Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2004,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Theo Van Seggelen (Netherlands), member
Jean-Marie Philips (Belgium), member
Mario Gallavotti (Italy), member
on the claim presented by the
Club X, France
as Claimant
against the
Player, France
as Respondent
and the
Club Y, England
as Intervener
regarding the transfer of the player and the breach of an employment contract
./…
Facts of the case:
- The French player signed a youth player’s contract (original French denomination: “contrat
de joueur aspirant”) with the French club X for the period from 1 July 2003 to 30 June
2004.
- The two parties also concluded a training agreement (original French denomination:
“convention de formation”) for the period from 1 July 2003 to 30 June 2006.
- At the beginning of August 2004, after the youth player’s contract had expired, the player
signed a professional employment contract with the English club Y.
- On 13 August 2004, The Football Association contacted the French Football Federation to
request an International Registration Transfer Certificate (IRTC) for the player.
- The French Football Federation did not issue the IRTC as a result of opposition from the
club X.
- On 19 August 2004, The Football Association requested that FIFA order the French Football
Federation to issue the IRTC for the player in question.
- On 2 September 2004, the FIFA administration instructed the French Football Federation to
immediately issue the IRTC for the player to The Football Association, on the
understanding that the training agreement valid until 30 June 2006 did not constitute an
employment contract and therefore, did not prevent the player from signing an
employment contract with another club of his choice. In the same letter, the FIFA
administration authorised The Football Association to register the player until it received
the official IRTC from the French Football Federation.
- On 14 September 2004, the club X lodged an appeal with the Court of Arbitration for Sport
(CAS) against the authorisation issued by the FIFA administration for the player to be
registered with The Football Association. As part of this appeal, the club X, also applied for
the stay of execution of the challenged decision.
- On 6 October 2004, the CAS accepted the aforementioned application and suspended the
registration of the player in question for the club Y until the Dispute Resolution Chamber
had passed a final decision on the case.
- The club X is now asking the Dispute Resolution Chamber:
o to confirm the existence of contractual ties between the club X and the player;
o to rule that the player is obliged to sign an employment contract with the club X
o to order the suspension of the player from all professional football activities, with
immediate effect, until he returns to the club X.
- In the opinion of the French club, the player is tied to the club X until 30 June 2006 on
account of the training agreement. In its request the club X admits, however, that the
training agreement is independent from any employment contract possibly signed
between the player and the club, and it does not have the status of an employment
contract.
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- Furthermore, the club X explains that the training agreement foresees the possibility of
early unilateral termination. However, the French club maintains that the formal conditions
for such termination were never fulfilled by the player.
- Moreover, the club X emphasises that the youth player’s contract constituted a
commitment for the parties to respect the norms regarding the status of youth players’
provided for in the French Professional Football Charter (hereinafter: the Charter).
- The French club is of the opinion that, in line with art. 43 of the FIFA Regulations for the
Status and Transfer of Players, the Charter must be respected by the Dispute Resolution
Chamber also when judging over international transfers.
- Art. 261 of the Charter reads as follows (English translation by the Chamber):
“Upon normal expiration of apprentice and youth player’s contracts, the club has
the right to insist that the other party signs a new trainee player or elite player
contract depending on the age of the player.
…
By no later than 30 April, the club must inform the player of its intentions by a
registered letter that requires acknowledgement of receipt, ... .
…
2. If the player refuses to sign a contract as a trainee player or an elite player ...,
he shall not be permitted to sign for another club in the French professional
league for a period of three years ... .
…”
- The club X maintains that on 1 March 2004 it notified the player of its intention to
complete a new trainee contract with him. The club stresses that the player never
expressed any opposition to signing the contract in line with its demand.
- The player claims, however, that already in March 2004 he informed the club X of his
intention to not accept a further contract from the French club since he was not happy
anymore with the way the club treated him. Furthermore, he had come to learn that some
of his colleagues had been offered much better contractual conditions.
- The player and the club Y ask the Dispute Resolution Chamber to annul the suspension of
the player’s registration for the English club.
- The club Y has no objections to paying training compensation for the player in question.
- The English club and the player maintain that the training agreement cannot be viewed as
an employment contract, but merely as an agreement that applies in conjunction with an
employment contract.
- In the opinion of the player and the club Y, there are no contractual ties between the player
and the French club anymore. In particular, they emphasise that the youth player’s
contract between the player and the club X expired on 30 June 2004.
