of the
contractual parties, whether with or without just cause, and who is to be deemed
responsible for such possible breach. Equally, the competent body would have to determine
the possible consequences thereof, i.e. financial compensation and/or sporting sanctions”.
19.
According to the information provided by the Country C FA, the player played in five official
matches for the Respondent 2, four as a substitute and one in the starting lineup.
20.
On 27 November 2019, the player sent a notice to C, by means of which he terminated the
C Agreement unilaterally on the grounds its clause 11.
21.
On 28 November 2019, the Claimant sent a notice to the player and C and inter alia
requested payment of EUR 9,000,000 as compensation for breach of contract.
22.
On 5 December 2019, the player and C executed a termination agreement, according to
which the player had unilaterally terminated the C Agreement pursuant to its clause 11. As
such, the player and C settled their financial dues.
23.
On 14 Decemeber 2019, the Claimant sent a second notice to the player and C, and
reiterated the contents of its letter dated 28 November 2019. The Claimant further stated
it would start proceedings before FIFA.
24.
On 1 January 2020, the player and the Country B club, D (hereinafter: the Respondent 3 or
D) executed an employment agreement (hereinafter: the D Agreement), valid from 1
January 2020 until 30 June 2024. According to the D Agreement, the player is entitled to
the following remuneration:
a.
b.
c.
From 1 January 20 to 30 June 20: Country B Currency 5,805,000;
Season 2020/2021: Country B Currency 11,610,000;
Season 2021/2022: Country B Currency 12,255,000;
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d.
e.
Season 2022/2023: Country B Currency 12,900,000.
Season 2023/2024: Country B Currency 13,545,000.
II.
PROCEEDINGS BEFORE FIFA
25.
On 6 January 2020, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of B
26.
According to the Claimant, in July 2019 it read in a newspaper that the player had signed
an employment contract in Country C with the Respondent 2. The Claimant holds that it
never received a termination letter. To this extent, the Claimant argued that the Respondent
1 breached the second contract without just cause by signing a contract with the
Respondent 2.
27.
The Claimant further explained that the second contract was properly registered with the
Country B FA, as such registration took place within 30 days of its execution. In this regard,
the Claimant submitted two pieces of evidence, namely (a) a declaration issued by the
Country B FA, and (b) an interview given by the Country B FA’s director of Players Affairs,
Mr xxx. The Claimant also filed payment receipts in favour of the Country B FA regarding
the alleged payment of fees in connection with the registration of the second contract.
28.
Additionally, the Claimant filed an interview by the player to the media in Country B. The
Claimant argued that in such interview the player admitted that he had “extended” his
contract with B “for additional 4 years”.
29.
The Claimant also submitted that there was no violation of art. 18 par. 2 of the FIFA
Regulations on the Status and Transfer of Players, on the grounds that the second contract
outlines new terms and conditions, and neither the first nor the second contract surpass
the limit of 5 years.
30.
In continuation, the Claimant held that C and D shall be considered jointly liable for the
payment of compensation for breach of contract. In particular, the Claimant is of the
position that a bridge transfer took place. In support of these allegations, the Claimant filed
two interviews given by the player to media vehicles in 2018 and 2019. The Claimant
maintained that in such interviews the player admitted to have been involved with D.
31.
Accordingly, the Claimant requested payment of compensation for breach of contract
taking into account the following criteria:
a. USD 1,000,000 corresponding to Country B Currency XXX, as total value of the second
contract;
b. USD 1,710,000 corresponding to the “market value” based on “transfermarkt.com” as
lost transfer fee, as well as given the offers it received for the services of the player;
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c. USD 1,500,000 corresponding to replacement costs.
32.
Lastly, the Claimant held that the specificity of sports needs to be taken into account, and
stated the following: “These elements, in particular the bad faith attitude of the
Respondents in this matter, must be assessed by FIFA DRC at its discretion in the calculation
of the compensation that, in any case, having regard to the ordinary course of the events,
must not be less than 9,000,000 EUR”.
33.
