Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 October 2015,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Eirik Monsen (Norway), member
Theodore Giannikos (Greece), member
Taku Nomiya (Japan), member
on the matter between the player,
Player A, country B,
as Claimant / Counter-Respondent 1
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Counter-Respondent 2
and the club,
Club G, country B
as Counter-Respondent 3
and the club,
Club H, country I
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 31 August 2009, the player from country B, Player A (hereinafter: player or
Claimant/Counter-Respondent 1) and the club from country D, Club C (hereinafter:
Club C or Respondent/Counter-Claimant) signed an employment contract (hereinafter:
contract) valid for the seasons 2009/10, 2010/11 and 2011/12, i.e. “from 1 June 2009
until 31 May 2012”, as well as an appendix to the contract (hereinafter: appendix),
which established the remuneration to be paid to the player.
2.
According to the appendix, the player was entitled to receive the following
remuneration:
Season 2009/10:
886,835, divided in 12 monthly salaries.
Season 2010/11:
939,036, divided in 12 monthly salaries.
Season 2011/12:
1,011,516, divided in 12 monthly salaries of 84,293.
3.
During the period between January 2010 and January 2011, according to Club C and
the player, the player was transferred on a loan basis to the clubs from country B, Club
J and Club K.
4.
In January 2011, Club C signed a loan agreement (hereinafter: loan agreement) with
the club from country F, Club E (hereinafter: Club E or Counter-Respondent 2), valid
from the date of signature until 31 December 2011.
5.
The loan agreement established, inter alia, the following:
- Art. 2.3 – “Club C will instruct “Club K” to transfer the Player’s international
transfer certificate (“ITC”) to Club E.”
- Art. 2.7 – “Club E is obliged and undertakes to transfer the Player’s ITC back to
Club C or to other football club that will be indicated by Club C, in the end of the
period and not later than 31.12.2011.”
- Art. 3.1. – “Club C loans the Player to Club E for the period, free of charge without
charging any consideration from Club E for that period only.”
- Art. 3.2 - “It is hereby clarified that during the Period Club E shall bear all
payments with regard to the Player, including but not limited to the Player’s
salary, insurance, social conditions, etc.”
- Art. 4 – “Club E undertakes to insure the Player at its expense, by an insurance
policy in a minimum sum of US 1,000,000, in which Club C shall be the
beneficiary”.
- Art. 7 – “No party may pledge, assign, delegate or otherwise transfer any of its
rights or obligations under this agreement, without prior written consent of the
other party”.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 2 of 17
- Art. 8 – “No behaviour on the part of any of the parties may be deemed a waiver
of any of his rights under this agreement or by any law, or a waiver or consent on
his part for any breach or non-compliance with any term, unless the waiver,
consent, delay, change, cancellation or addition have been expressly made in
writing.”
- Art. 9 – “No change or modification of this agreement shall be valid and binding
unless in writing and signed by both parties”.
6.
On 9 January 2011, the player and Club E concluded an employment contract, valid as
from 11 January 2011 for one year.
7.
According to clause 2 of the employment contract with Club E, the player was entitled
to a monthly remuneration and other benefits as established in the Annex. According
to the Annex, the player was entitled to a monthly salary, which amount was not
specified, as all well as to the following remuneration:
-
USD 70,000 as “signing-on, loan and commission fee”, payable in January 2011;
USD 7,500 monthly, as image rights;
Apartment;
2 flight tickets Country B – Country F – Country B.
8.
According to clause 3 of the employment contract with Club E, it can be prematurely
terminated in conformity with its clause 13 or by mutual agreement.
9.
Clause 13 of the employment contract with Club E established that, in case the player
commits a violation of the Regulations, Statute or any rule of the football from
country F, or disobeys the coaching staff or the management of the club, Club E may
terminate the contract without paying any amount to the player. Moreover, after the
period of 180 days after the signature of the employment contract, based on a report
of the coaching staff, the club may terminate the employment contract without any
consequence.
10.
On 7 July 2011, Club E terminated the employment contract with the player based on
a report made by its coach and allegedly in accordance with the employment contract.
11.
On 22 July 2011, the player and Club E signed a termination agreement, by means of
which both parties agreed to prematurely terminate the employment contract
concluded on 9 January 2011. The termination agreement also established that once
the contractual relationship had been terminated, the player shall be reintegrated in
Club C.