- Furthermore, in view of art. 261 point 2 of the Charter, the club Y and the player are of the
opinion that the Charter only prevents the player from being transferred within France and
it does not impose any restriction on transfers at international level.
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- On 9 November 2004, the case was submitted for consideration to the Dispute Resolution
Chamber, which passed the following decision:
o the French club and the player are invited to start negotiations in order to amicably
settle the present dispute;
o in case that no amicable agreement can be found, the club X should inform the Dispute
Resolution Chamber, by 25 November at the latest, of the damage it assumes having
suffered from the alleged breach of the training agreement by the player. Within the
same deadline, the player in question should indicate to the Dispute Resolution
Chamber the amount he deems to be appropriate in order to compensate the club X for
the alleged breach of the training agreement.
- Following the above-mentioned decision, the two clubs and the player involved started
negotiations towards a possible amicable settlement. The positions of the opponents
were, however, too divergent and no agreement could be found.
- The English club was prepared to immediately pay compensation in the amount of Euro
100’000 to cover any compensation due from the club for the player’s training as well as
for the player’s alleged breach of the regulations.
- The player is of the opinion that the club X is not entitled to any compensation from him
personally.
- The French club maintains that, if the player in question agrees to immediately return to
the club X, it is entitled to compensation for the damage suffered due to the absence of
the player since 1 June 2004, and it claims the amount of at least Euro 1’000’000.
- In the event that the player would not return to the club X, the French club considers that it
would, obviously, suffer a much higher damage. Apart from the training compensation of
Euro 300’000, calculated on the basis of the general rules currently in force for a player
that has been trained by the club since the age of 11, the fact that the player concerned
breached the contract and in particular, the general principle of maintenance of
contractual stability stipulated in art. 21 of the FIFA Regulations for the Status and Transfer
of Players, should also be taken into account. Furthermore, it should be noted that the
club Y did not respect art. 13 of the FIFA Regulations for the Status and Transfer of Players,
since it did not contact the club X in order to inform the French club of its interest in the
player.
- With regard to the amount of the demanded compensation, the French club refers to the
transfer of two of its players to anther club for the amount of Euro 4’000’000. In this
respect, it emphasises that, after conclusion of the relevant transfer agreement, the
players had continued to play for the club X during two seasons and that in case of a future
transfer of the players, the French club will participate to the relevant compensation.
- Finally, the club X deems that sportive sanctions should be imposed on the player and the
club Y for having induced the player to breach the contract with the French club, in
accordance with art. 23 of the FIFA Regulations for the Status and Transfer of Players.
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Considerations of the Dispute Resolution Chamber
The members of the Dispute Resolution Chamber were summoned to pass a decision on this
matter by the Chairman pursuant to art. 1 point 6) of the Rules Governing the Practice and
Procedures of the Dispute Resolution Chamber.
The deciding body started its deliberations by recalling that, as already stated by the
Chamber on the occasion of its meeting on 9 November 2004, when it first dealt with the
case at hand, as a general rule, the FIFA bodies are competent to deal with disputes related
to the transfer of a player exclusively when there is an international impact. The principle
question, which the present procedure has to answer is whether the player is authorised to
be registered with the English club or whether he has to remain registered with the French
club. As a consequence, the existence of an international impact cannot be disputed.
In order to be in a position to properly judge the aforementioned main issue, as a preliminary
question, it is essential to examine the relation between the player and the club X. In fact,
the question whether the player has a legitimate right to register for a new club of his choice
is inevitably linked to the existence or not of contractual ties between the French club and
the player.
In this respect, the Chamber indicated that, as established in art. 42 par. 1 lit. (b) (i) of the
FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations), it falls
within the purview of the Dispute Resolution Chamber (DRC) to determine whether one of the
parties has committed an unilateral breach of contract without just cause. In the case that
the employment contract was breached by a party, the DRC is responsible to verify whether
this party is accountable for outstanding payments and compensation. Furthermore, the DRC
will establish the amount of compensation to be paid and decide whether sports sanctions
must be imposed (cf. art. 42 par. 1 (b) (ii) and (iii) in connection with art. 22 and 23 of the
Regulations and art. 3 point 2) of the Rules Governing the Practice and Procedures of the
Dispute Resolution Chamber).
In view of the above, the DRC concluded that, fundamentally, it was competent to decide on
the present case.