The requests for relief of the Claimant, as amended, were the following:
“a) to declare that the Player has, de facto, unlawfully terminated on 20 June 2019 the
employment relationship with the Claimant without just cause, by leaving B, not attending
the remaining trainings and matches of the sporting season 2018/2019 and then signing
an employment contract on 20 July 2019 with C (still during the length of the Country B
football season 2018/2019) and finally on 13 December 2019 with D (during the length of
the Second Employment Contract valid until 30 June 2022);
b) as a consequence of the above, order the Player A, C and D – by declaring its relevant
standing to be sued –, jointly and severally, liable to pay B a compensation equals to the
amount of 9,000,000 USD or in the different amount FIFA Dispute Resolution Chamber will
consider proportionate and appropriate in the decision of the case at stake, in accordance
with the provision of article 17 of the FIFA RSPT, taking into account the specific
circumstances of the case, as well as the replacement costs suffered by the Claimant and
the loss of profit;
c) to additionally order the A, C and D, jointly and severally, liable to pay an interest of 5%
on the amount due to the Claimant, calculated from 20 June 2019 – date when the Player
did not return to the Club after his holiday -, or from the different date FIFA Dispute
Resolution Chamber deems appropriate, until the date of effective payment;
d) to apply sporting sanctions in accordance with the FIFA RSTP and Disciplinary Code,
suggested as follows: (i) A with a ban on playing in official matches for six (6) months,
pursuant to article 17, paragraph 3, of FIFA RSTP; (ii) C and D with a ban on registering any
players both at national and international level for two (2) consecutive registration periods,
pursuant to article 17, paragraph 4, of FIFA RSTP;
e) to reject all the motions and requests put forward by the Respondents;
f) to apply any other measure, oven of disciplinary nature, it considers necessary in the
decision of the case at stake”.
b.
34.
Position of the player
The player, for his part, deemed that the second contract was in fact executed on 14 July
2016, and not on 28 August 2017.
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35.
In this respect, while admitting he had signed a blank document, allegedly due to the
pressure exercised on him by Claimant in the context of his loan to E, the player argued
that the Claimant later filled out the second contract with stipulations different than those
he had primarily agreed to, namely: a one-year contractual extension and a salary raise,
instead of an extension until 2022 and the same remuneration.
36.
In this regard, the Respondent 1 deemed he was left at the mercy of B, in a situation more
“that of a slave than a worker”. In support of his position, the Respondent 1 filed the
following evidence:
a. B’s website articles of 14 July 2016, which the player argued was a confirmation that
he had extended his contract for 1 season;
b. A witness statement by a Mr XX, whom in the capacity of the player’s friend was
allegedly present when the contract extension was signed.
37.
The Respondent 1 further deemed that the second contract was not properly registered
with the Country B FA, in contravention of clause 9 (5) of the Country B FA Regulations,
i.e. which states that a contract shall be registered within 30 days of its execution. In support
of this allegation, the player filed the following evidence:
a. B’s website article of 18 November 2018 confirming that the second contract was
registered on such date, as confirmed by a notary;
b. Extracts from the Country B FA’s registration system (DTMS), which showed that: (a)
the second contract was registered as an “extension”, and (b) that it was registered on
17 November 2018.
38.
The Respondent 1 further submitted he had inquired the Country B FA on his registration
status, having received a certificate from the Country B FA on 24 July 2017, stating that
only his first contract was the one in the records. As a consequence of the Claimant’s late
registration of the second contract, the Respondent 1 held that such contract should be
declared null and void.
39.
Additionally, the player submitted that the two contracts he executed with the Claimant
correspond to a period of 7 years, which contravenes art. 18 par. 2 of the FIFA Regulations
on the Status and Transfer of Players, therefore arguing that the two last years of the
contractual relationship should not be taken into account. The Respondent 1 reverts to the
Country B FA DTMS to allegedly prove that the second contract was in fact a contractual
extension.
40.
The Respondent 1 requested that the claim be dismissed.
c.
Position of C
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41.
The Respondent 2 rejected the Claimant’s claim and submitted that, on the balance of
probabilities, the second contract cannot be taken into account. In this sense, C filed two
different versions of both the first and the second contracts, drawing attention to the
placement of stamps, fingerprints and signatures. The Respondent 2 further confirmed that
the Player had signed a blank document, which it claimed was allegedly later filled out by
the Claimant.