12.
On the same date, 22 July 2011, the player notified Club C that the employment
contract with Club E was terminated and requested to be informed of the place and
date he should join Club C, since the contract with Club C was valid until 31 May 2012.
On 24 July 2011, the player requested a flight ticket to join Club C.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 3 of 17
13.
On 25 July 2011, Club C notified Club E to continue fulfilling the loan agreement until
its expiry. On 26 July 2011, Club C informed the player to wait for further instructions
until the situation was clarified with Club E.
14.
On 9 August 2011, the player notified Club C in writing, asking Club C to proceed with
the following:
- payment of the salary for the month of July;
- request of the ITC to register the player with the Football Association of country
D;
- admission to training;
- provision of a house and car;
- reimbursement of travel expenses.
By means of this letter, the player stated having decided to travel to country D on 5
August 2011 to resume his duties with Club C, since Club C did not reply to any of his
previous communications. In this letter, the player further stated that the obligations
of Club C towards him were only suspended during the loan period and thus, after the
termination of the loan, irrespective of the reason, Club C must reassume its
obligations as established in the contract.
15.
On 10 August 2011, Club C answered in writing stating that a loan agreement was
concluded with Club E valid until 31 December 2011, according to which Club E
assumed to pay the player’s salary. Moreover, Club C referred to arts. 8 and 9 of the
loan agreement and held that any modification, including cancellation, must be made
in writing and signed by both parties. In this respect, Club C affirmed not having
received any confirmation from Club E, reason why the loan agreement remained
valid and all obligations towards the player until 31 December 2011 remained under
the responsibility of Club E.
16.
On 29 August 2011, the player notified Club C that, considering that Club C refused to
fulfil the contract before the original expiry of the loan, i.e. 31 December 2011, he had
to find a way to mitigate his damages and play and therefore, he concluded an
employment contract with the club from country B, Club G (hereinafter: Club G or
Counter-Respondent 3) for six months. The player submitted a copy of the pertinent
employment contract valid from 11 August 2011 until 30 June 2012, with a monthly
salary of 4,100. In this respect, the player held that this is the minimum validity for an
employment contract to be registered by the Football Association of country B, but
that the parties would mutually terminate the contract on 31 December 2011, in order
for him to return to Club C.
17.
On 31 August 2011, Club C contacted the player, Club E and Club G stating that it
considered the loan agreement still valid since it never got a reply from Club E and,
thus, that any transfer without its consent would be a breach of contract.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 4 of 17
18.
19.
In September 2011, and in reaction to a letter from FIFA regarding the issuance of the
International Transfer Certificate (ITC), Club C explained the situation and emphasised
that the loan agreement was still in force.
On 29 September 2011, FIFA informed the Football Association of country B that it
was not in a position to intervene with respect to its ITC request made to the Football
Federation of country F, since according to art. 10 par. 3 of the Regulations on the
Status and Transfer of Players, the club that has accepted a player on a loan basis is
not entitled to transfer him to a third club without authorization of the club that
released the player on loan.
20.
On 23 and 29 November 2011, the player contacted Club C, asking for the flight tickets
to join Club C on 1 January 2012 and for Club C to confirm if it wanted the player to
come back or to end the contract unilaterally. In particular, in his letter dated 29
November 2011, the player established a deadline until 1 December 2011 for Club C to
reply.
21.
On 16 December 2011, the player lodged a claim in front of FIFA against Club C for
breach of contract, requesting payment of the amount of USD 264,089.62,
corresponding to the remaining value of the contract, as well as six months of salary
corresponding to alleged sporting loss. The player further requested 5% interest as
from the date of the breach of contract and procedural costs.
22.
According to the player, the amount of USD 264,089.62 corresponds to 26 days (26 x
USD 732.40) for the period between 5 August 2011 and 31 August 2011 and 11
months (11 x USD 22,277.02) for the period between 1 September 2011 and 31 May
2012. In particular, the player indicated that the monthly salary of 84,293 was
equivalent to USD 22,277.02.
23.