The members present at the meeting then analysed the legal nature of the training
agreement concluded between the player and the club X. In this respect, they acknowledged
that the French club had admitted that the training agreement is independent from any
employment contract possibly signed between the player and the club, and that therefore it
does not have the status and the binding effect of an employment contract. Furthermore, the
DRC noted that such point of view is clearly confirmed by the French national legislation. In
fact, art. 15-4 of the French “Loi du 16 juillet 1984”, reviewed by the “Loi no. 99-1124 du
28 décembre 1999”, provides that the integration of a player into a formation centre is
subject to the conclusion of a training agreement. Such agreement shall specify the
duration, the standards and the modalities of the formation period. Furthermore, it foresees
that at the end of the formation period an athlete, who intends to practice his sport on a
professional level, might be obliged to sign an employment contract with the sportive
association, which offered him the formation. The legislation makes thus a clear distinction
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between the training agreement and an employment contract. Moreover, the standard
training agreement agreed upon by the French employers’ (clubs) and the employees’
(players) representatives states in its art. 9 that in case the beneficiary of the formation
(i.e. the player) receives remuneration in exchange for his activity as football player, the
financial conditions must be set out in a separate employment contract. Finally, art. 458 of
the Charter indicates that also amateur players, who, per definitionem, are not bound to the
club by means of an employment contract, may conclude a training agreement.
On account of all the above, the DRC concluded that, undoubtedly, the training agreement
does not constitute an employment contract but rather an instrument meant to safeguard
and protect the rights of a player in formation. Yet, the Chamber emphasised that its
jurisdiction is limited to the consideration of disputes arising on the basis of an employment
contract concluded between a player and a club affiliated to an association. As a result, the
DRC judged that it was not competent to decide on the consequences of a possible breach of
the training agreement, and/or of the non-respect of the formal prerequisites for an early
termination of the relevant agreement concluded between the player and the club X for the
period from 1 July 2003 to 30 June 2006. That aspect does therefore only affect the French
authorities.
In continuation, the deciding body examined whether, apart from the training agreement,
other contractual ties possibly existed, which would have bound the player to the French
club.
To this regard, at first, the DRC acknowledged that, incontestably, the youth player’s contract
concluded between the player and the club had come to its natural termination on 30 June
2004. However, it would be necessary to evaluate whether the contents of the relevant
contract would have obliged the player to conclude a new contract with X, as it is claimed by
the French club.
The deciding body took note of the fact that, by means of the youth player’s contract in
question, the player had committed himself, in particular, to respect, the provisions
regarding the status of youth player’s (joueurs aspirants) included in the Charter. According
to the first paragraph of the introduction to art. 261 of the Charter, the club has the right to
insist that the player signs a new trainee or elite contract, depending on the age of the
player, upon normal expiration of the youth player’s contract. In case the club intends to
make use of that right, it has to inform the player accordingly by means of a registered letter
by no later than 30 April prior to the termination of the youth player’s contract (third
paragraph of the introduction to art. 261 of the Charter). Finally, point 2 of the relevant
provision establishes the consequences of the player’s refusal to sign a new trainee or elite
contract. In such a case, he shall not be permitted to sign for another club in the French
professional league for a period of three years.
The DRC agreed that, as claimed by the club X, on the grounds of art. 43 of the Regulations,
the Chamber has to take into account the contents of the Charter, provided the relevant
provisions are applicable to the case at hand. On the basis of that general consideration, the
deciding body evaluated the effect of the reference to the Charter contained in the youth
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player’s contract on the contractual relation between the player and the club X. In this
respect, the Chamber was of the unanimous opinion that, by means of the express and
unambiguous reference to the Charter, the provisions of the said regulations had become an
integral part of the youth player’s contract signed by the player and the French club.
Consequently, the DRC would have to duly consider the provisions of the Charter, and in
particular, its art. 261.
The deciding body acknowledged that the player does not contest the allegation of the
French club, that it notified the player in question of its intention to offer him a new trainee
contract on 1 March 2004. Moreover, the player maintains that it had informed the club X
that he would not accept a further contract in March 2004. In view of these facts, the DRC
concluded that the French club had duly fulfilled the formal prerequisites in accordance with
the third paragraph of the introduction to art. 261 of the Charter.
In continuation, the Chamber emphasised that the Charter clearly provides for the player’s
obligation to sign a new trainee contract upon normal expiration of the youth player’s
contract, provided the club offering him the formation requires him to do so.