42.
The Respondent 2 contended that the second contract was properly registered with the
Country B FA. If so, it holds that the second contract was registered as an amendment and
not a new contract, exceeding the maximum of 5 years allowed under the FIFA Regulations
on the Status and Transfer of Players.
43.
Given the above and the alleged misrepresentation in the second contract execution and
registration, the Respondent 2 held that both should be considered null and void. To this
extent, it explained that the player granted the Claimant a de facto unilateral option to
extend the first contract, “on the basis that the covenant was finalized on 16 July 2016,
was allegedly signed on 28 August 2017 and was only registered on 5 July 2018, according
to the Claimant’s own volition and self-interest, without any regard whatsoever for the
Player’s position and interest”.
44.
The Respondent 2 also submitted it should not be held jointly liable as it did not induce the
player to breach the contract.
45.
The Respondent 2 finalized its submissions requesting the claim to be rejected, or in the
alternative, that compensation to be substantially reduced.
d.
Position of D
46.
The Respondent 3 submitted it has no standing to be sued. In this sense, it argued that the
Claimant did not make any specific requests for relief against it, therefore violating the
requirement of certainty and the principle of non ultra petita, as well as its right to be heard.
47.
As to the merits, the Respondent 3 objected to the Claimant’s assertion that the player’s
transfer from C to the Respondent 3 constituted a bridge transfer. The Respondent 3 stated
that (a) the player’s hiring by C had sporting merit, as he played for such club for half a
season; (b) there is not a “triangular structure” on the transfer, as the player was engaged
as a free agent after he had terminated the contract with C as per a buy-out clause.
48.
Further, the Respondent 3 held that it had not had any previous contact with the player, as
allegedly demonstrated by an interview given by the Mr. XXX Marketing and Football
Contracts Director.
49.
The Respondent 3 requested that the claim be dismissed.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
50.
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 presented to FIFA on 6 January 2020 and submitted
for decision on 13 August 2020. Taking into account the wording of art. 21 of the June
2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
51.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition August 2020), the
Dispute Resolution Chamber is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Country B player, a Country C club, and two Country B clubs.
52.
However, the Chamber took note of the fact that the Respondent 3 deemed that it does
not have standing to be sued.
53.
In this respect, the Chamber firstly outlined that the issue of standing regards the merits of
the case and, secondly, that it remained undisputed that the claim has an international
dimension. Accordingly, and in compliance with its own well-established jurisprudence, the
members of the Chamber agreed that the DRC is competent to entertain the claim, which
consequently is to be deemed admissible.
54.
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 2 of the Regulations on the Status and Transfer of Player (edition August 2020), and
considering that the present claim was lodged on 6 January 2020, the January 2020 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
55.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
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56.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
57.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
it will refer only to the facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand.
i. Standing to be sued of D
58.
The Chamber observed – first and foremost – that, according to D, it lacked standing to be
sued vis-à-vis the claim.
59.
In respect of the above, the members of the DRC deemed it worth to preliminarily remark,
on general level, that standing to be sued is attributed to a party in which one could validly
place the legal consequences deriving from rights brought forward with a claim on the basis
of a legally protectable and tangible interest at stake.
60.
In the case at hand, the Chamber observed that it can be said that the legal consequences
(i.e. compensation for breach of contract by the new club) deriving from the rights based
on a legally protectable and tangible interest (i.e. contractual stability arising from an
employment relationship) could be indeed placed on the Respondent 3, since the Claimant
deemed D to have participated in the alleged breach of contract via a bridge transfer.
61.
In this respect, the Chamber noted that whether that claim can be upheld or not pertains
to the facts and substance of the case. Therefore, the Chamber concluded that the
Respondent 3 has standing to be sued.
ii. Main legal discussion and considerations
62.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the circumstances concerning
the execution of the second contract.
63.
On one hand, the Chamber recalled that C and the player, albeit admitting that the latter
signed a blank document (due to alleged pressure exercised by the Claimant), argued that
the Claimant later filled out the second contract with stipulations different from those the
player had primarily agreed to. In continuation, the Chamber took note of the position of
the Respondent 1 and the Respondent 2 in the sense that the second contract should be
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deemed null and void for the following arguments: (a) it was signed by the player as a blank
document; (b) it was not properly registered by the Country B FA, and (c) its term violated
art. 18 par. 2 of the Regulations.