The player stated that he only played for Club C during six months, being loaned to
Club J and, subsequently, to Club K. Moreover, in January 2011, he was loaned for a
year to Club E. In particular, the player stated that all the loan agreements were
negotiated with his agent and thus, he had no direct contact with Club C. In this
regard, the player alleged that he had not signed any agreement exempting Club C
from paying his salaries and therefore, Club C’s obligation to pay his remuneration
remained valid.
24.
In addition, the player held having been forced to agree to the termination of his
employment contract with Club E.
25.
The player affirmed that, since the contract with Club C was never officially suspended
and the fact that he was obliged “under duress” to sign the termination of the
employment contract with Club E, the contract with Club C re-entered into force.
26.
Moreover, the player held having immediately informed Club C of the situation. In
particular, he asked Club C to rejoin the team, but he was informed that he could only
join the team after the original expiry of the loan agreement with Club E, i.e. 31
December 2011.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 5 of 17
27.
28.
The player further held that he bought a flight ticket and presented himself at Club C
on 5 August 2011 and on 9 August 2011, but he was not allowed to train.
Considering that Club C insisted that the loan agreement with Club E was valid until
31 December 2011 and did not allow him to train or play for it, the player returned to
country B to look for a club. The player signed a contract with Club G and requested
Club C to be authorized to play for Club G until January 2012, but Club C did not
authorize the issuance of the ITC.
29.
The player insisted on the fact that he did not sign the loan agreement with Club E.
Moreover, he referred to the CAS jurisprudence which allegedly establishes that the
loan agreement and the employment contract are autonomous and independent and
held that the terms of the loan agreement cannot be applied against the player.
Consequently, the player deems that Club C had to accept him back once the
employment contract with Club E was terminated.
30.
Therefore, according to the player, he did everything possible to fulfil his contractual
obligations while Club C breached the contract by: a) not sending the flight tickets; b)
not allowing him to train with the squad; c) rejecting the player, d) not paying his
salaries and e) not requesting the issuance of ITC for the player to be registered again
with the Football Association of country D.
31.
Moreover, Club C did not allow him to play for any other club on loan and deprived
him of exercising his right to work as a professional player.
32.
On 26 March 2012, Club C lodged a claim against the player, Club E and Club G,
claiming the amount of USD 1,000,000 as compensation for breach of contract as well
as the imposition of sporting sanctions.
33.
According to Club C, Club E assumed the obligation to pay the remuneration to the
player during the loan period and, in July 2011, the player contacted Club C informing
it about the termination of the employment contract with Club E. Club C held having
never received any communication from Club E in this respect.
34.
In this regard, Club C alleged that it prepared the budget and training camp for the
season 2011/12 before receiving the player’s notification. In any case, according to
Club C, it contacted Club E to inquire about the player’s situation and informed the
player to wait in country F until the situation was clarified with Club E. Consequently,
Club C held that it could neither accept the player nor transfer him to another club
until it was determined that the loan agreement was terminated.
35.
The player presented himself anyway, but Club C could not allow him to play or it
would be violating the terms of the loan agreement as well as the applicable
regulations.
36.
In this context, and considering the player’s requests, Club C contacted the player in
writing on 10 August 2011 explaining that, considering the silence of Club E, the loan
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 6 of 17
agreement remained valid and any claims from the player should be addressed to Club
E.
37.
Subsequently, Club C held having been surprised by the contents of the player’s letter
dated 29 August 2011, by means of which the player for the first time raised the
argument that the loan agreement was signed without his consent, that Club C never
answered his letters as well as that he wanted to be transferred to an club from
country B.
38.
In this context, Club C contacted the player, Club E and Club G, informing them that if
the player was transferred from Club E to Club G without its authorization, the player
would be in breach of the contract with Club C and they would be jointly liable to
compensate Club C. Club C therefore rejected the ITC request made by the Football
Association of country B, considering that the club where the player was on loan, i.e.
Club E, could not transfer the player.
39.
On account of all the above, Club C started to negotiate an amicable solution with all
the parties, whereby Club C would agree to terminate the contract with the player
and the player would pay USD 150,000 to Club C.
40.
The termination agreement was never signed and the player never paid Club C the
amount agreed. In this regard, Club C enclosed a copy of an email from the player’s
former lawyer confirming that although the parties reached an agreement, the player
decided to use another strategy.
41.