As described above, it is established that, within the pertinent deadline, the club X notified
the player of its intention to offer him a new trainee contract after normal expiration of the
youth player’s contract. Equally, it is uncontested, that the player refused the offer and
preferred to sign a non-amateur contract with the club Y. The DRC concluded thus that the
player did not respect his commitments deriving from the relevant provision of the Charter in
connection with the youth player’s contract he had concluded with the club X.
The members present at the meeting continued by examining what consequences such
conclusion needs to have on the player. In this respect, the deciding body stressed the fact
that, on the one hand, art. 261 point 2 of the Charter explicitly foresees the consequence of
such a particular disrespect of the Charter and in particular, of the players’ duties linked to
the status of youth player’s. According to the relevant provision, the sanction to be imposed
on the player is the interdiction for him to sign for another club in the French professional
league for a period of three years. On the other hand, the DRC recalled that the Regulations
also provide for a sanctioning system to be applied in case of breach of an employment
contract.
The Chamber pointed out that, in casu, the breach of contract committed by the player
concerns a particularity of the French sportive legislation. In fact, the Regulations do not
provide for an obligations for players to sign a new contract with the club that offered them
formation after normal expiry of the prior employment contract. In view of this fact, and
considering that the regulations at the basis of the breach, i.e. the Charter, contain a clear
sanction for a player’s misbehaviour in that specific point (refusal to sign a new trainee
contract after normal termination of the youth player’s contract), the DRC was of the opinion
that there are no reasons, which would justify the application of other norms than those of
the Charter when establishing the sanction to be imposed on the player. Yet, as already
mentioned, art. 261 point 2 of the Charter limits the sanction to the interdiction for the
player to sign for another club in the French professional league for a period of three years.
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In particular, it does thus not prevent the player from signing a contract with a new club
affiliated to another association than the French Football Federation.
Moreover, the members present at the meeting emphasised that the system drawn up in the
Charter obliges the player to sign a new contract after normal termination of the youth
player’s contract, provided the relevant club offers him one. However, the obligation cannot
be qualified as an absolute one. In fact, the Charter explicitly foresees a specific sanction to
be imposed on a player refusing to sign the contract for the period after the conclusion of the
youth player’s contract, but does not stipulate that the player will in any case have to remain
with the club that offered him the formation. In other words, despite the general obligation
imposed on the players, the Charter leaves them the possibility to refuse the proposed new
contract in application of a clearly defined sanction.
For the sake of good order, the DRC stated that a more restrictive line, e.g. an absolute
obligation for the player to remain with the club that offered him the formation, would, in all
probability, anyway be in conflict with general labour law principles. In this respect, the
deciding body took note that on the basis of an opinion formulated by the “Comité National
Olympique et Sportif Français” within the scope of a conciliation procedure in a dispute
between a French football player and a French club, already the current system provided for
by the Charter appears to be questionable with regard to its legality. In particular, the
relevant body emphasised the principle that a provision contained in a collective bargaining
agreement may not be less favourable to the employee than what is foreseen by the national
law. Yet, the deciding body stated that with regard to the present matter, that question may
remain open.
On account of all the above, the DRC concluded that, on the basis of the applicable norms,
no contractual ties exist anymore between the player and the club X. The Chamber decided
that the player in question is thus not obliged to sign a new trainee or employment contract
with and to return at the French club. Furthermore, the player cannot be prevented from
moving to a club affiliated to an association other than the French Football Federation, since
the direct consequences of art. 261 point 2 of the Charter only apply within the territory of
the said federation. Finally, no sports sanctions may be applied neither on the player nor on
the club Y.
Having come to this conclusion, the deciding body granted the player the authorisation to be
registered with the English club and thus confirmed the provisional decision taken by the
FIFA administration on 2 September 2004.
In this respect, the DRC took the opportunity to clarify that the decisions of the FIFA
administration regarding the registration of a player are provisional and not final ones. As a
consequence, they do not fall under art. 60 par. 1 of the FIFA Statutes. Furthermore, the
deciding body deemed it appropriate to emphasise that the relevant decisions do not
prejudice any further pronouncement that the competent decision-making bodies of FIFA
may pass at a later stage in the pertinent affair. In continuation, the DRC recalled that the
provisional decisions are limited to and exclusively deal with the registration issue.