64.
On the other hand, the DRC observed that the Claimant argued that the second contract
was validly and regularly executed.
65.
In this context, the Chamber acknowledged that it first had to examine whether the second
contract had been validly concluded between the Claimant and the Respondent.
66.
The Chamber then turned to the evidence on file and observed that all copies of the second
contract on file – filed by the Country B FA, the Claimant and the respondents – have the
same content with stamps and signatures with different placements. This, in the Chamber’s
view, demonstrates that at least three copies of the same document were made, as it is
customary in football, i.e. one copy for each party, and one copy for the association
concerned.
67.
More in particular, the Chamber found that the evidence put forward by both the player
and C was not sufficient to disprove the execution of the second contract on 28 August
2017. In other words, the Chamber concluded that the player did not discharge his onus
probandi, in line with art. 12 par. 3 of the Procedural Rules, to demonstrate that he had
signed a blank document.
68.
Consequently, having both given due consideration and weighted the evidence on file, the
DRC found no reason to believe that the second contract was not properly executed on 28
August 2017.
69.
In continuation, the Chamber recalled that the parties also strongly dispute the
circumstances and legal consequences of the registration of the second contract with the
Country B FA. In this respect, however, the Chamber referred to the consistent and wellestablished jurisprudence of the Dispute Resolution Chamber, according to which the
validity of an employment contract cannot be made subject to the fulfilment of
administrative conditions, such as its registration with the relevant association.
70.
Therefore, the Chamber concluded that the parties’ dispute regarding the registration of
the second contract does not have an impact in the legal consequences deriving from the
execution, and termination, of such agreement. Consequently, the Chamber decided that
the issue of the registration of the player cannot be considered for the purposes of assessing
the validity of the contract, and the consequences thereof.
71.
Lastly, the Chamber proceeded to examine the contents of the second contract in light of
the argumentation brought forward by the respondents that such agreement was in
violation of art. 18 par. 2 of the Regulations. By doing so, the Chamber concluded, as per
unequivocal wording of the second contract, that it could not be deemed as an extension,
but was indeed a new contract. Consequently, the DRC established that no violation of art.
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18 par. 2 of the Regulations took place. To this extent, the Chamber once again recalled
that the fulfilment of administrative conditions does not impact the validity of a contract,
and outlined that the registration of the second contract by the Country B FA – either as an
extension or new contractual relationship – was irrelevant with respect to its validity.
72.
On account of the above, the Chamber came to the conclusion that the arguments of the
player and C cannot be upheld and that the second contract signed by and between the
Claimant and the Respondent 1 was a valid employment contract, binding the parties
thereto for five seasons, i.e. as from the season 2017/2018 until the end of the season
2021/2022.
73.
Having so found, the Chamber followed its analysis and turned its attention to the question
of the alleged breach of contract without just cause by the player.
74.
In this respect, the Chamber was eager to highlight that based on the parties’ respective
statements and the documentation available on file, it was undisputed that the player and
C signed an employment contract on 20 July 2019.
75.
Therefore, on account of all the above, the Chamber concurred that the player had acted
in breach of the second contract with the Claimant, without just cause.
76.
Given these circumstances, the Chamber recalled that, according to art. 18 par. 5 of the
Regulations, if a player enters into an employment contract with different clubs for the
same period of time, the provisions of Chapter IV of the Regulations regarding the
maintenance of contractual stability between professionals and clubs shall apply.
77.
The members of the Chamber then referred to item 7. of the “Definitions” section of the
Regulations, which stipulates inter alia that the protected period comprises “three entire
seasons or three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the professional, or two
entire seasons or two years, whichever comes first, following the entry into force of a
contract, where such contract is concluded after the 28th birthday of the professional”. In
this regard, the DRC pointed out that given the facts of the present case, the breach of
contract by the player had occurred within the applicable protected period.
iii. Consequences
78.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent 1 during the protected period.
79.