On account of the above, Club C considered that a) the player breached the contract
by signing an employment contract with another club and not returning to Club C on
1 January 2012; b) breached the termination agreement with Club C by not paying the
amount agreed; and c) breached the FIFA Regulations by playing for Club G without
the required formalities to do so.
42.
In addition, according to Club C, as established in the loan agreement, the value of
the player is USD 1,000,000.
43.
Moreover, Club C affirmed that Club E and Club G should be jointly liable for the
breach of the contract and payment of the amount of compensation for breach of
contract.
44.
In particular, regarding Club E, Club C held that it had breached the loan agreement,
in particular arts. 2.7, 3.2, 7 and 9, and violated art. 10.3 of the Regulations on the
Status and Transfers of Players, by trying to transfer the player while on loan.
45.
As regards Club G, Club C held that the latter was aware of the existence of the loan
agreement and still allowed the player to train with its team.
46.
Furthermore, Club C explained that the player was loaned to several clubs in Region L
because he did not meet its expectations. In this respect, Club C emphasised that
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 7 of 17
47.
although the player did not sign the loan agreement with Club E, he clearly accepted
the loan, signing an employment contract with Club E.
In this context, Club C held that, in any case, the player is not entitled to receive
remuneration during the period from August 2011 until December 2011, since he was
officially on loan at Club E, which was responsible to pay the remuneration. If the
player has decided to terminate his contract with Club E without consulting with Club
C, Club C cannot be held liable for such payments.
48.
Moreover, according to Club C, the player is not entitled to receive the salaries for
January until May 2012 either, since he never returned after the expiry of the loan
period and practically disappeared, breaching the contract. In this respect, Club C
referred to art. 3.2 of the appendix which establishes that “should the player decide
by himself not to play and/or not to train, and/or not to take part in the team activity,
he shall be denied all right to receive any payment whatsoever from the consideration
specified above in paragraph 2, without prejudice to the club’s right to bring a
disciplinary charge against him”.
49.
The player replied to Club C’s claim, insisting that he was not a party to the loan
agreement and thus, cannot be responsible for any potential breach.
50.
Furthermore, the player held that the contract with Club C, on the other hand,
remained valid during the loan period and its execution was merely suspended while
the player rendered his services to Club E. Consequently, according to the player, from
the moment the employment contract with Club E was terminated, the loan
agreement had no longer an object and the contract with Club C restarted.
51.
Club E submitted its position, arguing on a preliminary basis that the claim of Club C
would be time-barred.
52.
Moreover, Club E deems that the Dispute Resolution Chamber does not have
competence to deal with the part of the claim against Club E and Club G, since the
Players’ Status Committee would be the competent deciding-body for disputes
between clubs.
53.
Moreover, Club E alleged having complied with its duties, since:
- it did not authorize the transfer of the player to Club G, which was later
authorized by the ordinary courts of country B;
- the player remained registered in the Football Federation of country F until 5
September 2012;
- the player and Club E agreed to mutually terminate the contract and thus, the
loan agreement ceased to have effects de facto and de jure, considering that the
main object of the loan agreement was that the player would play for Club E.
54.
Moreover, Club E pointed out that Club C was fully aware of the termination, since
Club C itself enclosed a copy of the termination agreement signed by the player and
Club E to its position and the player informed Club C several times about the
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 8 of 17
55.
termination. In addition, Club E held having fully complied with the loan agreement
and also stated not being responsible for the player’s actions after the termination.
Finally, Club E contested the amount claimed as compensation by Club C for the
following reasons:
- Club C declares that the player was transferred because they were not satisfied
with his performance;
- the negotiations between Club C and the player to amicably settle the matter
ranged from USD 150,000 to USD 200,000;
- the transfer compensation paid to Club M
by Club C
was
USD 627,500.
56.
Club G submitted its position also rejecting the claim of Club C. Club G emphasised
that the player played for Club C only for a few months. After the termination of the
employment contract with Club E, although the player tried to join Club C, the latter
refused the player excusing itself from any responsibility in this regard, clearly denying
the player his right to perform his activity.
57.
Therefore, in such situation, the player had no other choice and signed the
employment contract with Club G. In the light of the refusal by the Football
Association of country D to issue the ITC, Club G obtained authorization for the player
to be registered with it from the ordinary court in country B.