Therefore, they do neither touch nor affect the economical rights of the parties involved, who
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are entitled to ask for compensation in the proceedings pending in front of the DRC. In fact,
only the DRC is entitled to deal with the substance of a contractual dispute between a player
and a club with international impact.
According to art. 17 of the Regulations, when a player signs his first contract as nonamateur, or when a player moves as a non-amateur at the end of his contract but before
reaching the age of 23, training compensation shall be paid by the player’s new club to the
club(s) involved in the training and education of the player.
At the time of the conclusion of the employment contract with the club Y, the player was 18
years old and at the end of his youth player’s contract with the club X. The DRC established
that, under these circumstances, training compensation is due. However, since, as
previously established, no contractual ties related to labour law existed anymore between
the player in question and the French club, no further compensation will have to be paid
neither by the player, nor by the club Y (cf. art. 17 of the Regulations).
With regard to the amount of compensation, the Chamber referred to the FIFA circular
no. 826 dated 31 October 2002, which provides for the indicative amounts of compensation
to be paid. The relevant figures are subject to review by the DRC. A club is thus entitled to
object to the amount of training compensation calculated on the basis of the indicative
amounts mentioned in the said circular and to prove that such compensation is clearly
disproportionate. Obviously, the burden of proof has to be born by the objecting club. In the
absence of sufficient evidence the indicative amounts apply. In this respect, the deciding
body stressed in particular, that a club claiming that, in a specific case, the indicative
amounts are disproportionate, has to prove that the effective costs incurred by the club for
the formation and the education of the player concerned were higher (or lower) than the ones
calculated on the basis of the figures mentioned in the circular no. 826. Only concrete
evidentiary documents, such as invoices, costs of training centres, budget etc. may used as
justification for a possible adjustment. In fact, exclusively economic factors may be taken
into account.
The DRC took note that, in its final submissions, the French club referred to the transfer of
two of its players to another club and indicated that those players had left the club after
having made use of the club’s formation facilities for several years. The club X is of the
opinion that the position of these players is comparable to the one of the player concerned
in the present case. On these grounds, the club deems that compensation of at least
Euro 4’000’000 would be reasonable for the transfer of the player. Yet, despite having had
the opportunity to do so, the French club did not present any documentary evidence related
to economic factors, which would justify such a considerable divergence from the indicative
amounts. Consequently, the Chamber decided that there are no reasons for an adjustment of
the indicative amounts mentioned in the circular no. 826.
According to the indications contained in the youth player’s contract, which was formally
accepted by the French Football Federation on 22 July 2003, the player was registered with
the club X from the 1997/1998 season. He left the club in summer 2004 and was thus
registered with the French club between the ages of 11 and 18. By means of his transfer to
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the club Y the player moves from a first category club in France to a first category club in
England. On the basis of the applicable provisions, i.e. art. 7 of the Regulations governing
the Application of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the
Application Regulations), and by using the indicative amounts mentioned in the circular no.
826, the DRC established that the English club has to pay the amount of Euro 300’000 as
training compensation to the club X. In fact, between the ages of 12 and 15, thus the first
three years, the amount is based on the training and education costs for category 4, which in
Europe correspond to Euro 10’000 per year (cf. art. 7 par. 2 of the Application Regulations).
For the period between the ages of 16 and 18, thus the next three years, the amount is
based on the training and education costs for category 1, which in Europe correspond to
Euro 90’000 per year (cf. art. 7 par. 4 of the Application Regulations).
Decision of the Dispute Resolution Chamber
1. It is established that no contractual ties related to labour law exist between the player
and the club X.
2. The player is not obliged to return at and to sign a new contract with the club X.
3. The player is entitled to be registered for the English club Y.
4. The club X is entitled to Euro 300’000 as training compensation from the club Y.
5. The amount due to the club X has to be paid by the club Y within 30 days as from the date
of notification of the present decision.
6. In the case that the club Y does not respect the above-mentioned deadline, a default
interest payment of 5% p.a. shall be applied on the amount of compensation indicated
under point 4, as from the day following the expiry of the fixed deadline.
7. If the relevant sum is not paid within the aforementioned deadline, the present matter
shall be submitted to the Disciplinary Committee of FIFA, so that the necessary
disciplinary sanctions may be imposed.
8. All other claims of the French club X are rejected.
9. According to art. 60 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 10 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).
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The full address and contact numbers of the CAS are the following:
Avenue de l’Elysée 28
1006 Lausanne
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:
Urs Linsi
General Secretary
Encl.
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