In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations,
according to which the player is liable to pay compensation to B. Furthermore, pursuant to
the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established
that the player’s new club, i.e. C, shall be jointly and severally liable for the payment of
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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 or any other kind of involvement by the
new club. This conclusion is in line with the jurisprudence of the DRC, which has been
repeatedly confirmed by the Court of Arbitration for Sport (CAS). Notwithstanding, the
Chamber recalled that in accordance with art. 17 par. 2 of the Regulations, it should be
assumed that, unless otherwise proven, any club that signs a contract with a professional
player who has terminated his/her contract without just cause has induced the player to
terminate such contract.
80.
Moreover, the Chamber deemed important to address the issues raised by B, namely that
a bridge transfer has taken place involving D, B, and the player.
81.
In this regard, the Chamber firstly recalled, as a general remark, that the applicable edition
of the Regulations in the matter at hand is that of January 2020 and not March 2020, as
outlined in para. 54 above. Therefore, the DRC was of the firm position that the relevant
regulatory provision which concerns the so-called bridge transfers does not apply to the
case at hand.
82.
Having stated the above, the DRC once again recalled the principle of burden of proof
outlined in art. 12 par. 3 of the Procedural Rules, and accordingly decided that it was
incumbent on B to demonstrate the alleged bridge transfer would have taken place.
83.
In this respect, the Chamber, while noting the particularities of the case at hand, found that
no sufficient evidence had been produced by the Claimant.
84.
In conclusion, the Chamber affirmed its position that C is undoubtedly the player’s new
club in the sense of art. 17 par. 2 of the Regulations.
85.
In continuation, the members of the Chamber recapitulated that, in accordance with art.
17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular
and unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including in particular the remuneration and other benefits due to the
player under the existing contract and/or the new contract, the time remaining on the
existing contract up to a maximum of five years as well as 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 a protected period.
86.
In application of the relevant provision, the Chamber held that it had firstly 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 by either contractual party
in the event of breach of contract. Upon careful examination of said contract, the members
of the Chamber assured themselves that this was not the case in the matter at stake.
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87.
Proceeding then to the calculation of the amount of compensation due by the player, the
Chamber firstly turned its attention to the remuneration and other benefits due to the
player under the existing contract and/or any new contract(s), a criterion which 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 any new contract(s) in the
calculation of the amount of compensation.
88.
According to the documentation provided by the parties, it appears that in accordance with
the second contract, which was to run until 30 June 2022, the player was on one hand to
receive a total remuneration of Country B Currency 9,422,222.22. This amount includes
the remainder of the player’s salaries of July 2019 (i.e. 10 days) and the remuneration from
August 2019 until June 2022.
89.
On the other hand, the value of the C Agreement, concluded between the player and C,
appears to amount to Country B Currency 2,237,070, which corresponds to approximately
EUR 120,000 as converted on 20 July 2019, i.e. the date the player and C signed their
contract.
90.
In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of
the Regulations, after having duly taken into account the specificities of the present case,
the compensation considering the player’s both existing contract and any new contract(s)
amounts to Country B Currency 8,004,575, which is the average between the amounts the
player is entitled to both under the contract and new employment agreement, a sum the
Chamber found to be fair and proportionate. For the sake of completeness, the Chamber
wished to clarify that in order to properly calculate the aforementioned average, in
accordance with the jurisprudence of the DRC, it was necessary to consider the amounts
due to the player under the C Agreement for the same period of time remaining in the
second contract, i.e. from 20 July 2019 until 30 June 2022 or 35 months and 10 days. In
other words, the DRC clarified that in order to properly calculate the average of the amounts
due to the player under both the former and the new contract, it had to (fictionally) extend
the period of the C Agreement to match the original term of the second contract.
91.
The members of the Chamber then turned to the criterion relating to the fees and expenses
paid or incurred by B in accordance with art. 17 par. 1 of the Regulations. The Chamber
recalled that the Claimant argued that a transfer compensation of USD 1,500,000 had been
paid by B to hire the player X as a replacement player, documentation of which has been
presented by B and was confirmed by the information available to the Chamber in TMS.
92.