58.
Moreover, at the end of the loan period, Club C did not request the return of the ITC
so that the player could join Club C, thereby demonstrating that it was not interested
in the services of the player.
59.
According to the information contained in the TMS, the player was registered with
the club from country I, Club H, on 5 September 2012, being transferred from country
F to country I.
60.
The club from country I, Club H, provided its comments to Club C’s claim, stating that
the player was transferred from country F on 5 September 2012 as a player free of
contract and was then transferred to the club from country O, Club N. Moreover, Club
H, affirmed not being aware of any dispute between the player and Club C.
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 16 December
2011. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural
Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 9 of 17
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 in combination with art. 22
lit. b of the Regulations on the Status and Transfer of Players (edition 2015) the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from country B and a club from country D as well as a club from country F and a
club from country B.
3.
However, the Chamber noted that the Counter-Respondent 2 deems that the Dispute
Resolution Chamber has no competence to deal with the Respondent/CounterClaimant’s claim against the Counter-Respondent 2 and the Counter-Respondent 3,
alleging that the FIFA Players’ Status Committee is the competent body to decide on
disputes between clubs.
4.
In this respect, the Chamber highlighted that the basis of the Respondent/CounterClaimant’s claim against the Counter-Respondent 2 and Counter-Respondent 3 is the
employment contract concluded between the Respondent/Counter-Claimant and the
Claimant/Counter-Respondent 1 as well as the alleged breach of said employment
contract by the latter and potential consequences deriving thereof.
5.
On account of the above as well as art. 22 lit. b of the Regulations on the Status and
Transfer of Players, the Chamber rejected the argument put forward by the CounterRespondent 2 as regards the competence of the Chamber to deal with the
Respondent/Counter-Claimant’s claim against the Counter-Respondent 2 and CounterRespondent 3.
6.
The Chamber then reverted to the argument of the Counter-Respondent 2, according
to whom the Respondent/Counter-Claimant’s counterclaim is barred by the statute of
limitations. In this regard, the members of the Chamber referred to art. 25 par. 5 of
the FIFA Regulations on the Status and Transfer of Players (edition 2015), 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 Respondent/Counter-Claimant’s counterclaim having been lodged in
front of the DRC on 26 March 2012 and the event giving rise to the dispute having
occurred in 2011, the members of the Chamber had to reject the respective argument
of the Counter-Respondent 2 and confirmed that the Respondent/Counter-Claimant’s
petition was lodged in front of the DRC within said two years’ period of time. The
Respondent/Counter-Claimant’s claim is, thus, not barred by the statute of limitations
in accordance with art. 25 par. 5 of the Regulations on the Status and Transfer of
Players.
7.
Having established the above, the Chamber analysed which regulations should be
applicable as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2015), and considering that the Claimant/Counter Respondent 1’s
claim was lodged on 16 December 2011, the 2010 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 10 of 17
8.
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 all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
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.
9.
Considering the density of the facts of the present matter, the DRC deemed
appropriate to recall the most relevant facts.
10.
The DRC first and foremost acknowledged that the Claimant/Counter-Respondent 1
and the Respondent/Counter-Claimant had concluded an employment contract on 31
August 2009 which was valid until 31 May 2012.
11.
In continuation, the Chamber took note that, after six months of the signature of the
contract with the Respondent/Counter-Claimant, the Claimant/Counter-Respondent 1
was loaned to different clubs from country B and subsequently, in January 2011, to
the Counter-Respondent 2 for a period of one year, with which club the
Claimant/Counter-Respondent 1 signed an employment contract valid for the same
period of time.
12.
Moreover, the DRC acknowledged that during the agreed loan period at the CounterRespondent 2, the Claimant/Counter-Respondent 1 and the Counter-Respondent 2
mutually agreed to prematurely terminate the employment contract on 22 July 2011
and that, on the same date, the Claimant/Counter-Respondent 1 notified the
Respondent/Counter-Claimant of such termination and asked to be informed where to
join the team, requesting a flight ticket.
13.
In continuation, the members of the DRC took note that, on 5 August 2011, the
Claimant/Counter-Respondent 1 travelled to country D and, on 9 August 2011, asked
the Respondent/Counter-Claimant to pay the salary for July, to be registered with the
Respondent/Counter-Claimant and to be admitted to training. On the other hand, the
DRC acknowledged that the Respondent/Counter-Claimant replied to the
Claimant/Counter-Respondent 1 stating that the loan agreement with the CounterRespondent 2 could not be modified without its consent and that the CounterRespondent 2 remained responsible towards the Claimant/Counter-Respondent 1 until
31 December 2011.
14.
The members of the Chamber noted that, subsequently, on 29 August 2011, the
Claimant/Counter-Respondent 1 informed the Respondent/Counter-Claimant that he
had signed a contract with the Counter-Respondent 3 to be able to cover his expenses,
to which the Respondent/Counter-Claimant replied that it considered the loan
agreement with the Counter-Respondent 2 still valid.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 11 of 17
15.
In addition, the members of the DRC acknowledged that the Claimant/CounterRespondent 1 contacted the Respondent/Counter-Claimant in writing on two
occasions in November 2011, requesting a flight ticket to join the
Respondent/Counter-Claimant on 1 January 2012 as well as asking whether the
Respondent/Counter-Claimant wished to continue the employment relationship,
establishing a deadline until 1 December 2011 to reply.
16.
In continuation, the DRC pointed out that the Claimant/Counter-Respondent 1 lodged
a claim against the Respondent/Counter-Claimant for breach of contract on 16
December 2011 and that the Respondent/Counter-Claimant lodged a claim against the
Claimant/Counter-Respondent 1, the Counter-Respondent 2 and Counter-Respondent
3 for breach of contract on 26 March 2012.
17.
In this respect, the DRC took into account that, according to the Claimant/CounterRespondent 1, he did everything possible to fulfil his contractual obligations, while
the Respondent/Counter-Claimant breached the contract. The Claimant/CounterRespondent 1 held that the Respondent/Counter-Claimant failed to comply with its
obligations by inter alia not sending the Claimant/Counter-Respondent 1 the
requested flight tickets; not allowing him to train; not accepting him back after the
termination of the employment contract with the Counter-Respondent 2; not paying
his salaries; and not requesting the return of his ITC from country F to country D.
18.
Moreover, the Claimant/Counter-Respondent 1 stated that he did not sign the loan
agreement concluded between the Respondent/Counter-Claimant and the CounterRespondent 2, reason why once the employment contract with the CounterRespondent 2 was terminated, the Respondent/Counter-Claimant had to accept him
back immediately.
19.
On the other hand, the DRC took note that, according to the Respondent/CounterClaimant, it never received a confirmation from the Counter-Respondent 2 of the
termination of the employment contract with the Claimant/Counter-Respondent 1 and
thus, it could neither accept the Claimant/Counter-Respondent 1 back nor transfer him
to another club. Moreover, the Respondent/Counter-Claimant alleged that the
Counter-Respondent 2 was responsible to pay for the salaries during the loan period
as well as that, in any case, the Claimant/Counter-Respondent 1 is not entitled to any
remuneration between January and May 2012, since he did not return to the
Respondent/Counter-Claimant.
20.
In addition, the Respondent/Counter-Claimant stated that, even though the
Claimant/Counter-Respondent 1 did not sign the loan agreement between the
Respondent/Counter-Claimant and the Counter-Respondent 2, he clearly accepted the
loan by signing the employment contract with the Counter-Respondent 2.
21.
Finally, the DRC took note that the Respondent/Counter-Claimant indicated that the
Claimant/Counter-Respondent 1 was loaned to several clubs during the contractual
period because he did not meet the Respondent/Counter-Claimant’s expectations.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 12 of 17
22.
In respect of the registration of the Claimant/Counter-Respondent 1 with the CounterRespondent 2 on a loan basis, the Chamber emphasized that the Claimant/CounterRespondent 1 merely holds that he has not signed the loan agreement, whereas from
the facts of the case it can be concluded that he was aware of and agreed to being
employed by the Counter-Respondent 2 on a loan basis.
23.