The majority of the members of the Chamber deemed that the replacement costs could fit
into the description of article 17 par. 1 referring to the fees and expenses paid or incurred
by the former club (amortised over the term of the contract), and therefore could be
considered as part of the compensation to be granted. As a result of the player’s breach of
contract and in light of the evidence on file, the majority of the members of the Chamber
found that B has thus incurred in these expenses to hire a replacement, something that
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would not have taken place in case the Respondent 1 had not breached the second
contract. The majority of the members of the DRC highlighted, in connection with the
foregoing considerations, that such replacement costs were incurred by the Claimant after
the player had unilaterally terminated the second contract, and that the replacement player
and the Respondent 1 both play as wingers/strikers.
93.
Therefore, by a majority decision, the DRC found that the amount of Country B Currency
24,832,600, which is equivalent to approximately USD 1,500,000 as converted on 29 July
2019, i.e. the date when the relevant transfer agreement was signed, was to be taken in
consideration as expenses incurred by B in accordance with art. 17 par. 1 of the Regulations
in the calculation of the relevant compensation to be paid by to the Claimant.
94.
Notwithstanding the above, the members of the Chamber unanimously agreed that the
amount of USD 1,710,000, which was requested by the Claimant in its claim maintaining
that it corresponded to the player’s market value as well as a lost transfer fee considering
offers received, could not be accepted, since it was considered to be speculative.
95.
On account of all of the above-mentioned considerations and the specificities of the case
at hand, the Chamber, by way of a majority decision, decided that the player must pay the
amount of Country B Currency 32,837,175 (i.e. Country B Currency 24,832,600 plus
Country B Currency 8,004,575) to B as compensation for breach of contract without just
cause. Furthermore, C is jointly and severally liable for the payment of the relevant
compensation.
96.
In addition, taking into account B’s request as well as the constant practice of the Dispute
Resolution Chamber in this regard, the Chamber decided that the player and C must pay
to B interest of 5% p.a. on the amount of compensation as of the date of claim, i.e. 6
January 2020, until the date of effective payment.
iv. Compliance with monetary decisions
97.
Finally, taking into account the consideration under number 54. above, the Chamber
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its
decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from
the failure of the concerned party to pay the relevant amounts of outstanding remuneration
and/or compensation in due time.
98.
In this regard, the DRC pointed out that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from playing in official matches,
up until the due amounts are paid and for the maximum duration of six months.
99.
Additionally, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
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100. Therefore, bearing in mind the above, the DRC decided that, in the event that the player
does not pay the amounts due to B within 45 days as from the moment in which B,
communicates the relevant bank details to the player, provided that the decision is final and
binding, a ban from playing in official matches, for the maximum duration of six months
shall become effective on the player in accordance with art. 24bis par. 2 and 4 of the
Regulations.
101. Likewise, the DRC decided that, in the event that C does not pay the amounts due to B
within 45 days as from the moment in which B, communicates the relevant bank details to
C, provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on C in accordance with art. 24bis
par. 2 and 4 of the Regulations.
102. The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
103. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
104. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
105. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, B, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent 1, A, has to pay to the Claimant the following amount:
- Country B Currency 32,837,175 as compensation for breach of contract without just
cause plus 5% interest p.a. on said amount as from 6 January 2020 until the date of
effective payment.
4.
The Respondent 2, C, is jointly and severally liable for the payment of the aforementioned
compensation.
5.
Any further claims of the Claimant are rejected.
6.
The Claimant is directed to immediately and directly inform the Respondent 1 and the
Respondent 2 of the relevant bank account to which the Respondent 1 and the Respondent
2 must pay the due amount.
7.
The Respondent 1 and the Respondent 2 shall provide evidence of payment of the due
amount in accordance with this decision to [email protected], duly translated, if applicable,
into one of the official FIFA languages (English, French, German, Spanish).
8.
In the event that the amount due, plus interest as established above is not paid by the
Respondent 1 within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent 1 shall be restricted on playing in official matches up until the due
amount is paid and for the maximum duration of six months . The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the due
amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
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9.
In the event that the amount due, plus interest as established above is not paid by the
Respondent 2 within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent 2 shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods. The aforementioned ban mentioned
will be lifted immediately and prior to its complete serving, once the due amount is
paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
10.
This decision is pronounced free of costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or
a redacted version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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