In continuation, the Chamber turned its attention to the Counter-Respondent 2’s
position to the Respondent/Counter-Claimant’s claim. The Chamber took note that the
Counter-Respondent 2 rejected the Respondent/Counter-Claimant’s claim and held
having never authorized the transfer of the Claimant/Counter-Respondent 1 to the
Counter-Respondent 3, which was in fact later authorized by the ordinary court in
country B. Moreover, the DRC took note that, according to the Counter-Respondent 2,
since the Counter-Respondent 2 and the Claimant/Counter-Respondent 1 mutually
terminated the employment contract between them, the loan agreement ceased to
have effects after losing its main object, i.e. the Claimant/Counter-Respondent 1
playing for the Counter-Respondent 2.
24.
Finally, the Counter-Respondent 2 highlighted that the Respondent/Counter-Claimant
was aware of the termination of the employment contract and, in any case, it held not
being responsible for the Claimant/Counter-Respondent 1’s actions after the mutual
termination of the employment contract with the Claimant/Counter-Respondent 1.
25.
Subsequently, the DRC acknowledged that the Counter-Respondent 3 also rejected
the Respondent/Counter-Claimant’s claim, emphasizing that the Claimant/CounterRespondent 1 only played for the Respondent/Counter-Claimant for a few months
and, after the termination of the employment contract with the Counter-Respondent
2, it refused to accept the Claimant/Counter-Respondent 1 back and, at the same time,
did not authorize the Claimant/Counter-Respondent 1 to play for another team. The
Counter-Respondent 3 also stated that the Respondent/Counter-Claimant was no
longer interested in the services of the Claimant/Counter-Respondent 1 and never
asked for the return of the ITC to register the Claimant/Counter-Respondent 1 after
the end of the loan period with the Counter-Respondent 2.
26.
Considering all the above, the DRC concluded that, from the facts and documentation
on file, it can be noted that the Respondent/Counter-Claimant never asked the return
of the Claimant/Counter-Respondent 1’s ITC for his registration after the end of the
loan period agreed with the Counter-Respondent 2. Moreover, it can be noted that
the Claimant/Counter-Respondent 1 only played six months for the
Respondent/Counter-Claimant and that during the rest of the contractual period with
the Respondent/Counter-Claimant he was loaned to different clubs due to the
Claimant/Counter-Respondent 1 not meeting the Respondent/Counter-Claimant’s
expectations.
27.
Furthermore, it can also be noted that the Respondent/Counter-Claimant was ready to
settle the matter but finally the agreement was not signed. In addition, the
Respondent/Counter-Claimant lodged its claim against the Claimant/CounterRespondent 1 on 26 March 2012 only.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 13 of 17
28.
In addition to all the aforementioned circumstances, the members of the DRC
highlighted the fact that the Claimant/Counter-Respondent 1 contacted the
Respondent/Counter-Claimant on 23 and 29 November 2011 asking for the flight
ticket to join the team on 1 January 2012, in particular, he contacted the
Respondent/Counter-Claimant on 29 November 2011 specifically asking for the latter’s
confirmation as to whether the Respondent/Counter-Claimant wished to continue the
employment relationship. In this regard, the Chamber took note that the
Respondent/Counter-Claimant did not react to the Claimant/Counter-Respondent 1’s
correspondence offering his services.
29.
The Chamber deemed that all the above circumstances are clear indications that the
Respondent/Counter-Claimant was not any longer interested in the services of the
Claimant/Counter-Respondent 1, in particular, in having the Claimant/CounterRespondent 1 return to the club so as to avail of his services after the end of the
original loan period agreed upon with the Counter-Respondent 2.
30.
On account of all the above circumstances, in particular, by not requesting the
relevant ITC for the Claimant/Counter-Respondent 1 although this being the
responsibility of the Respondent/Counter-Claimant and by not replying to the
notifications made by the Claimant/Counter-Respondent 1 in November 2011, the
Chamber established that the Respondent/Counter-Claimant had no longer been
interested in the Claimant/Counter-Respondent 1’s services. Accordingly, the Chamber
decided that de facto the Claimant/Counter-Respondent 1 could rightly assume that
he was no longer contractually bound to the Respondent/Counter-Claimant as of 1
December 2011, deadline that he had indicated when offering his services in
November 2011 and that, consequently, the Respondent/Counter-Claimant is to be
held liable for the early termination of the contract.
31.
Consequently, the Chamber rejected the claims lodged by the Respondent/CounterClaimant against the Claimant/Counter-Respondent 1, the Counter-Respondent 2, and
the Counter-Respondent 3.
32.
Having established that the Respondent/Counter-Claimant is to be held liable for the
early termination of the contract, the Chamber focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant/Counter-Respondent 1 is entitled
to receive from the Respondent/Counter-Claimant an amount of money as
compensation for breach of contract.
33.
In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the members
of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
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
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 14 of 17
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.
34.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract. In this regard,
the Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
35.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant/Counter-Respondent 1 under the terms of the
employment contract.
36.
At this point, and considering the opposing position of the Claimant/CounterRespondent 1 and the Respondent/Counter-Claimant, the Chamber deemed necessary
to first point out that, although the Claimant/Counter-Respondent 1 and the CounterRespondent 2 decided to mutually terminate the employment contract between them
on 22 July 2011, the pertinent loan agreement was still valid until 31 December 2011.
37.
In this respect, the DRC was eager to emphasise that the termination of the
employment contract between the Counter-Respondent 2 and the Claimant/CounterRespondent 1 did not affect the validity of the loan agreement.
38.
Therefore, and considering that according to the loan agreement the CounterRespondent 2 was responsible to pay the Claimant/Counter-Respondent 1’s
remuneration during the loan period, the remaining value of the contract for the
purposes of calculating the compensation in the matter at hand is the remuneration
due from 1 January 2012 until 31 May 2012. The DRC concluded that the
Claimant/Counter-Respondent 1 would have received a total remuneration of 421,465
had the contract between the Claimant/Counter-Respondent 1 and the
Respondent/Counter-Claimant been executed until its ordinary date of expiry.
39.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 1 had signed an employment contract with another club during the
relevant period of time, by means of which he would have been enabled to reduce his
loss of income. According to the constant practice of the DRC, such remuneration
under a new employment contract shall be taken into account in the calculation of
the amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
40.
Indeed, the Claimant/Counter-Respondent 1 found employment with the CounterRespondent 3 until 30 June 2012. In accordance with the pertinent employment
contract, which has been made available by the Claimant/Counter-Respondent 1, he
was entitled to receive a monthly salary of 4,100. Consequently, the Chamber
established that the value of the new employment contract concluded between the
Claimant/Counter-Respondent 1 and the new club for the relevant period, i.e. as from
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 15 of 17
1 January 2012 until 31 May 2012, amounted to 20,500, which is equivalent to
approximately 17,500.
41.
However, the Chamber took into account that, in August 2011, the Claimant/CounterRespondent 1 signed a new employment contract, with the Counter-Respondent 3, for
a period of time exceeding the original loan period.
42.
Consequently, on account of all the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant/Counter-Respondent 1´s claim and that the Respondent/Counter-Claimant
must pay the amount of 200,000 to the Claimant/Counter-Respondent 1, which was to
be considered reasonable and proportionate as compensation for breach of contract
in the case at hand.
43.
In addition and with regard to the Claimant/Counter-Respondent 1's request for
interest, in line with its constant jurisprudence, the Chamber decided that the
Claimant/Counter-Respondent 1 is entitled to 5% interest p.a. on said amount as of
the date on which the claim was lodged until the date of effective payment.
44.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant/CounterRespondent 1's claim pertaining to procedural costs in accordance with art. 18 par. 4
of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in
this regard.
45.
The members of the Chamber concluded their deliberations by rejecting any further
claim of the Claimant/Counter-Respondent 1.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent 1, Player A, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1,
within 30 days as from the date of notification of this decision, compensation for
breach of contract in the amount of 200,000 plus 5% interest p.a. as of 16 December
2011 until the date of effective payment.
4.
In the event that the amount due to the Claimant/Counter-Respondent 1 is not paid
by the Respondent/Counter-Claimant within the stated time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
5.
Any further request filed by the Claimant/Counter-Respondent 1 is rejected.
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 16 of 17
6.
The Claimant/Counter-Respondent 1 is directed to inform the Respondent/CounterClaimant immediately and directly of the account number to which the remittance is
to be made and to notify the Dispute Resolution Chamber of every payment received.
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS, a copy of which we
enclose hereto. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal arguments
giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Acting Deputy Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D / Club E, country F /
Club G, country B / Club H, country I
Page 17 of 17